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Isaac Sooe guilty on one charge of fraud - High Court judgment

FState businessman acquitted of corruption and money laundering charges however

 

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 89/2012

In the matter between:

THE STATE

and

TEBOHO NHLANHLA TLAOLE LIOMA - Accused 1

ISAAC MOHOLOYA SOEE - Accused 2

VIRGINIA MOSEIA - Accused 3

SEKESE PAULUS MOTAUNG - Accused 4

MOTSEKE DAVID MPHUTI - Accused 5

NTSIKELO NELSON MAJOLA - Accused 6

VUYISILE JAMES MAJOLA - Accused 7

PHATO GETRUDE RAMAEMA - Accused 8

MALEHANA GESLINA LESETLA - Accused 9

NTEBOHENG SARAH LESETLA - Accused 10

TOMO CHARLES TEATSANE - Accused 11

MENEER PETRUS TEATSANE - Accused 12

MARIA MAHOTO LETSELA - Accused 13

HEARD ON:

JUDGMENT BY: HANCKE, J

DELIVERED ON:

DRAFT JUDGMENT

[1] The 13 accused are indicted with a number of charges, 78 in total, which charges differ from contravening s2(1) of the Prevention of Organised Crime Act, Act 121 of 1998 (POCA), as well as several other sections of POCA, fraud, corruption and money laundering.

[2] All the accused pleaded not guilty. Accused 11 and 12 denied participating in any enterprise. As far as count 55 is concerned they denied that they made any misrepresentations, that they acted unlawfully or that they possessed the necessary mens rea. As far as counts 56 – 64 are concerned they denied each and every element thereof and require the State to prove all the elements. Regarding counts 65 and 67 accused 11 denied giving a benefit and puts the State to the proof thereof. All the other accused elected to remain silent and require the State to prove all the elements of the alleged crimes.

[3] After the plea proceedings were finalized Mr Langenhoven placed it on record that accused 2 is recovering from cancer; that on Thursday the 10th of May 2017 he underwent surgery and that he was unfit to proceed with the trial. He applied in terms of section 159 (2) of the Criminal Procedure Act that the trial proceeds in the absence of accused 2 until his health improves. The necessary application was granted and accused 2 was excused from further attendance up and until his health improved sufficiently.

[4] Mr Swanepoel tendered into evidence Exhibit Seoe D, a notice of motion in case nr 1302/2004, where accused 2 was the applicant applying for a declaratory order that he be declared the sole owner of the business known as Mabolela Distributors.

In his affidavit accused 2 alleged that Lefa Molefe submitted the tender document on his behalf. He described himself as the managing director which was not true, because he was only an employee of Mabolela Distributors.

After the tender was submitted the contract was awarded to Mabolela Distributors for 3 consecutive years, namely 2002, 2003 and 2004.

Accused 2 then authorized his then girlfriend, accused 3, to enter into the contract with the Department of Education, annexed as annexure “D”, which was signed by accused 3 on the 10th of October 2001. Accused 2 also instructed accused 3 to open a bank account in the name of Mabolela Distributors with FNB Witsieshoek. After the contract was awarded to Mabolela Distributors, the books were delivered to schools and payments were made to Mabolela Distributors. Annexed to the documents was a confirmatory affidavit by accused 3.

[5] Ms Ntombikayise Catherine Ngcwangu, employed as a clerk by the Department of Justice in the registrar’s general office, Free State High Court, Bloemfontein was called as a witness.

The following documents were handed in by the said witness:

(i) All the documents pertaining to case 2845/2002 involving the parties NN Majola and 2 others (Vuyisile James Majola and Tebogo Matojane) v Moeng MA;

(ii) Majola exhibit E;

(iii) The summons in case 1302/2004, where accused 2 is the 1st applicant and accused 3 the 2nd applicant. She testified that some of the documents were uplifted on the 25th of October 2005 and never returned;

(iv) Documents in respect of case 2648/2013 between the same parties and inter alia containing a founding affidavit of accused 2 and a confirmatory affidavit of accused 3; and a

(v) 2004 application under file no 2648/2013.

[6] The next witness called by the State was Stephanus Abraham Marais, a former employee of the Department of Education, who in the meantime retired due to medical reasons. He testified that he was attached to the anti-corruption and fraud section of the Department and that he has knowledge of the case.

[7] He testified that one of the persons laid a complaint relating to Mr Komail and Mr Raliteng. The witness testified that he was instructed by accused 1 that all the cases not handled by him were to be handed over to Terry Terblanche and Ben Calitz of the SAPS. He handed over the files to the said two persons.

He testified that Lefa Molefe laid a complaint to the effect that moneys owed to him was not paid despite the fact that he was the owner of the company who obtained a successful tender. In this regard he referred to the tender documentation of Mabolela tender no 63. According to the tax certificate it was issued to Lefa Alfred Molefe who was the 100% owner of the business.

[8] The witness also testified that the Department was not entitled to pay out the money to anyone else but Molefe, unless Molefe authorized that the money be paid to someone else. He testified that he also brought this matter to the attention of Calitz and Terblanche and that the matter was further investigated by Terblanche. The witness also handed over tender documents to them regarding tenders which were successful. The witness referred to tender document 48 involving Matwabeng Distributors where the tax certificate was in the name of MM Letsela (accused 13) with ID no 530724 0740 08 8. According to this documentation MM Letsela was the sole owner of the business since 1998 and the declaration of interest was signed by Maseko. Questions as to whether the person was employed by the Department; the relationship with the Department, family and friends connected to the Department were replied to in the negative. The document was handed in as Letsela A.

The witness also dealt with tender documentation in respect of tender 63 concerning Lefa Alfred Molefe where the same questions were answered in the negative and the owner mentioned as L Molefe with ID no 640604 5559 08 8.

[9] He also referred to tender no 53 involving Matsapela Distributors, signed by Taetsane MP, accused 12 with ID no 680801 5449 08 5 where the questions on page 20 of the Declaration of Interest were not answered. Accused 11 and 12 were involved in that tender which was successful. The memorandum of agreement was between the Department of Education and Matsapela Distributors. It was signed by accused 1 on behalf of the Department as well as a witness JJ Komail. The witness confirmed that the police obtained these documents from him and testified that the memorandum of agreement was usually attached to the tender documents if the tender was approved.

[10] Regarding tender no 81 in the name of MD Services, the owner being MD Mphuti, accused 5 with ID no 591109 5696 08 7, the memorandum of agreement was signed on behalf of the Department by accused 1 and JJ Komail signed as a witness. Regarding page 20 the questions there were answered in the negative.

[11] Tender no 157 involved Moeng Enterprises which was represented by Moeng MA. Regarding the declaration of interest, the questions were left unanswered. According to the application, the owner was MA Moeng with ID no 570618 5483 08 5. It was signed on behalf of the Department by accused 1 and as a witness JJ Komail. These documents were handed over to Mr Terblanche.

In cross-examination by Mr Potgieter, he testified that Mr Komail was the person who brought the tender to the committee. Part of the process was the filing of a tax clearance certificate being a requirement, otherwise it would be queried by Treasury.

He was also asked about the different committees, including the inter departmental committee and the tender evaluation committee. As far as Mr Komail is concerned certain documents were signed by him, but he passed away a long time ago. He was also referred to a memorandum of agreement where the name TNT Lioma was added in a different pen and in a different handwriting. It also appeared that Lioma signed the document 15 days after it was signed by Komail as a witness. The witness testified that although he was not responsible for the investigation he was however involved in the investigation.

[12] Johanna Susanna Joubert testified that she was employed by the Department of Education in the capacity as Senior Provincial Administrative Officer. She was involved in the opening of the tender box after the tenders had closed, usually at 11:00AM. At that stage the whole tender section was present to open the bids. Inside were envelopes which were opened and each tender was registered and received a certain number. On the documents, including the tax clearance certificate and the FST 8-form, a departmental stamp must be affixed and the date when the tender closed, indicated.

The detailed writing on the outside of the file included the name and number of the company, the tax clearance certificate, percentage mark-up and district where the company was operating or registered.

Mr Komail was an Assistant Director, book provision and tenders. Mr Motaung, accused 4, was the Senior Provincial Administrative Officer (SPAO) who was also involved in the opening of the tenders.

[13] The witness was asked about tender no 63 and gave evidence regarding the contents of the said application. She testified that each tender application should contain the prescribed pages. After opening the tender, it was evaluated by the people responsible for book provisioning who made the necessary recommendations to the Departmental bid committee chairperson and members who thereafter made a final recommendation to the HOD for approval. As far as the role of Mr SP Motaung, accused 4, is concerned as Senior Provincial Administration Officer, he assisted the members to go through the documents and Mr Komail made the final submission to the departmental bid committee. Mr Motaung and another person from Book Provision, whom she could not remember, worked with Mr Komail.

[14] The departmental tender committee was chaired by Mr Lioma, being accused 1, and Mr Komail made submissions to this committee for recommendation and approval. The witness was present during the meetings and involved in an administrative capacity. The minutes were taken by Mrs Kent. She testified that sometimes the recording machine was switched off.

In cross-examination she testified that the HOD did not play any role initially and only after the final recommendation was made, did he have the authority to approve or reject it. The process itself was handled by Mr Komail and the HOD did not know who submitted the applications. The recommendation was made to the Departmental bid committee in the format of a written submission by Mr Komail. He testified that the Departmental tender bid committee acted on the aforesaid recommendation.

[15] The next witness called by the state was Mr Monapule Andries Moeng who was warned in terms of Section 204 of the Criminal Procedure Act. He testified that accused 6 was his friend and that he introduced the witness to accused 7 as his brother. During 1999 there was a Thanksgiving ceremony at his house which was attended by accused 6. There was a conversation between the witness and accused 6. At that stage the witness was running a butchery and bottle store in Botshabelo. Due to several break-ins, the business was running at a loss. Accused 6, who was the chairperson of the Tender Board, told witness to come to him so that they can see what can be done. Tenders for school books were to be advertised, he should meet with accused 6 and should submit a tender.

As far as accused 1 is concerned, he testified that he was working at the Department of Education and that he addressed them on how they must handle these tenders.

[16] The witness also referred to Ajetu Construction, which successfully submitted a tender with the help of accused 6 and where the proceeds were shared amongst the witness, accused 6 and others. This tender is however not part of the present case.

[17] As far as Moeng Enterprises was concerned, the witness applied for a tender in the name of the said business. The witness applied for the tax clearance certificate through his bookkeeper, Dynamic Finance, but the following information on the tender documents were filled out by accused 6, namely the particulars on pages 7, 8, 13, 14, 15, 17, 19, 20, 21, 22, 23 and 24. The witness testified that accused 6 took the document and returned with it afterwards, completed, whereafter the witness attached his signature to it. At that stage the witness, accused 6 as well as accused 7 were present. The witness then took the application to the Omni Building before 11:00AM.

Later, the successful tenderers were called to the said building’s boardroom, where they were addressed by accused 1. The witness signed a document, handed in as exhibit Majola B, being a contract between the department and the witness, dated 10 October 2001.

[18] After the meeting where he met accused 1, the witness called accused 6 to meet him and to thank him, because he was the one who assisted the witness to obtain the tender. Accused 6 asked him whether he had enough money to start the tender and when the witness replied in the negative, accused 6 indicated that he would call his brother who would lend the witness money. They arranged for a date where the witness told accused 7 that he wanted money. Accused 7 said that he would give him R3000 to start the business. This money was apparently used for diesel and the salary of an employee. Eventually the witness received R12 000 and he also hired a taxi driver as well as a family member of accused 6.

[19] At one stage, the witness received money from the department and he was contacted by accused 6 who informed him that the money had been paid. They should come together for a meeting. According to the witness, a conflict arose at the meeting. The meeting was attended by the witness, accused 6, accused 7 and Tebogo Matejane. At that stage accused 7 was a teacher in the employment of the Department of Education whilst Tebogo Matejane also worked at the Department of Education. At the meeting the witness indicated that he wanted to return the R12 000 to accused 7 and R3000 to accused 6. The issue of tax was discussed and accused 6 indicated that he could take witness to somebody who could help him with that. The witness declined this offer because at that stage he had a good relationship with his bookkeeper at Dynamic Finances.

[20] When the witness wanted to give accused 6 R3000, he refused it because he indicated that they must share the money equally. According to the witness he received an amount of R130 000 as a first payment. The others involved also indicated that they agreed with accused 6 and as the witness put it he was “out voted”.

Accused 6 told the witness that this job was only the beginning. There were also other tenders to be awarded to the witness. As far as the sharing of money was concerned, he owed R12 000 to accused 7 and the share of each one was about R25 000. The witness did not feel good about this, but according to him, he was forced to share the money because they used their brains to assist him and it was because of them that he was awarded the tender. The witness also told them that they must account for the money and he himself wrote a letter to his bookkeeper in this regard. The witness then asked them for their account numbers, but accused 6 said he was taking the wrong route, they only wanted cash. According to the witness, they blatantly refused to give him their account numbers and they wanted him to hand over the money in cash.

[21] On a Saturday, witness, accused 6 and accused 7 went to the bulk teller of Absa Bank, Brandwag branch. He withdrew R98 000. The money was shared on the basis that the R12 000 was paid to accused 7 and accused 6 took about R11 000 each for other people including Mr Komail from the Department and Mr Lioma, accused 1. The witness indicated that he must pay tax and that his wife who assisted with the books must also get something. After making all the payments an amount of R55 632,35 was left in order for the witness to carry on with his business. He testified that accused 6, 7 and Motejane received R25 000 each. The reason why he agreed to the payment of the aforesaid amounts, was that accused 6 said that he worked in the government and without him, he would not get anything from the government. There was also a feeding scheme mentioned by accused 6. He said that if witness made a fuss about such a small amount, he will get nothing from that tender, so there was no use for him to fight them.

[22] After his ordeal, he was not happy with the situation and he obtained advice from his bookkeeper who told him to lay charges. The witness went to the police where he laid the charge and he also consulted his attorney, Mr Nico Botha from Naudes.

At one stage he had a telephone conversation with accused 1 who told him that he must pay him money, that some other people will come to him to borrow money and that he must help them. He testified that he in fact gave several people money:

R1000 to Motejane to go to Qwa-Qwa, R5000 to accused 6 who experienced problems with his vehicle and Komail wanted R3000 so he gave him a cheque. Although it was supposed to be loans, no one paid back the money.

[23] At some stage accused 1 came to the witness’s place, he parked outside and remained in his vehicle. The witness went to him and he gave him an amount of between R3000 and R5000 in cash, he could not remember the exact amount.

He testified about a summons that he received from accused 6. The summons was taken to his attorney, Mr Botha from Naudes. This matter, according to the witness, was later struck from the roll.

[24] In cross-examination by Mr Potgieter, he confirmed that accused 6 and 7 issued summons against him and that they were no longer speaking to (greeting) each other. As far as the status of accused 6 was concerned, it was put to him that he was the chair of the Tender Board during the period 1998 until 2001. He was asked whether accused 6 was inundated by people to assist them with tender applications and he answered in the positive. As far as the tenders were concerned, it was advertised in the Tender Bulletin. Accused 6 told him there were tenders and gave names whom the witness had to approach. Through the assistance of accused 6 the witness applied for the said tender.

[25] He was also cross-examined regarding the completion of the tender documents. According to him accused 6 completed the forms and he added that when accused 6 arrived with the forms it was already completed or that the completed forms came with accused 6. It was put to the witness that accused 6 will deny completing the forms and he replied that accused 6 was the one who came with the completed forms. It was also put to him that accused 6 was no longer the chair of the tender board because his term expired at the beginning of 2001 whereupon the witness testified that he did not have knowledge of this.

[26] The witness was also asked about his bad financial position when applying for the tender. He agreed that he did not have the necessary money to execute the tender and the reason why accused 6 introduced him to accused 7 was to kick start it. As far as exhibit Majola B is concerned it was signed on the last page by accused 1 on 21 October 2001 and the witness who signed next to him was Mr Komail. The reason why he then called accused 6 was because he assisted the witness all the way and he wanted to thank him for assisting him. As to whether a partnership was formed between himself, accused 6 and accused 7, the witness replied that he did not remember talking about a partnership because he only asked them to borrow money and he was the sole owner of Moeng Enterprises. He was asked about the hiring of a truck and testified that the taxi driver who assisted him was appointed on advice by accused 6. He was also asked about the withdrawal of R98 500 and agreed that accused 7’s expenses amounted to R19 050. The witness also referred to an amount of R11 500 which was supposed to go to Mr Komail and to accused 1. When it was put to him that accused 6 and 7 will deny the sharing of the money as testified by the witness, he replied that there was a discussion about the money going to Komail as well as accused 1. According to the witness accused 6 indicated that he was taking the money to accused 1 and Komail.

[27] The allegation that accused 1 came to his house was denied by the defence, whereupon the witness replied that he remembered it very well. Before that, there was a conversation between the witness and accused 1 and the witness gave him directions to his house. He couldn’t remember the exact amount of money he gave accused 1 but it was between R3000 and R5000. Accused 1 remained in his car which was a black BMW vehicle. He testified that he was not bribing him, but he gave the money because they assisted the witness in obtaining the tender. He testified that he gave him a cheque made out in “cash”. When it was put to him that accused 1 will deny receiving any money from the witness, he persisted that he gave accused 1 the money, either cash or a cash cheque. The witness was confronted with his statement dated 30 April 2004, where he mentioned that he never paid accused 1 directly. He always gave accused 1 money through Mr Mojola (accused 6). He was asked why he did not mention it in the statement and he replied that it slipped his mind. He didn’t mention it to Inspector Terblanche.

[28] The witness was also confronted about his statement where he mentioned that Matejane completed some of the forms. He replied that Matejane was writing, that the Majolas were also there and that accused 6 told him what to write.

The witness was asked to search for the cheque he gave to accused 1. After the matter resumed he was asked whether he could find the cheque in respect of accused 1 to which he replied in the negative. He found one cheque in the amount of R5000, dated February 2003, made out in favour of accused 6.

In re-examination the witness was referred to his bank statement on which it appeared that an amount of R98 000 was withdrawn from it and that an amount of R180 044 was deposited into it on the 13th of December 2001.

[29] The next witness was Mr Jabulani Simon Maseko, who was employed by accused 5. According to the witness accused 5 had a funeral parlour business known as Tembaletu Funeral Services (TFS).

On the 5th of June 2001 whilst he was working at TFS accused 5 told him that a certain person will arrive, namely accused no 13. He used to see her at TFS when she visited accused 5 about once a month.

[30] On the 5th of June 2001 accused 13 arrived, they talked and she asked the witness to attach his signature to a document handed in as Letsela B. He didn’t peruse the document, he only attached his signature to the document. The name Matwabeng Distributors appeared on the first page of the document. According to the witness the following pages were completed by accused 13 in his presence, namely pages 1, 7, 8, 13, 14, 15, 17, 19 and 20. The witness signed on page 20 whereafter the accused left. The documents Letsela A (memorandum of agreement) and Letsela B (tender document) were handed in by the state through the witness. Thereafter he went to the Department where he left the documents on a table.

[31] In cross-examination by Mr Langenhoven, he testified that accused 13 brought the documents to TFS. Regarding the Letsela A document, he testified that he received it as a blank form with no particulars filled out on it, and that he delivered school books at several schools including in Ficksburg and Petrus Steyn.

[32] Johanna Petronella Heyneke testified that she is employed by Vodacom as a forensic liaison manager responsible for the release of call related information. It appears that she has vast experience regarding cell phones and that since 2001 she has testified in court cases at least once a week.

She was requested to release information with regard to various cell phone numbers, amongst others that of accused 1 in respect of his cell number 082 564 5805 for the period May 1999 till April 2003. According to the witness the itemised billing is generated electronically with regard to outgoing calls, sms data, etcetera and included the time and the duration of the calls. It is not possible for a person to change or manipulate the information. The information is limited to calls and sms messages made from a certain number but there is no indication regarding calls received or missed calls.

Aria Sipeko Moholo testified that she was working for Letsema Logistical Service as a secretary with offices in Westdene, Bloemfontein. The owners were Charlie Masopa Lekitlane and Malefu Lekitlane. She worked as a receptionist most of the time and received visitors, answered the phone, did invoices and performed typing duties as well.

She recognised a document Kopanang 1, because Mr and Mrs Lekitlane gave it to the witness at his office in Westdene. Regarding the memorandum of agreement, exhibit Kopanang 2, she testified that she heard Mr Lekitlane speaking to accused 1 on the phone about it. The document Kopanang memo 3 was signed by her on instructions of Mr and Mrs Lekitlane. According to the document the witness owned 50% of the shares in a company and the other 50% was owned by PG Ramaema (being accused 8). She also testified that page 24 of the tender documents was completed by herself. She received no payment whatsoever from the Department of Education. She testified about a conversation between herself and Mr Lekitlane after the witness resigned from the business, during which Mr Lekitlane indicated that he wanted to withdraw from the company that she worked for. In cross-examination the witness testified that she just wrote down what she was told to do. She attached her signature to the form whilst it was blank. She also testified that she does not know PG Ramaema (accused 8).

[33] It was put to her that accused 9 met with Mr Lekitlane in Bloemfontein and that accused 9 and Mr Lekitlane knew each other. Apparently they met in Qwa-Qwa and accused 9 was assisted by Mr Lekitlane with the completion and submission of tender documents. He later told her that her tender was successful and also told her to open a bank account in the name of Koponang Women Enterprise. Mr Lekitlane told accused 9 that it would be wise to nominate her children as beneficiaries in case she dies. Accused 9 actually rendered services for and was paid by the Department. It was also put to the witness that accused 8 can only assume that PG Ramaema was written on the tender documents because this information was given to Mr Letkitlane as representing the name of one of her children. She was not able to comment on these allegations.

[34] Captain Jan Van der Merwe testified that he was the investigating officer in the case of TC Teatsane 760/10/2003, being accused 11 in this matter. Regarding TC Teatsane’s bank account he could not find a section 236 statement. In the two dockets he found 2 statements, one in each docket pertaining to SP Motaung.

According to the witness, there were bank statements in the docket due to the fact that section 205 – summonses were issued by a magistrate and served on the bank. No member of a bank will issue a statement without a section 205 summons. He was not able to trace the original docket, because it dated back 13 years and he was only able to trace a duplicate docket. In cross-examination he testified that the case docket was registered on an electronic system, which was called the CAS Administration System.

The witness was cross-examined in detail by Mr Nel about the contents of the docket, including the witness’s diary as well as the memorandum prepared by him. According to him the investigation diary was no longer available. He insisted that they cannot obtain bank statements without authorisation in terms of section 205 and section 236 of the Criminal Procedure Act.

Col Barry William Senatla testified that he was part of the investigating team and that he took a warning statement from accused 13 on the 1st of October 2003 after explaining her rights to the witness. This document was handed in as part of exhibit Letsela.

The witness also took a warning statement of accused 4 which was reduced to writing. This statement concerns certain tender applications. The said statement was handed in as exhibit Motaung 1.

In cross-examination by Mr Potgieter, the witness testified that he was aware of certain calls which were intercepted by the police. The witness was not satisfied with this procedure. He was asked whether he conveyed this procedure to the prosecutor and he answered that he was not sure, because it happened a long time ago. In fact, he testified that he was unhappy about what was going on but he was not sure whether he mentioned the aspect of interception of telephone calls to the prosecutor.

He was also asked about a conversation to the effect that if accused 1 was to be incriminated, a promotion would follow. He replied that he could remember such a telephone conversation between Col Erasmus and another person.

[35] As to how he became aware of the telephone interception he replied that during the morning parade superintendent Erasmus informed them about it. Apparently a certain Captain Mahloko listened to the conversations but he has died in the meantime. The interception of the phone calls related to conversations of accused 1 and despite the fact that the witness objected to the interception, they proceeded with it. In cross-examination by Mr Langenhoven, the witness testified that Erasmus resigned from the SAPS. He also testified that he wanted to find out whether the goods were delivered in accordance with the tenders, but Erasmus refused to investigate this aspect.

[36] It also appeared from further cross-examination that Erasmus was at one stage attached to the security branch and when it was apparent that a former MK was allegedly involved in a matter Erasmus instructed them to charge this person. As far as the relationship between him and Erasmus was concerned, it was acceptable in the beginning, but later on it turned sour. The witness also referred to conflict between them and that he confronted him during a parade about the way in which the matter under investigation was handled. As far as interception was concerned, he reported it to deputy commissioner Le Roux and stated that the matter was later investigated by Col Moteka.

[37] After cross-examination, Mr Swanepoel applied in terms of section 190 (2) of the Criminal Procedure Act to declare Col Senatla a hostile witness. After the matter was argued the application was refused.

[38] Lizelle De Witt testified that during 2001 she was an Assistant Director at the Department of Education responsible for the payment of stationery and the distribution thereof. At some stage accused 1 called her and inquired about the non-payment of the statement of Kopanong Women Enterprises. During cross-examination by Mr Potgieter she conceded that this firm was a small business enterprise which was dependant on the money from the State.

[39] Luanne Kent was employed by the Department of Education during 2001 and responsible for the keeping of the minutes of tender meetings. Her job description was “senior provisions administrative clerk”. She testified about the procedure regarding the handling of the tenders after it was opened by the responsible officials. She testified that if it was a book tender the documents were then handed to the book section where accused 4, Komail and others worked. After the opening of the book tender, Komail took it to the book section. She gave details about the discussion during the tender meetings where accused 1 acted as the chairperson. She cannot remember that accused 1 had at any stage tried to promote a certain tender. She also testified that the recording machine was switched off from time to time at the instructions of accused 1 although the words “switch off” do not appear on the record. It was evident from her evidence that she does not have a good memory about the events which took place during these meetings.

[40] At this stage several documents were handed in by Mr Swanepoel on behalf of the State:

·          Certain proceedings as exhibit Motaung B.

·          Certain documents in respect of accused 13 as Letsela E (concerning paragraphs 27 and 100-110).

·          As far as the civil matter Majola F was concerned, Mr Potgieter objected on the basis that he did not have sight of it and the admissibility of the said document stood over to be decided after Mr Potgieter had sight of it.

·          The matter was then postponed to Tuesday, 7 November 2007, 10:00AM to continue until 15 December 2017 and the bail of the accused to be extended on the same terms and conditions.

[41] On resumption of the case on 7 November 2017 the state called Mr Lefa Alfred Molefe. He testified that he was employed by accused 2 as a driver delivering goods on his behalf. He started working for accused 2 at a supermarket and he also assisted him with his bottle store. He earned about R1600 per month.

Mr Molefe testified that he was the owner of Mabolela Distributors. He was advised by accused 2 to start the business. With regard to a book tender during June 2001 accused 2 told him to apply for the tender. Mpompo, accused 2’s sibling, was instructed by accused 2 to complete the application form. Mpompo also assisted him to obtain a tax clearance certificate. At that stage the witness was the sole owner of the company.

[42] The witness testified that accused 2 promised him a car and a house as well as R50 000. His promises were not honoured. He testified that he occupied a house but it was not registered in his name and he eventually moved out of the house. The motor vehicle which was made available to him was taken back by accused 2. Due to the fact that accused 5 was very close to accused 2, he approached accused 5 and explained to him what happened.

The witness testified that he did not open an account in the name of Mabolela distributors nor did he authorise any person to do so.

At one stage he attended a wedding at accused 2’s house. It was also attended by accused 1, a friend of accused 2. After the wedding accused 2 instructed him to load some liquor, 5 or 6 bottles of whiskey, into accused 1’s car.

[43] As far as the memorandum of agreement is concerned, he identified the signature of accused 3. When he complained to accused 2 about not receiving anything from the tender, accused 2 promised that he will fix it. Initially he did nothing when this promise did not materialise. At one stage he approached the Department of Education after the police made him aware of Mabolela Distributors. It also appeared that an application for a declaratory order by accused 2, to the effect that the company belongs to him, was served on the witness.

He testified that accused 5 received the first cheque on behalf of Mabolela Distributors from the Department of Education without his authorization.

In cross examination he was asked about occupying an upper-class house in Qwa-Qwa to which he replied he was guarding the house. It also appeared that accused 2 made an Opel vehicle available to him. It was put to the witness that accused 2 was married in community of property, that he experienced marital problems and that he did not want his estranged wife “to follow the money”. Therefore accused 2 requested the witness to accommodate him by signing the tenders to avoid trouble with his estranged wife.

[44] He also testified that the police came to him during 2003, that they informed the witness about the investigation against him, where after he approached the Department of Education with his complaint. It was also put to the witness that accused 5 received cash on behalf of tenderers because he was residing in Bloemfontein, that accused 2 instructed accused 3 to open a bank account on behalf of Mabolela Distributors and that accused 3 (it is quite clear that Mr Langenhoven by mistake referred to accused 4) only came into the picture after the tender had been awarded. Accused 3 entered into an agreement with the Department after the tender was awarded. It was also put to the witness that he did not attend the wedding of accused 2’s sister, but he was adamant that he was there and he in fact loaded 5 to 10 bottles of whisky into the car of accused 1 on instructions of accused 2. After the wedding he received between R100 000 and R200 000 for the tender.

[45] Benjamin Vredeman Calitz, a Warrant Officer employed by the South African Police Department, testified that he started investigating thefts at the Department of Education during 2001 -2002. Mr Faan Marais of the Department of Education approached him and warrant officer Terblanche as a result of Mr Molefe’s allegation that although a tender was allocated to him, he did not receive any money for the tender. According to the first information of crime, this happened on the 1st of November 2002 when Marais contacted Warrant Officer Terblanche about the Molefe matter. On 5 November 2002 the first statement was taken from Mr Molefe. The witness also served a subpoena on Mr Julian Ralph Pope from Bethlehem who passed away in the meantime. As far as Mr Lange is concerned he had a stroke and was therefore unable to testify.

[46] The witness testified that it was his duty to deliver section 205 subpoenas to the banks, in particular to be served on a specific branch where the relevant accounts were kept. According to him there were more or less 600 accounts involved. He testified that he was also involved in the taking of section 236 statements. At one stage they experienced problems with FNB and a warrant of arrest was issued for a certain Mr Jan Kruger for non - compliance of section 205 subpoena’s on two occasions. At one stage they received a vast number of boxes containing bank statements all at once. The witness also testified that they never procured a bank statement without a section 205 subpoena, and that no bank would furnish/make available a client’s bank statement without a section 205 subpoena.

The witness was extensively cross examined, in particular by Mr Nel, about the possibility of obtaining a bank statement without the necessary section 205 subpoena. It also appears that a bank was asked to furnish statements for a certain period that was not authorised.

[47] Maria Cornelia Hanekom, employed by Standard Bank Bethlehem as an accountant, testified that she was familiar with bank statements and the issuing of section 205 subpoenas. She testified that she recognised the section 205 subpoena before court which was served on her. As far as the Letsela matter was concerned, she identified her own signature and stated that the bank statements pertaining to Matwabeng Distributors were supplied by the bank to the police. The affidavit was not commissioned but she confirmed the contents of the statement. She also testified that they would never supply any documents without a subpoena.

[48] Johanna Gertruida Louisa Els, employed by Absa Bank, Harrismith testified that during 2003 she was asked for certain bank statements regarding the Mphuti (accused 5) file, which bank statements were supplied by her.

[49] Col Jacobus Petrus Paulus Erasmus testified that after 32 years’ experience he left the police during 2009. Since 1995 he was the provincial commanding officer of the anti-corruption unit. After he testified, he established a time line regarding the progress made in the present matter, which includes the following:

2002/12/06: Progress report to provincial commissioner; senior superintendent Erasmus reporting on thefts of property from provincial head detectives.

2003/06/20: Provincial commissioner Gaobepe briefed national commissioner Selebi and the decision was made to establish the task team.

2003/07/08: Task team was established. Faxed message dated 2003/07/03 from the provincial commissioner to national head office, area commissioners, provincial heads of detective service and crime intelligence, Free State. Instruction for the formation of the task team to report at the head of the detective service on 2003/07/08. The team consisted of the following:

·          National head office – 1 Senior Supt;

·          Provincial detective service – 3 Officers and 3 inspectors;

·          Provincial crime intelligence – 1 Inspector;

·          Area Southern Free State – 2 Officers and 2 Inspectors;

·          Area Northern Free State – 3 Officers and 1 Inspector and

·          Area Eastern Free State – 1 Officer and 2 Inspectors.

·          2003/08/15: Application to the Divisional Commissioner,

Detective Service, Head Office for their appointment of a charted accountant.

·          2004/04/22: Statement: JPP Erasmus: Section 205.

Instruction was received to assist the Lesotho Mounted Police.

·          2004/05/13: Statement: Section 205, Lioma Telkom

accounts.

·          2004/07/21: Fax message dated from the Provincial

Commissioner to Head Office.

The DPP informed the special task team on 2004/07/21 that the decision was taken to prosecute Mr TNT Lioma.

·          2004/11/30: Application for office equipment - dated

2004/11/26. In this application it was mentioned that the accommodation agreement with the Department of Education ends on 2004/11/30.

·          2005/02/07: Acknowledgment of furniture received at the

offices of Crime Stop.

·          2005/04/01: Letter to the Provincial Commissioner,

indicating that senior Supt Erasmus will take up his post at provincial evaluation services in the middle of 2005.

·          2005/08/29 Application for parking facilities.

·          2005/10/07 Internal memorandum to the Provincial

Commissioner from Provincial Evaluation Services reporting on station visits by Snr Supt Erasmus.

[50] The witness testified that when he joined the task team, all the tender documents were already obtained. The witness was sent to co-ordinate the investigation. As far as Col Senatla was concerned, he experienced disciplinary problems with him. Whenever the witness inquired about the whereabouts of Senatla he always alleged that he was with the provincial commissioner. He testified that he and Senatla were not on good terms and that Senatla did not like the witness.

As far as the missing documents were concerned, he mentioned the fact that it was a very voluminous investigation. At one stage they were told to vacate offices on short notice and later they had to move again. According to the witness it was quite possible that during the move some of the documents got lost. Referring to the magnitude of the investigation he testified that thousands of pages of statements contained in several boxes were obtained. He also testified that there was no possibility that the banks would provide bank statements without a subpoena.

Regarding the alleged monitoring of phone calls he testified that he neither had the equipment nor the know - how to do it. At one stage he was involved in the investigation of a person from Lesotho, as mentioned above, where he was asked to assist with the evaluation of certain information which had nothing to do with the present matter.

During further cross-examination as well as re-examination it transpired that in the Tsopo case, where the husband of a MEC was convicted of theft, Col Senatla took a statement from someone who was under the influence of liquor. Apparently Senatla called Col Erasmus a liar.

[51] Captain Van der Merwe was recalled and testified about the investigation of Matsapela Distributors. According to him the signature of the drawer on the cheques dated 3 April 2002 (R4 802,04) and 28 January 2003 (R5 504,53) appeared to be the same signature as the signature of Teatsane on his warning statement (exhibit D).

[52] Melanie Smith testified that during 2003 she was the manager of Geen and Richards in Bethlehem. Two cheques were submitted to the business on the 3rd of June 2002 by Matsepela Distributors CC for the amounts of R950 and R1400 respectively. The cheque for the amount of R950 was a cash cheque for goods purchased in Bethlehem whilst the R1400 was deposited as payment on the account of Teatsane at the Parys branch of Geen and Richards. Mr Nel put it to the witness that this amount represented items bought by accused 11 for his father during October 2001.

[53] Ms Pinky Kekana, presently a credit assessor for Motor Financing Corporation, a subsidiary of Nedbank, testified that during 2003 she was employed by FNB. Part of her duties included the supply of documents after receiving a section 205 subpoena.

[54] Regarding the evidence of Warrant Officer Calitz about problems experienced by the police, she testified that they requested too much information and that they (the bank) could not provide all the information in time. She also testified that she was aware of the warrant which was issued against Mr Kruger for non - compliance.

The witness was adamant that they only supplied information after receiving a section 205 subpoena and that she always made a section 236 affidavit when she supplied documents whilst working at FNB. The witness referred to bank statements which were requested in respect of Matsapela Distributors as well as documents to be entered in the Teatsane file.

During cross examination by Mr Nel the witness had no answer to the question as to why a certain section 236 statement was not commissioned. It was put to the witness that regarding a certain section 205 subpoena there was no section 236 statement in the police file. The witness also testified about instances where there were non – compliance by the bank and where section 205 subpoenas were reissued. It also appeared from her evidence that she was the only person at FNB dealing with the subpoenas.

[55] Magdalena Elizabeth Van Schalkwyk testified that she used to work for Absa Bank in an administrative capacity. According to her she would never supply any documents without the necessary section 205 subpoenas. She referred to account number 4050801321, being the cheque account of TNT Lioma. She also received a section 205 subpoena in respect of account number 4056996928 of GM Lesetla for the period 28 February 2003 to 28 February 2004.

[56] Warrant Officer Terblanche was recalled to hand in two statements which he took from Jan Johannes Komail. According to the witness Komail was warned in terms of section 204 and that he was prepared to testify for the State. He was no longer available as a witness due to the fact that he died in the meantime. The witness had a conversation with Komail during October 2003 whereafter he took down two hand written statements from him that he later typed and which was signed by Komail. Mr Komail read the statements before he signed it in the presence of the witness and the statements were also commissioned by Warrant Officer Terblanche.

[57] He was asked about the correctness of the statement to which the witness testified that Mr Komail was satisfied with the contents and therefore proceeded to sign it.

When asked why Mr Komail made two statements, the witness testified that after the first statement was taken the police received more information with which Komail was confronted, whereafter he made the second statement.

In reply to questions in this regard the witness testified that he did not compare the contents of the affidavits with other available evidence, in other words he did not check whether it was substantiated by other evidence.

As far as backup-data was concerned, Warrant officer Calitz testified that his computer crashed but that he transported some of his information to Terblanche’s computer. He retrieved a document from Terblanche’s computer regarding account number 62004407111 for the period 28 February 2002 until 31 May 2004. Regarding a section 205 subpoena in terms of which information pertaining to eight account numbers were required from FNB, the witness testified that this was not normal practice. This was usually done where they had already received some information but they needed more. It was not uncommon to request additional information.

[58] Jaco Spies is a member of the South African Institute of Chartered Accountants. He was a partner at Deloitte until September 2005 and at present he has his own business. He prepared a report with Deloitte as an independent consultant. He has conducted numerous forensic accounting assignments during the last 19 years. His academic and professional qualifications include a B Compt (Hons), a Certificate in the Theory of Accounting, a LLB, a Diploma in Advanced Banking and he is a Chartered Accountant.

[58] As far as background is concerned he was provided with the following:

a.         The Department of Education, Free State invited tenders for the distribution of Learning Support Material and Textbooks to schools in the Free State;

b.   Thirty - seven (37) tenderers were awarded this tender. The tender contract was signed on the 10th of October 2001 and was valid for 3 years. Mr TNT Lioma (accused 1) was the acting Head of the Department of Education, Free State and Mr SP Motaung (accused 4) was the person who evaluated the tender and who made the eventual recommendations to the tender committee.

c.   The investigation proved that the tender process was manipulated and that tenders were awarded to persons that were not eligible for these tenders.

d. Information was also received that officials of the Department of Education were involved with the tender process and were paid by the successful tenderers.

e. Investigation was done into the accounts of tenderers and into the accounts of these officials. It was ascertained that money was paid into the bank accounts of some of these officials.

f. Charges of corruption and fraud are being investigated and a case docket was prepared and submitted to the DPP who decided to prosecute both Messrs TNT Lioma and SP Motaung. Both were arrested on 29 July 2004. They appeared in court and the case was postponed until 16 September 2004. The prosecutor requested that a forensic auditor be appointed. Mr Spies was required to do the following: Analyse the bank accounts for the period 1 March 2001 until 30 April 2004 of several entities and individuals including that of accused 1, accused 4, Taeto Agency, TC Taetsane (accused 11), Moeng Enterprises, MA Moeng, Mabolela Distributors, MJ Lekitlane, Kopanang Woman Enterprises (involving accused 8, 9 and 10), MD Mphuthi (accused 5), MD Services and several others.

[59] As far as accused 1 is concerned, he analysed 9 of his bank accounts for the period 1 March 2001 – 30 April 2004. He identified and linked other supporting documents to the transactions listed in the bank statements. According to Spies accused 1 received R19600 from recommended and approved tenderers regarding the following tenders: Tender 81 (accused 5) for R2000; Tender 63 (accused 2) for R8 600; Tender 339 (accused 10) for R7000; and Tender 342 (Thakaneng Procurement Services – owner Lekitlane) for R2000.

[60] Monies received from other individuals amounted to R81 160,97 as well as cash deposits in the amount of R54 600.

His income from the Department totalled R682 877,18 whilst his expenses totalled R883 023,63, giving a short fall of R200 146,45. An amount totalling R204 702,65 other than the amount received from the FS Provincial Government was deposited into his cheque account.

Accused 10 was involved in respect of 4 payments, respectively R1 800, R1000, R3 500 and R3 650 and accused 8 in respect of one payment in the amount of R2000.

There was a transfer of R21 876,69 from his bank account to his credit card on 4 June 2002.

Monies received from unknown sources amounted to R22 000.

There is an amount of R20 000, being a consolidation entry on 17 January 2003 made available by ABSA for a period of 24 months, being an overdraft granted to accused 1.

Accused 1 completed an African Bank loan application with an advance of R6000 on 10 January 2003 repayable at R670,47 per month. Unknown deposits in respect of the cheque account amounted to R51 419,71.

[61] Mr Spies also referred to several cash deposits made into the account of accused 1. On 5 July 2002 there was a cash deposit of R5000 in notes and on 4 August 2002, R2000 was deposited in notes at Phuthaditjhaba;

Accused 2 made payments to accused 1 in the amount of R8 600 whilst accused 10 made payments to accused 1 in the amount of R7000, consisting of R3000 on 27 December 2001, R2000 on 4 January 2002 and R2000 on 20 June 2002. These payments are linked to the Kopanong tender (number 339). There is also a transfer from Thakaneng Procurement Services to accused 1 on 9 March 2001. The total of cash deposits into accused 1’s bank account amounted to R32 500.

Mr Spies referred to a deposit from Sovereign Motors in the amount of R80 000 on 4 March 2004 which, according to accused 1, was for the sale of his BMW motor vehicle. Mr Spies testified that he did not rely on the evidence of Mr Terblanche, or any other officer for that matter, and that he independently evaluated the tender documents.

According to the evidence of Mr Spies, accused 1 was living beyond his means.

[62] As far as accused 4 is concerned, receipts during the period 1 March 2001 until 30 April 2004 revealed payments to him from individuals associated with the following approved tenderers: Lekitlane R1000; Moloi (tender 70) R500; TC Taetsane (accused 11) R820 on 18 April 2001 and R2700 on 31 May 2001. In total therefore:

Lekitlane R1000

Moloi (tender 70) R500

TC Taetsane (accused 11) R820 (18 April 2001)

R2700 (31 May 2001)

Total R5020

An amount of at least R48 484,64, other than that received from the FS Provincial Government was credited to this account during the said period.

[63] As far as Kopanang Woman Enterprises (owned by accused 9) is concerned, it received an amount of R449 841,36 from the FS Provincial Government. Accused 9 is the mother of accused 8 and 10.

The following cash deposits were made into accused 10’s bank account with number 401020835:

By accused 1: R2000

By accused 9: R2000

By accused 8: R5500

In respect of the ABSA account number 4055348972 of accused 10 there was a cash deposit by accused 1 for R5 700 and a transfer request by accused 1 for R1000.

In respect of the ABSA cheque account with number 2840190113 of accused 10 there were cash deposits by accused 1 in the amount of R5 250 and R3500 respectively.

Regarding the savings account of accused 10 with number 1 9085180735, there were cash deposits by accused 1 in the amount of R16 150; a transfer from accused 1’s cheque account in the amount of R3650, a cash deposit by accused 9 for R7 500 and an amount of R5000 was received from Thakaneng Procurement Services (tender 347).

As far as the Kopanang cheque account with number 62029294973 at FNB is concerned, the signature card reflects accused 10 as “chairperson” and accused 9 as “secretary” of Kopanang Woman Enterprises.

The bank account of Kopanang reveals that cheques cashed by accused 9 amounted to R82 810 and by accused 10 to R107 998. Payments were made to accused 9 in the amount of R83 000 and to accused 10 in the amount of R107 998.

[64] As far as accused 13 is concerned, she is the 100% owner of Matwabeng Distributors. Accused 13 as the principal of Mabewana Junior Primary School received an amount of R509 525,27 from the Free State Provincial Government.

[65] Mabolela Distributors received an amount of R219 226,19 from the Free State Provincial Government. According to the documents accused 3 was the sole owner or proprietor. The approved signatories were accused 2 and 3. Regarding the Moeng Enterprises tender the documents reveal that Mr Moeng received R524 588,66 and there is also an indication of a withdrawal of R98 500.

[66] As far as Taeto Agency is concerned, accused 11 is the only member thereof and he has been employed as principal of Moteka High School since 1 July 1999. Regarding Matsapela Distributors, accused 12 is the owner and only signatory thereof and an amount of R139 700 was paid to accused 11 from its bank account with number 62030319744.

It also appears that an amount of R110 551,19 was paid into the bank account of Taeto Agency by the Free State Provincial Government.

[67] It appears from the evidence of Mr Spies that the tender application of Kopanang Woman Enterprises (tender 339) was defective (incomplete documentation and one of the partners being employed by the Department). The chairperson of Kopanang Women Enterprises was accused 10 and the secretory thereof accused 9. The partners were accused 8 and AS Moholo. Mr Spies also referred to payments made to officials, namely accused 1 by Mphuti, accused 2, accused 10 and Thakaneng; as well as accused 4 by Lekitlane, Moloi (tender 70) and TC Taetsane (tender 53)

[68] Mr Spies summarised his findings in his final report by stating that “the overall process followed appears to be fraught with inconsistencies and allegations of undue preference and therefore not fair, equitable, transparent, competitive and cost - effective”.

[69] The court decided in the interest of justice to call Col Sephako Simeon Moteka to testify about the alleged interception of accused number 1’s telephone calls. The witness testified that he received a file containing a statement by accused 1. The file was no longer available. At one stage he and an expert of Telkom went to the Omni building where they investigated a certain office. The people who previously occupied the office were Col Erasmus, Col Senatla, Warrant Officer Terblanche and others.

[70] He testified that the docket was registered during 2007 after he was approached by accused 1 in January 2007. He was not aware of the fact that the above - mentioned people who occupied the Omni building vacated it two years earlier, during December 2004. The witness did not know how many people had access to that office during these two years. He was asked about any equipment found in the office to which he replied that he did not see anything. The person from Telkom apparently found something but the witness was not aware of anything. He was also asked whether he brought technical experts from the department to investigate the matter to which he replied in the negative. The witness testified that what was shown to him in the office was meaningless to him, he saw nothing. Thereafter the State’s case was closed.

[71] After the closure of the State’s case Mr Potgieter on behalf of accused number 1, 6, and 7, Mr Langenhoven on behalf of accused number 2, 3, 4, 5, and 13, and Mr Litheko on behalf of accused number 8, 9, and 10 applied for the discharge of the accused. After hearing argument, the following order was made:

1.   On counts 21 and 23 accused 6 and 7 were found not guilty and discharged.

2.   On count 22 accused 1 was found not guilty and discharged.

3.   As far as the other counts are concerned the applications of the accused in terms of section 174 of the CPA were dismissed.

[72] Mr Potgieter called accused 1, Tebogo Nhlanhla Tlaole Lioma, to testify. He is a 60 year old pensioner and at one stage during 2001 he was employed by the Department of Education as the acting head of the Department. He explained in detail the structure of the Department as well as the tender process including the duties and responsibilities of the employees as well as the role played by him. He referred to the fact that as far as the structure is concerned it was divided into five districts involving 23 000 employees. In his capacity as acting HOD, the witness was accountable to the MEC. He referred to several meetings of the tender committee, including the one of 20 September 2001, where he acted as the chairperson who facilitated the discussion. On 24 September 2001 thirty seven tenders were proposed whereafter a meeting was arranged with the successful tenderers to inform them what was expected from them. After perusing the documents he attached his signature as well as the date to the particular successful tender.

He also dealt with several payments made to him including one by accused 5 where, according to him, accused 2 requested accused 5 to give money to him for his daughter who stayed with accused 1. He explained that, that was the reason why accused 2 made payments to accused 1 in the amount of R6 600.

As far as accused 10 is concerned he testified that she used to borrow money from him whereafter she repaid the money. At that stage she was working at the SABC.

[73] Mr Lioma testified that he experienced trouble with the tampering of his telephone at one stage. After he became aware of this he was very upset and reported the matter at the Bayswater Police Station during 2007.

[74] He was also asked about telephone conversations between him and some of the other accused. The communication between him and accused 5 was due to the fact that accused 5 was known to him, being a member of the previous Tender Board. As far as communication between him and Mr Moeng was concerned there were 6 calls and at one stage Mr Moeng was furious so he called him back. The communication between him and accused 4 is due to the fact that accused 4 was employed by the Department of Education. The same applies with regard to accused 8 who worked at the Department of Education as a Senior Education Specialist.

There was also communication between him and accused 10 who worked at the SABC, namely 8 calls.

[75] In cross examination by Mr Swanepoel on behalf of the State he was confronted with the evidence of Aria Moholo that the memorandum of Agreement and tender documents were signed on the same day, even before the tender was awarded in July, to which he replied that this was impossible.

He was asked about the communication between him and Mr Lekitlane, a former accused 6 where it appears that numerous calls were made before, during and after a tender was allocated to Mr Lekitlane. The calls to Mr Mphuti, accused 5, were due to the fact that he knows him well because he was a previous member of the provincial tender board. The 424 calls between accused 1 and 2 is attributed to the fact that accused 2’s daughter stayed with him at that stage. The calls to Mr Majola, accused 6, were due to the fact that he knows him well. He was asked whether it was proper to make calls to prospective tenderers, to which he replied that there was nothing wrong with that. In this regard it also appears that that were 8 calls from accused 1 to accused 10. It appears to be very peculiar for accused 1, with his status and seniority and who was in charge of 23 000 employees, to be in regular telephonic contact with tenderers whose applications were successful. It also appeared that Mr Komail, one of the employees of the Department of Education, was the person who was tasked with the responsibility to deal with enquiries pertaining to tenders.

Mr Motaung, accused 4 is well known to him and he attended various courses regarding tender procedure. Accused 4 was one of the members of the team who evaluated the tenders.

[76] He spoke regularly to accused 6 on the phone. As far as the Moeng tender is concerned, Mrs Moeng was a teacher. Initially he testified that it was not necessary for Mr Moeng to declare this aspect but later on he conceded that he should have declared it. Accused 7, a brother of accused 6, was a principal of a school and in an application for a tender he was supposed to declare that aspect.

As far as his role is concerned accused 1 testified that he was not just a rubberstamp, he actively partook in the process. He conceded that he was part of the process and that he perused the documents of the 37 tenderers.

Regarding the telephone tapping, he later testified that he received a report in this regard during 2004-5. However, the matter was only investigated during 2007.

[77] As far as the position of a teacher is concerned there are certain procedures to be followed and if a person is employed by the department he or she has to declare that aspect.

Regarding the flow of funds he testified that he did not receive any money in return for the awarding of tenders. With regard to accused 10 it involved money which she borrowed from him. It was put to the accused that on 27 December 2001 NS Letsetla, accused 10, made a payment to him. When he was asked whether it was money from the tender he replied that he did not know. It was put to theaccused that shortly after the first tender payment was made to accused 10, she made a payment to him; he agreed that he received the money.

[78] As far as the structure at the Department is concerned he testified that he inherited a system with an established procedure which he was unable to amend or improve.

[79] He was again asked about telephone communication between him and the other tenderers and whether it was proper for the HOD to have successful tenderers on his cell phone contact list, to which he replied that he does not see any problem with that.

[80] As far as the perusal of the documents is concerned, he testified that he compared the name of the company with the name which appeared on the approved list. As to a question whether he recognised some of the names, he replied that he only checked the entities.

[81] As far as the monies he received are concerned, he was asked about other sources of income apart from what he received from the Department of Education, to which he replied that he had no such other sources. He was asked about several deposits made into his bank account and he replied that he had a very supportive family. It was put to him that his income amounted to R682 877,18 during the period 1 March 2001 until 30 April 2004 and that he was living beyond his means, the difference being more than R200 000. He replied that his income was supplemented by an overdraft revolving credit and a BMW which was sold for R90 000.

[82] Moholoya Isaac Soee, accused 2, testified in his own defence. He referred to an application for a declaratory order regarding Mabolela Enterprises to the effect that he is the owner of the said business. Due to a pending criminal case he did not pursue the civil matter. He also referred to a tender application of Mabolela Enterprises that was completed by his younger brother, Mpompo, which application was not successful.

The witness confirmed that he recognised a document that was placed before him with the number 63 on it and that it referred to tender E7/2001/002/2004. As far as this tender is concerned, he testified that the application form was completed by his then employee, Puleng, and that Lefa Molefe acted as his representative. This tender was awarded to Mabolela Construction. As far as Mr Molefe is concerned, he was an employee of accused 2 who acted as his driver. He trusted him and due to the fact that accused 2 was going through a divorce at that stage he made use of Mr Molefe to apply for the said tender in Mr Molefe’s name.

[83] As far as accused 1 is concerned, he met him during 1995/96 whereafter they became friends. The payments made to accused 1 was on behalf of accused 2’s daughter who stayed with accused 1 at that stage. In this regard he referred to the payment of R6 600. He also testified about the fact that accused 1 went to Italy at one stage and that accused 2 paid for his own child as well as one of accused 1’s children to make the visit to Italy possible. As far as accused 5 is concerned an amount of R2000 was paid by him on behalf of accused 2 to accused 1 for the above - mentioned child’s needs. The reason was that accused 5 was in Bloemfontein and according to accused 2 it was easy for him to effect this payment.

[84] Regarding accused 1 he testified in cross examination that he visited him about four times per month. They discussed business in general but not the Mabolela business. The discussion about business was in general but could possibly have included the aspect of tenders. Regarding the Mabolela tender he received an amount of R219 000, which amount he did not share with anybody. As far as accused 3 is concerned, she opened a bank account in the name of Mabolela at the request of accused 2, although she did not share in the profits of the said tender.

He also testified that he and accused 11 grew up as children.

That concluded the case for accused 2.

[85] Mr Sekese Paulus Motaung, accused 4, testified that he was employed by the Department of Education. He admitted the evidence of Mr Jaco Spies, the forensic auditor, that he received an amount of R3520 from accused 11. Two deposits were made respectively on the 18th of April 2001 (R820) and the 31st of May 2001 (R2700). The said tender, namely tender 63, closed on 8 June 2001 therefore the payments were made before this date. As far as his job description is concerned, he admitted that he wrote down the names of the tenderers and that it also was part of his job description to open the tenders.

As far as Taetsane is concerned (Taeto Agencies), he was involved in the opening and the numbering of it, whereafter he passed it on to his senior.

Regarding Mr Moeng, he was unaware of the fact that his wife was a teacher and the witness is of the opinion that it was not necessary that Mr Moeng should have declared this. According to the witness, accused 13, who was a principal of a school, did not have to disclose this because he heard in court that she did not apply for a tender. As far as the evidence of Mr Spies is concerned regarding the payment of R500, he testified that it represented the money that he paid back to the said person he borrowed it from. The same applied to the amount of R1000. It was put to accused 4 that he received cash from three people who were successful tenderers, namely Lekitlane (R1000), Moloi (R500) and accused 11 (R3520). When he was asked whether it was proper to receive money from tenderers he replied that he did not know.

That concluded the case for accused 4.

[86] Accused 5, Motseke David Mphuti, testified that he was the owner of a funeral undertaking at Reitz. Accused 2 requested him to pay an amount to accused 1 which would be refunded by accused 2. He made the payment after the bank details were supplied to him.

Regarding the payments made to him by various tenderers, he testified that his tender which was successful, was above board and that there was nothing wrong with it. He admitted that he received money from several tenderers but stated that this was paid in respect of services rendered, being the transportation by him of goods on their behalf.

That concluded the case of accused 5.

[87] Accused 6 testified that he was the chairperson of the Free State Tender Board during the period 1989/2000. It was not a full time position because he was only called when matters needed his attention.

He met Mr Moeng, the state witness, whilst he was doing work for SA Breweries. He went into his house when he was invited to attend a traditional ceremony. As far as Moeng’s application for a tender is concerned, he testified that Moeng experienced financial distress and that he was able to assist him. Accused 6 advised him to enter the area of public procurement and advised him to subscribe to a 2001 Tender Bulletin.

[88] Mr Moeng approached accused 6 in respect of a tender for books and asked for his assistance. Accused 6 spoke to a certain Mr Matejane and asked him to assist Mr Moeng. He brought them together but accused 6 denies that he himself completed the application.

After Mr Moeng received the first payment they had another meeting where they agreed that each of the partners would receive R25 000 and the balance to remain in the account to pay certain expenses.

At some stage Mr Moeng experienced a change of heart and he did not attend a meeting which was arranged. Accused 6 testified that they received no further payments except the repayment of a loan debt and a cheque for R5 000 in respect of services rendered.

He also referred to the summons issued against Moeng and testified that the allegation contained in the summons that the partnership existed prior to the lodging of the tender application was a mistake.

[89] In cross examination he was asked whether he was aware of the fact that Mr Moeng’s wife was employed by the Department of Education and he replied that after the tender was awarded he became aware of the fact that she was a teacher at Botshabelo. He initially thought that she was running a business in Botshabelo. He was confronted by Mr Swanepoel with the evidence of Mr Moeng to the effect that accused 6 knew his wife was a teacher, which evidence was never disputed in cross examination.

Regarding the mistake in the summons, he testified that he realised or noticed the error before the 3rd date for the hearing of the matter was allocated.

When asked how the mistake occurred, he testified that he later realised that the summons was not reflecting the true position. He was cross-examined in detail about the contents of the summons which, according to accused 6, was incorrect in several respects, for example it referred to the “parties duly submitted a tender”.

It is important to note that in the situation at hand there is no room for a misunderstanding between attorney and client because accused 6 was the author of these pleadings.

That concluded the case for accused 6 and Mr Potgieter also closed the case for accused 7.

Phato Getrude Ramaema, accused 8, testified that she was not a member of Kopanang Women Enterprises because it is her mother’s company, accused 9. She testified that she is in the employ of the Department of Education as a senior education specialist. At one stage a certain Mr Lekitlane called her regarding a problem accused 9 experienced with a tender, because he assisted accused 9 to complete a tender She testified that apparently her mother made copies of all her children’s ID’s which were given to Lekitlane. Lekitlane reported to her that he was called by the police and he asked for forgiveness. She testified that she did not know whether her Kopanang tender was successful but she did not receive any benefit whatsoever. That was the case for accused 8.

[90] Malehana Lesetla, accused 9, testified that she was born during 1940, she attended school until standard six and her proficiency in English was not very good. The business known as Kopanang Women Enterprise belongs to her. She started operating during 1999 and she supplied transport for teachers to Jagersfontein and she also transported school books. Her previous tender application was completed by her grandson.

As far as tender E7/2001/2002 - 2004 is concerned, regarding the delivery of learner support material, she went to the Department where she met a gentleman who assisted her because her children were not available to assist her. The gentleman, Mr Lekitlane, volunteered to assist her and he requested particulars from her including the names of her children because if problems arose he would be able to contact some of them. At his request she gave the ID numbers of the children to him.

[91] Mr Lekitlane also made 2 labourers available to assist her and she called her other daughter, accused 10, to assist her to open a business account.

As far as the contents of the application is concerned, she did not know what information was supplied in the document. She testified that at no stage did she have a partner in Kopanang Women Enterprises. She also did not share any of the income received with Mr Lekitlane.

After the conclusion of accused 9’s evidence the cases for accused 9 and 10 were closed.

[92] Dr Rakometsi, employed as CEO at Amulusi, was called by Mr Potgieter. He testified that he was approached by Superintendent Senatla and other policemen to depose to an affidavit. He testified that Senatla asked him whether he was not interested to be promoted to the head of the Department of Education. He replied in the positive but indicated that he did not want to be part of any underhand method. He was very critical of the conduct of Senatla. He was belittled and offended by the behaviour of Senatla and also the approach of the prosecutor in this matter. It was his opinion that Senatla could not be relied on.

That concluded the evidence for the defence.

AS FAR AS THE LAW IS CONCERNED, IT IS APPROPRIATE TO

DEAL WITH SOME ASPECTS AT THIS STAGE.

DID ACCUSED 1 HAVE A FAIR TRIAL?

[93] Mr Potgieter, counsel for accused 1, submitted that the fairness of the trial extends to a fair investigation process, that it was established that accused 1’s telephone was monitored and that the investigation was not fair. Consequently accused 1 could not have a fair trial. In this regard counsel inter alia relied on Col Senatla’s allegation during cross examination by Mr Potgieter that he was aware of certain calls which were intercepted during 2003/2004 as informed by Col Erasmus. In his evidence accused 1 testified that he experienced tempering with his telephone calls which he reported to the Bayswater Police Station during 2007. In this regard accused 1 relied on a report that was made to him.

[94] However, it appears from the evidence that the docket was registered during 2007, whilst the police had already left the building during December 2004.

[95] Mr Potgieter also called Dr Rakometsi who was very critical of Senatla and testified that he was offended by the behaviour of Senatla. He testified that Senatla wanted him to sign an affidavit whilst he was not satisfied with the contents thereof.

[96] The allegations by Senatla is denied by Col Erasmus and Warrant Officer Terblanche, both of whom made a favourable impression in the witness box. As far as Senatla’s evidence is concerned, he appeared hostile towards Col Erasmus and the prosecutor. After his evidence in chief, the prosecutor applied to have Senatla declared as a hostile witness in terms of section 190 (2) of the Criminal Procedure Act, which was refused. However both Mr Rakometsi and Col Erasmus were critical of the conduct of Col Senatla. This court is also not impressed by the behaviour of Col Senatla who was clearly a biased witness. His evidence in this regard cannot be accepted as the truth.

[97] As far as the influence of Senatla regarding the present matter is concerned it appears that he played a minor role in the investigation of the case. Apart from taking warning statements from accused 4 and 13, he didn’t take any other statements.

[98] Mr Potgieter submitted that affidavits taken by Senatla as well as the unsigned affidavit of Rakometsi which found its way to Mr Spies, the auditor, could have influenced his findings. It is important to note that Mr Spies was not cross-examined in this regard. Spies also testified that he made an independent evaluation of all the documents that were made available to him.

[99] Section 35 (5) of the Constitution provides:

“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.”

[100] In this regard Tshiqi JA stated the following in State v Singh & Others 2016 (2) SACR 443 (SCA) at para [16]:

Evidence must be excluded only if it (a) renders the trial unfair; or (b) is otherwise detrimental to the administration of justice. The enquiry as to whether the admission of evidence would be detrimental to the administration of justice centres on public interest. Since the enquiry is purely a legal question, the question of the incidence and quantum of proof required to discharge the onus of proof does not arise. It essentially involves a value judgment.”

[101] In Key v Attorney General Cape Provincial Division and Another 1996 (2) SACR 113 (CC), Kriegler J stated the following at para [13]:

What the Constitution demands is that the accused be given a fair trial. Ultimately, as was held in Ferreira v Levin, fairness is an issue which has to be decided upon the facts of each case, and the trial Judge is the person best placed to take that decision. At times fairness might require that evidence unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted.”

See also State v Miller 2016 (1) SACR 251 (WCC) at page 271 and Mthembu v The State 2008 (3) ALL SA 159 (SCA) at para [26].

[102] Having regard to all the facts and circumstances the court is of the view that it cannot be said that either the investigation process or the trial was unfair in the circumstances. Mr Potgieter’s objection in this regard cannot be sustained.

EVIDENTIAL VALUE OF KOMAIL’S AFFIDAVITS.

[103] During the trail the court dealt with the affidavits of Komail and after hearing argument the court made a ruling that the affidavits are provisionally admissible as evidence. (Volume 29 page 1599 – 1603). The legal position in this regard is summed up in “Organised Crime and Proceeds of Crime Law in South Africa” (Second Edition) by Albert Kruger as follows on page 37:

“Even if a court finds the hearsay evidence admissible, the weight attached to such evidence will be determined in a judgment at the end of the trial.”

[104] On page 38 the following is stated:

“A court should, generally speaking, allow the hearsay evidence and then assess the weight to be attached to such evidence when considering the case in totality…”

[105] After considering the case in its totality, this court is of the view that no weight should be attached to the said statements. In other words the said statements should be ignored for all practical purposes.

S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC) at para [37] – [39]; [44].

DID THE STATE PROVE THE ASPECT OF RACKETEERING:

[106] The next legal aspect to be considered is whether the state proved the statutory offence of racketeering having regard to the fact that it relates to Count 1 (contravention of section 2(1)(f) read with sections 1, 2(2),(2)(3), 2(4) and (3) of the Prevention of Organised Crime Act 121 of 1998 (POCA), managing an enterprise conducted through a pattern of racketeering activities; Count 2 (contravention of section 2(1)(e) read with sections 1, 2(2), 2(3), 2(4) and 3 of POCA, conducting or participating in an enterprise through a pattern of racketeering activities and Count 3 (contravention of section 2(1)(g) read with sections 1, 2(2), 2(3), 2(4) and 3 of POCA, a conspiracy to violate the provisions of section 2(1)(e) - (f) of POCA).

It is necessary to have regard to some of the offences provided for in POCA:

“OFFENCES RELATING TO RACKETEERING ACTIVITIES (ss 2-3)

2. Offences.

(1) Any person who –

(a) (i) receives or retains any property derived, directly or indirectly, from a pattern of racketeering activity; and

[Sub-para (i) substituted by s. 4 (a) of Act No. 24 of 1999.] (wef 28 April 1999).]

(ii) knows or ought reasonably to have known that such property is so derived; and

[Sub-para. (ii) substituted by s. 4 (a) of Act No. 24 of 1999.] (wef 28 April 1999).]

(iii) uses or invests, directly or indirectly, any part of such property in acquisition of any interest in, or the establishment or operation or activities of, any enterprise;

(b) (i) receives or retains any property, directly or indirectly, on behalf of any enterprise; and

(ii) knows or ought reasonably to have known that such property derived or is derived from or through a pattern of racketeering activity;

[Sub-para. (ii) substituted by s. 4 (b) of Act No. 24 of 1999.] (wef 28 April 1999)]

(c) (i) uses or invests any property, directly or indirectly, on behalf of any enterprise or in acquisition of any interest in, or the establishment or operation or activities of any enterprise; and

(ii) knows or ought reasonably to have known that such property derived or is derived from or through a pattern of racketeering activity;

[Sub-para. (ii) substituted by s. 4 (c) of Act No. 24 of 1999.] (wef 28 April 1999)

(d) acquires or maintains, directly or indirectly, any interest in or control of any enterprise through a pattern of racketeering activity;

(e) whilst managing or employed by or associated with any enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise’s affairs through a pattern of racketeering activity;

(f) manages the operation or activities of an enterprise and who knows or ought reasonably to have known that any person, whilst employed by or associated with that enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise’s affairs through a pattern of racketeering activity; or

(g) conspires or attempts to violate any of the provisions of paragraphs (a), (b), (c), (d), (e) or ( f ), within the Republic or elsewhere, shall be guilty of an offence.”

[107] The onus is on the State to prove the existence of an “enterprise” and a “pattern of racketeering activity”. The sections vary with regards to each accused person’s relationship to the “enterprise” and the “pattern of racketeering activity”.

[108] “Enterprise” includes any individual, partnership, corporation, association, or other juristic person or legal entity, and any union or group of individuals associated in fact, although not a juristic person or legal entity.

[109] A “pattern of racketeering activity” means the planned, ongoing, and continuous or repeated participation or involvement in any offence referred to in Schedule 1 and includes at least two offences referred to in Schedule 1, of which one of the offences occurred after the commencement of this Act and the last offence occurred within 10 years (excluding any period of imprisonment) after the commission of such prior offence referred to in Schedule 1.

[110] For a violation of the racketeering provisions to be established, the law requires that there must be “pattern of racketeering activity”. In order to prove that a “pattern of racketeering activity” exists, the State must prove:

(1) that at least two offences listed in Schedule 1 were committed;

(2) the offences have a relationship to one another, or to the “enterprise” or to a goal of “enterprise”; and

(3) that the offences have continued for a period of time, or by the nature of the offence, the planning of it, or to the repetition of it, there is a sense of continuation.

[111] Counsel on behalf of the accused argued that there are two distinct requirements in the prosecution of racketeering, firstly proof of an existing enterprise with a proper structure and a command hierarchy and, secondly, that all members of the alleged enterprise shared a common purpose. In this regard it is important to note what was stated by Kruger J in Mokoena and Others ( Free State High Court decision, case number 69/2007, pages 571 – 594):

“[1523] The racketeering acts targeted in POCA embody a paradigm shift in criminal law. Because it is often difficult to find sufficient evidence to convict the main perpetrators, POCA in section 2 targets the event rather than individuals. The doctrine of common purpose and inferences from known facts take a secondary place in the investigation of racketeering offences. Racketeering is usually a crime committed by organised crime groups.

[1529] The fact that a number of offences (fraud and corruption and money laundering) are committed by individuals working at the same place, does not in itself make them to be part of an “enterprise” in the POCA sense. A contrary view would make all one time criminal offenders, racketeers.

[1535] With reference to the above citation, in the present case many of the alleged offences among the 260 odd charges are not related. They do not have the same results or victims. The methods of commission differ. They are isolated events, committed by various accused, not acting in concert with the other accused.”

S v Eyssen 2009(1) SACR 406 (SCA) par [6], [9] and [12];

De Vries v The State (130/11) [2012] ZASCA 162 (28 September 2011) at par [48].

[112] In the present case there is no evidence of an existing enterprise with a proper structure and a command hierarchy. Furthermore, many of the alleged offences are not related. It appears from the evidence that they are isolated events committed by various accused not necessarily acting in concert with each other.

Having regard to the evidence in this case the State failed to prove the necessary requirements to sustain a finding of an enterprise as well as a pattern of racketeering activity. It follows therefore that the State has not proved its case as far as Counts 1, 2 and 3 are concerned.

EVIDENCE AGAINST THE ACCUSED:

[113] ACCUSED 1

He is implicated by the following facts or circumstances:

(A) The following cash deposits into one of his nine bank accounts were made by the following tenderers:

1. Cash deposit by Mphuti, MD Services (tender 81), of R2000 on 2 July 2001.

In this regard it is important to note that the evaluation of the tenders was done between the 7th of July and September 2001. As explained hereinafter there is a connection between accused 5 and accused 13, his sister, who is the owner of Matwabeng Distributors.

2. By accused 2 (tender 63)

1/10/2001 R600

5/10/2001 R1000

5/07/2002 R5000

04/08/2002 R2000

Total = R8600

3. Accused 10 (tender 339)

27/12/2001 R3000

04/01/2002 R2000

20/06/2002 R2000

Total = R7000

4. Thakaneng Distributors (Mr Lekitlane, tender 342)

09/03/2001 R2000

[114] (B) Cell phone contact between accused 1 and the following other accused according to the evidence of WO Terblanche:

1. 666 Calls to accused 2 during the period 5 May 1999 till 1 January 2003.

2. Sixty one (61) calls to Mabolela Distributors (accused 2 and 3) between 5 March 2002 and 30 December 2002 (cell phone with number 083 451 4181).

3. The following calls to accused 5: 1 call to 058 713 0950 on 20 December 2001, forty seven calls to 082 630 5363 (during the period 26 June 2000 till 29 March 2003) and 7 calls to 051 451176 (5 December 1999 till 24 August 1999).

4. Six calls to Moeng (tender of Moeng Enterprise connected to accused 6 and 7).

5. Three (3) calls to accused four (18/8/01 - 17/10/2002).

6. Thirty one (31) calls to accused 8 (between 22 February 2002 and 31 December 2002).

7. Eight (8) calls to accused 10 (27 July 2002 till 31 August 2002).

8. A total of 1380 calls to accused 10 during the whole period. In this regard there appears to be a conflict between the interpretation of Terblanche and the evidence of Spies.

It is important to note that accused 1’s evidence was to the effect that he was not just a rubber stamp, he actively took part in the process.

[115] (C) Accused 1’s financial position

Spies testified that accused 1 received R682 877,01 from the Free State Government as a salary, whilst his expenses amounted to R883 723,63 leaving a shortfall of R200 000+.

Amounts totalling R204 702,65, other than amounts received from the FS Provincial Government, were deposited into his bank account during the period 1 March 2001 till 30 April 2004.

[116] Accused 1 in his evidence (and written calculation) stated that Absa made R20 000 available to him over a period of 24 months as moneys received. The evidence of Spies was clear that this was an overdraft of R20 000 for 24 months and did not represent a monthly payment of R20 000.

The conclusion of Mr Spies that accused 1 was living beyond his means is therefore justified in the circumstances.

The inference is therefore irresistible that to balance his books, he received moneys from tenderers as mentioned above, R81 160,97 from other individuals as well as cash deposits of R54 600 as mentioned by Spies.

[117] To sum up: It is important to note that

(a)     accused 1 had regular cell phone contact with successful tenderers;

(b)     accused 1 received payments from tenderers who were successful;

(c)      all these tender applications were defective in one or more aspects and were awarded despite the fact that there were unsuccessful tender applications which were not defective at all.

[118] ACCUSED 2:

It is important to note that the relationship between accused 1 and accused 2 was not just an ordinary relationship. The daughter of accused 2 stayed with accused 1 at some stage and there where hundreds of phone calls between them before and during the time that the tenders were evaluated as well as after the tenders were awarded. It cannot be said that they did not know each other very well.

As far as Mabolela Distributors is concerned, accused 2 told Lefa Molefe to apply for the tender. He also assisted Molefe to obtain a tax clearance certificate. According to Molefe, accused 2 promised him a car and a house which promises were not honoured. Molefe thereafter approached accused 5 to assist him because accused 5 and accused 2 were close to each other, however to no avail.

[119] In this regard, in the “DECLARATION OF INTEREST” it is stated as follows:

“Any legal person, including a person employed by the province, or a person who act on behalf of the province or persons having a kinship with a person employed by the province, including a blood relationship may make an offer or offers in terms of this tender invitation. In view of possible allegations of favouritism, should the resulting tender, or part thereof be awarded to a person employed by the province, or to a person who act on behalf of the province, or to persons connected with or related to them, is required that the tenderer or his authorised representative shall declare his position vis-à-vis the evaluating authority and/or take an oath declaring his interest, where

-     the tenderer is employed by the province or acts on behalf of the province; and/or

-     the legal person on whose behalf the tender document is signed, has a relationship with persons/a person who are/is involved with the evaluation of the tender(s), or where it is known that such a relationship exists between the person or persons for or on whose behalf the declarant acts and persons who are involved with the elevation of the tender.

In order to give effect to the above the following questionnaire shall be completed and submitted with the tender.

2. Are you or any person connected with the tenderer, employed by the province?

Yes/No

2.1 If so state particulars?

3. Do you, or any person connected with the tenderer, have any relationship (family, friend, others) with the person employed in the Department concerned or its administration and who may be involved with the evaluation or the adjudication of this tender?

Yes/No

3.1        

4.         Are you, or any person connected with the tenderer, aware of any relationship, (family, friend, others) between the tenderer and any person employed by the Department concerned, or its administration who may be involved with the evaluation or adjudication of this tender?

Yes/No

4.1         …”

The said document was completed on behalf of accused 2 and all of the above – mentioned questions were answered in the negative.

According to the documents Mabolela Distributors, via it’s FNB Savings Account, received R219 226,19 from the Free State Provincial Government. At one stage there was a dispute about the ownership of Mabolela Distributors between accused 2 and Molefe. Accused 2 thereafter applied for a declaratory order to confirm that he was the sole owner of Mabolela Distributors and it appears that the bank accounts of this business were managed by accused 2 and 3.

It is evident from the above that there was a duty on accused 2 to disclose his relationship with accused, 1 which he did not do.

[120] Accused 3:

As far as accused 3’s role is concerned, the following facts are relevant:

1.   Accused 3 represented Mabolela Distributors to enter into a contract with the Department of Education.

2.   She was the person to open a bank account at First National Bank for Mabolela Distributors.

3.   Accused 3 signed the contract entered into between Mabolela Distributors and the Department of Education.

4.   According to the account opening application, the declaration of Sole Proprietorship shows Virginia Moseia (accused 3) to be the sole proprietor of “Mabolela Distributors.”

5.   The signature card reflected both Virginia Moseia and Isaac Seoe as signatories with anyone to sign”.

As far as Virginia Moseia’s FNB cheque account is concerned the approved signatories are Virginia Moseia and Isaac Seoe. It also appears from the evidence that accused 2 and 3 were married although they later divorced.

[121] ACCUSED 4:

Accused 4 was employed as Senior Administrative Provisioning Officer at the Department of Education. He formed part of the Departmental Tender Committee and together with Komail they shortlisted the tender applications and submitted the recommendations to the Departmental Tender Committee as well as the Central Procurement Evaluation Committee.

It is important to note that accused 4 received the following monies from tenderers.

1.   An amount of R3520 (tender 53) from accused 11 in 2 payments, namely on 18/04/2001 (R820) and 31/05/2001 (R2700). It is accused 4’s version that he received this money to buy motor vehicle parts for accused 11.

2.   Mr Moloi (tender 70) R500. Accused number 4’s version is that this was pay back money which Moloi borrowed from him.

3.   Lekitlane (Thakaneng tender) R1000.

4.   According to the report of Mr Spies, accused 4 received R45 484,54 into his account over and above his normal salary, indicating an income other than his salary. The version of accused 4 that he bought spare parts for accused 11 cannot reasonably possibly be true, having regard to the fact that he received payments not only from accused 11, but from other tenderers as well.

[122] ACCUSED 5:

According to the evidence of accused 5 he made a deposit to accused 1 after accused 2 requested him to give the money to accused 1 as a contribution for the boarding and lodging of accused 2’s daughter.

There is also evidence that his employee, Jabulani Maseko, completed forms on behalf of accused 13 but he testified that he did not assist him in the completion of the tender.

Accused 5 testified that his tender was above board, there was nothing wrong with it and this was not seriously disputed by the prosecutor.

Although he received monies from other successful tenderers it is his case that he has transport facilities and that he made deliveries on behalf of other people, including some of the tenderers for which he was compensated.

It appears that there is a reasonable doubt regarding the criminal liability of accused 5 and the State has therefore not proved its case beyond a reasonable doubt; accused 5 is therefore entitled to his discharge.

[123] ACCUSED 6 & 7:

The state relies on the evidence of Moeng as well as circumstantial evidence. The evidence of Moeng should be treated with great caution. He was unsatisfactory in several respects, but there is a ring of truth about his evidence regarding events that took place between himself and accused 6 and 7, as well as the role of accused 6 and 7 regarding the Moeng tender.

I regard it as appropriate to deal with the question whether Moeng is entitled to be discharged from prosecution in terms of s 204(2) of the Criminal Procedure Act at this stage.

There is authority to the effect that indemnity can be given in spite of deviations from a witness’s police statements or other defects in his evidence. See S v Banda: In re Zikhali 1972 (4) SA 707 (NC) at 711; S v Bruiners 1998 (2) SACR 432 (SEC) at 437 h-i.

Having regard to the totality of the evidence, the Court regards it appropriate that Mr Moeng be discharged from prosecution and that it be entered on the record of proceedings.

As far as the role of accused 6 and 7 is concerned, the following facts and circumstances appear to be important:

1.   According to Moeng accused 6 was his friend. It was accused 6 who advised him to apply for a tender after he informed accused 6 about his poor financial position.

2.   Accused 6 told Moeng to come to him and encouraged Moeng to tender and also told him about the tender regarding school books which was to be advertised.

3.   Accused 6 volunteered to assist him in this regard.

4.   Moeng and accused 6 were involved in a previous tender (Ajetu Constructions) where they shared the proceeds.

5.   Accused 6 was involved in the completion of the tender application of Moeng. There is a serious contradiction between Moeng and accused 6 in this regard. According to Moeng accused 6 completed the tender while accused 6 testified that he asked a certain Tebogo Matejane (an employee of the Department of Education) to assist Moeng.

6.   After the tender was awarded to Moeng, accused 6 arranged with his brother, accused 7, to assist Moeng financially by initially lending him R3000 to start the business and eventually lending him R12 000 for this purpose.

7.   After Moeng received money from the Free State Provincial Government, accused 6 contacted him. It was the attitude of accused 6 that they must share the money equally and that they only wanted cash. Moeng and accused 7 went to the bank where Moeng withdrew R98 0000 whereafter each of them, accused 6, 7 and Matejane received R25 000 in cash.

It is of importance that on 22 March 2012 accused 6 issued summons on behalf of Ntsikelelo Nelson Majola (first plaintiff), Vuyisile James Majola (second plaintiff) and Tebogo Matejane (third plaintiff) against MA Moeng as the defendant.

In paragraph 3 of the summons the following is stated:

“During or about July 2001 and at Bloemfontein, the parties verbally concluded a verbal partnership agreement for the express purpose of procuring a tender of the Department of Education, Free State Province for the delivery and distribution of stationary and textbooks to various schools within the Free State Province for a period of 3 years (herein after referred to as “the tender”).”

What is important of this allegation is that accused 6 and 7 relied on the fact that the partnership agreement was already concluded before the tender application was lodged with the Free State Provincial Government.

It is also important to note what was stated in paragraph 4 of the summons:

“The material terms and conditions of the said agreement were that the parties shall:

4.1      Employ their knowledge, skill and resources to submit and secure the said tender with the Department of Education, under the auspices of and/or the name of Defendant trading under the name and style, Moeng Enterprise, for the mutual benefit of all four partners.

4.2 Use the Defendant’s business facility such as the business name, address, tax clearance certificate which were necessary for the purpose of the aforesaid tender.

4.3 In the event that the tender was successfully awarded, invest money, skill, knowledge, labour and other necessary resources to ensure successful execution of the said tender.

4.4 Apportion the nett profits generated from the execution of the tender on an equal basis and at times collectively determined by the parties.”

It appears from the evidence that the tender applications were considered during September 2001 and on 24 September 2001, 37 tenders were proposed. The alteration in par 7 is therefore of importance:

“Pursuant to the aforesaid agreement and commencing from September 2001 and at all material times hereto the parties have contributed to and/or invested in money, skill, knowledge, resources and/or labour towards the execution of the aforesaid tender.”

[124] The allegations in the summons correspond with their behaviour, namely the active involvement from the start, the completion and filing of the application as well as the fact that immediately after the money was paid out to Moeng, they expressed their wish to share in the money. The inference is therefore irresistible that accused 6 and 7 regarded themselves as partners in this venture. It was therefore incumbent upon them to disclose the facts that Moeng’s wife was a teacher and accused 7 a school principal, which facts were not disclosed in this tender application.

One must mention that accused 6 tried to dispute this fact by alleging that the summons was a mistake. Despite all his efforts to explain this ‘mistake’ he was not able to do so at all.

[125] ACCUSED 8, 9 AND 10:

Accused 8 testified that she is a Senior Education Specialist employed by the Department of Education. According to her Kopanang Women Enterprises belongs to her mother, accused 9.

She testified that Mr Lekitlane called her regarding a problem experienced by accused 9. She testified that she was unaware of the tender completed by Mr Lekitlane and that he used her name to perpetrate the fraud. Her version is similar to the version of Aria Moholo. There is no reason to doubt her version. The Court is of the view that she is innocently implicated in this matter and that the State has not proved any crimes against accused 8. She must therefore be found not guilty and discharged.

[126] Accused 9’s version is that she was totally unaware of the contents of the application. It is clear that she furnished the ID’s of her daughters to Mr Lekitlane. It is important to note that Kopanang Woman Enterprises received the following amounts from the Free State Provincial Government:

R449 841,35

R304 468,56

R26 545,00

TOTAL = R780 854,91

It appears from the documents presented as evidence that accused 9 was the founder of Kopanang Women Enterprise and that she is the mother of accused 8 and 10. According to the FNB Kopanang cheque account, she was the secretary of Kopanang and received an amount of R83 300,00 from the said cheque account. Having regard to the facts and circumstances of the case, her version that she was unaware of the contents of the application is so improbable that it can safely be rejected as false.

As far as accused 10 is concerned, she is the chairperson of Kopanang Woman Enterprise according to the FNB Kopanang cheque account and received an amount of R170 998,00 from the said cheque account. Also significant is the numerous calls (1380 calls) that accused 1 made to accused 10. See also the money which was exchanged between accused 1 and accused 10 - par [113] supra.

The evidence above is significant in view of the fact that accused 10 did not testify.

[127] ACCUSED 11 AND 12:

They are siblings. They did not testify.

Accused 11 is a school principal in the employ of the Department of Education. Accused 12 did not declare an interest, namely the fact that his brother, accused 11, is employed by the Department. It appears from the documents handed in as exhibits that the FNB account of Matsapela Distributors received R447 541,37 from the Free State Provincial Government. From this account an amount of R139 700,00 was paid to accused 11 and an amount of R13 500 to accused 12.

Apart from the fact that this tender was successful, it appears that there were other tenders which were more deserving than theirs. It also need to be noted that the questions posed in the Declaration of Interest of their tender application were left unanswered.

[128] ACCUSED 13:

She is the principal of Mabewana Junior School and the sole proprietor of Matwabeng Distributors.

According to the evidence of Jabulani Simon Maseko, accused 13 arrived at his workplace on the 5th of July 2001. Accused 13 asked him to attach his signature to the document titled “Matwabeng Distributors”. He testified that accused 13 completed pages 1, 7, 8, 13 to 15, 17 and 20 in his presence whereafter he delivered the document to the Department of Education. Later on he delivered schoolbooks at several schools. The fact that she is a principal, employed by the Department of Education, was not disclosed in her tender application.

It appears from the account of Matwabeng Distributors that it received an amount of R509 525,27 from the Free State Provincial Government and that accused 13 made two cash withdrawals of R50 000 and R40 000 respectively from the said account.

[129] THE STATE APPLIES FOR A CONVICTION IN RESPECT OF THE FOLLOWING COUNTS:

In view of discrepancies, mistakes, vagueness and possible duplication of charges, the Court requested the State to amplify its request for convictions with reference to specific counts. The Court will now deal with the said request:

Counts 1, 2 and 3:

As stated above, the evidence does not justify a conviction in this regard.

Counts 4 and 5:

These counts involved a contravention of the provisions of section 1(1)(a) and section 1(1)(b) read with sections 2 and 3 of the Corruption Act 94/1992, namely the giving of a benefit by accused 2 in the amount of R6400 and the receiving of the said benefit by accused 1. The version by the two accused in this regard is reasonable possibly true and consequently they are entitled to the benefit of the doubt and to be discharged as far as these counts are concerned.

Count 6: (Indictment p6, p24 – 9)

It is the State’s case that the accused with the intention to defraud, misrepresented to the Department of Education and/or possible tenderers to their prejudice or potential prejudice that Lefa Molefe was a manager and director of Mabolela Distributors and as such the de facto owner thereof whilst accused 2 was the real de facto owner; that accused 2 and 3 used Molefe to apply for the tender. Therefore accused 2 did not have to disclose his relationship with accused 1.

As far as fraud in general is concerned, Wessels CJ stated the following in Rex v Dyonta and Another 1935 AD 52 at 57:

“If the misrepresentation is one which in the ordinary cause is capable of deceiving a person, and thus enabling the accused to achieve his object, the fact that the person to whom the representation is made has knowledge or a special state of mind which effectually protects him from all danger of prejudice does not entitle the accused to say that the false representation was not calculated to prejudice.

The law looks at the matter from the point of view of the deceiver. If he intended to deceive, it is immaterial whether the person to be deceived is actually deceived or whether his prejudice is only potential.”

In Tshopo and Others v The State (review no A60/08, appeal judgment handed down on 17 June 2011 in the Free State High Court ) the following is stated by Moloi, J (Cilliè, J concurred):

“[8] The failure to reveal in tender applications the employment relationship with the state and the relationship with the MEC, the first appellant’s wife and the relationship between the first and second appellants is prejudicial to other tenderers and the community at large and frustrate the state’s efforts to eliminate the favouritism the declaration of interest seek to combat: the third appellant knew or should have known what his business was involved with. Failure to reveal the relationship with the state is prejudicial to other tenderers as well and renders the state incapable of administering public funds fairly and equitably.”

[130] On appeal the Supreme Court of Appeal in Tshopo v State (29/12/2012) ZASCA 193 (13 November 2012) stated in para [19]:

“The magistrate’s deductions are valid (and counsel conceded as much). It must also be remarked of the admission that it demonstrates active participation in the preparation of the tender application by the first appellant and justifies the inference that he had insight into the replies furnished by the second appellant in the declaration of interest.

[131] Heher, JA continued as follows:

“[23] The meaning that should be given to the use of the word ‘connection’ in the declaration is that which the ordinary reader would attach to it. Because the State relies on fraud the subjective understanding of the appellants must be decisive, but the appellants did not tell the court that they possessed an understanding that differs from that of the ordinary reader. In the context of the explanation in the preamble to the Declaration the ordinary reader would have interpreted ‘connected with the tenderer’ as including any person who stood to derive financial benefits from the performance of the contract by reason of his or her interest in the tenderer and / or one who directed its affairs. In both senses the second appellant must have known that the first appellant was ‘connected with’ Abelusi.”

It is important to note what is stated in paragraph [25]:

“[25] Since both appellants knew that the first appellant was financially and personally involved in the direction of Abelusi’s affairs and was an employee of the Province, they must necessarily have known that the tenderer was bound to disclose that connection. Not only did they not make such a disclosure but the second appellant (with the knowledge and concurrence of the first appellant) denied the connection. The inference drawn by the magistrate that the deception was carried out so as not to place the award in jeopardy was the only reasonable inference consistent with the proved facts, including the unchallenged reason for the status of a sleeping partner adopted by the first appellant during the initial activities of Abelusi. The misrepresentation relied on in the charge sheet (subpara (a) of para 4 of this judgment read with the answer to question 2 in the Declaration of Interest) was thus proved beyond a reasonable doubt, as was the intention to deceive the Department.”

Having regard to the facts of this case the Court is satisfied that accused 1, 2 and 3 are guilty as charged.

Counts 7 to 12:

The charge against accused 1, 2 and 3 is contravening section 4(a)(b)(i)(ii) read with sections 1, 7A and 8 of POCA.

In the alternative accused 1 is charged with contravening section 5 read with sections 1, 7A and 8 of POCA, assisting another to benefit from the proceeds of unlawful activities.

CHAPTER 3 of POCA provides as follows:

OFFENCES RELATING TO PROCEEDS OF UNLAWFUL ACTIVITIES (ss 4-8)

4 Money laundering

Any person who knows or ought reasonably to have known that property is or forms part of the proceeds of unlawful activities and-

(a)     enters into any agreement or engages in any arrangement or transaction with anyone in connection with that property, whether such agreement, arrangement or transaction is legally enforceable or not; or

(b)     performs any other act in connection with such property, whether it is performed independently or in concert with any other person, which has or is likely to have the effect-

(i)           of concealing or disguising the nature, source, location, disposition or movement of the said property or the ownership thereof or any interest which anyone may have in respect thereof; or

[Para. (i) substituted by s.6 (b) of Act 24 of 1999 (wef 28 April 1999).]

(ii)          of enabling or assisting any person who has committed or commits an offence, whether in the Republic or elsewhere-

(aa) to avoid prosecution; or

(bb) to remove or diminish any property acquired directly, or indirectly, as a result of the commission of an offence, shall be guilty of an offence.

5.   Assisting another to benefit from proceeds of unlawful activities-

Any person who knows or ought reasonably to have known that another person has obtained the proceeds of unlawful activities, and who enters into any agreement with anyone or engages in any arrangement or transaction whereby-

(a)        the retention or the control by or on behalf of the said other person of the proceeds of unlawful activities is facilitated; or

(b)        the said proceeds of unlawful activities are used to make funds available to the said other person or to acquire property on his or her behalf or to benefit him or her in any other way,

shall be guilty of an offence.

[s. 5 amended by s. 7 of Act 24 of 1999 (wef 28 April 1999).]

As far as money laundering is concerned, Mr Langenhoven submitted that there was an onus on the State to prove an element of concealment. In this regard he relied on the judgment of Nicholls, J stated in State v Van der Linde 2016 (3) ALL SA 898 at para [124]:

“What is apparent from the above cases is that in order to be found guilty of money laundering, there must be a clear intention to hide or conceal what is often referred to as ‘hot money’. This entails the laundering of illegal funds to convert them into ‘clean’ money, which a criminal can safely spend. As stated in De Koker (in his work South African Money Laundering in and Terror Financing Law (2014 – own insertion), money laundering is by its very nature a “secretive practice”. I am not persuaded that by spending the proceeds of fraud, a conviction of money laundering should follow axiomatically. Instead, there has to be an element of concealment which must be proven or inferred (own emphasis).

In most of the cases applicable in the present matter, services were rendered for which the tenderers received money; therefore the element of concealment has not been proved beyond a reasonable doubt.

See also State v De Vries 2012 (1) SACR 186 (SCA) Prinsloo and Others v The State (2015) ZASCA 207; State v Moosagiet and Another (2015) ZAELPEHC 31.

It therefore follows that the State has not proved money laundering as far as this count is concerned.

Count 13:

Accused 1 and 5 are charged with fraud.

Having regard to the facts and circumstances it does not justify the

conviction. The accused are therefore entitled to be discharged.

Counts 18 and 19:

The allegation is one of corruption, ie accused 1 receiving a benefit in the amount of R2000 and accused 5 paying the second amount to accused 1. According to the evidence accused 2 requested accused 5 to pay the said amount to accused 1, apparently for the boarding of accused 2’s daughter with accused 1. It follows that the State has not proved its case beyond reasonable doubt.

Count 20: (p10, p 53 – 7)

The case against accused 1, 6 and 7 is one of fraud. It is the State’s case that accused 6 as a former chairman of the Tender Board knew all the parties involved in the tender process. Accused 6 also knew Mr Moeng (Moeng Enterprises) very well over a period of many years. On a previous occasion Moeng and accused 6 were involved in obtaining a tender under the name Ajethu Distributors, where they apparently shared the profits of the tender.

Accused 6 and 7 were involved in the handling of the tender application. Moeng’s wife was a teacher in the employment of the Department of Education, which fact was not disputed by accused 6, even the fact that he was aware of it.

Accused 7 was also employed by the Department of Education, which facts were not disclosed as required.

Accused, with the intention to defraud, to the prejudice of the Department and other prospective tenderers pretended that they, or any other person connected to the tenderer were not employed by the Province, nor did they have any relationship with a person employed in the Department concerned or its administration and who might have been involved with the evaluation or adjudication of the tender.

The Court is satisfied that the State has proved its case beyond a reasonable doubt.

Counts 25 and 26: (Money laundering p 61 – 2)

It is important to keep in mind what was stated in State v Van der Linde supra. According to the evidence accused 6 refused to furnish an account number to Moeng and requested Moeng to pay him cash. It is clear from the facts that the State has proved an element of concealment as required by State v Van der Linde supra. Having regard to the facts and circumstances of the case the Court is satisfied that the State has proved the guilt of accused 6 and 7 regarding these counts beyond a reasonable doubt.

Counts 30 – 44:

The case against the accused is that they knew or ought reasonably to have known that the said property was, or form part of the proceeds of the unlawful activities of the Moeng Enterprise tender. These allegations relate to the balance of the cash payments of R25 000 which each of them received.

Having regard to State v Van der Linde supra, no concealment was proved by the State. There is also no proof as to the exact amount which was received by accused 6 and 7, apart from the R25 000 cash and disbursements. According to the schedule to the charge sheet, payments were affected by electronic fund transfer. The accused are therefore entitled to be acquitted on these counts.

Count 47 – 54: (Indictment p80 – 2)

Accused 8, 9 and 10 are charged with contravening section 6, read with sections 1, 7A and 8 of (POCA). The relevant section reads as follows:

“6 Acquisition, possession or use of proceeds of unlawful activities

Any person who-

(a)  acquires;

(b)  uses; or

(c)  has possession of,

property and who knows or ought reasonably to have known that it is or forms part of the proceeds of unlawful activities of another person, shall be guilty of an offence.”

It is the case of the State that the accused unlawfully acquired, used or possessed property, to wit certain monies, while they knew or ought reasonably to have known that the said property is or forms part of the proceeds of unlawful activities of another person, to wit fraudulent acquisition of tender number 339, Kopanang Women Enterprise.

As far as accused 8 is concerned there is no evidence that she received any money regarding the said tender. The position is different with regard to accused 9 and 10 and as indicated above they actually received money from Kopanang Women Enterprise. The court is therefore satisfied that the state has proved its case against accused 9 and 10 beyond a reasonable doubt.

As far as accused 1 is concerned, he is charged with contravening section 5 read with section 1, 7A and 8 of POCA. It reads as follows:

5. Assisting another to benefit from proceeds of unlawful activities. –Any person who knows or ought reasonably to have known that another person has obtained the proceeds of unlawful activities, and who enters into any agreement with anyone or engages in any arrangement or transaction whereby-

(a) the retention or the control by or on behalf of the said other person of the proceeds of unlawful activities is facilitated; or

(b) the said proceeds of unlawful activities are used to make funds available to the said other person or to acquire property on his or her behalf or to benefit him or her in any other way,

shall be guilty of an offence.”

It is the State’s case that accused 1 knew or ought reasonably to have known that certain monies had been obtained by certain people being the proceeds of unlawful activities. Also that they entered into a memorandum of agreement which was concluded with the said persons mentioned in count 55 or engaged in an arrangement or transaction whereby the retention or control by or on behalf of the said other persons of the proceeds of unlawful activities is facilitated or that the said proceeds of unlawful activities are used to make funds available to the said other persons or to acquire property on their behalf or to benefit them in any other way.

Having regard to the facts and circumstances of the case the Court is satisfied that the State has proved its case beyond a reasonable doubt.

Count 55: (Pp 84 – 8)

The case against accused 12 is fraud in that the tender document contained a declaration of interest whereby the tenderers had to disclose any work relationship with the Province, relationships with people in the employ of the Province whether it be friendship, family or otherwise and also whether there was any relationship whether it be family, friend or other between the tenderers and any person employed by the Department concerned, Tender Board or its administration, who may be involved with the evaluation or adjudication of this tender. It is the State’s case that the accused did not declare their interest.

It is the State’s case that accused 12 opened a cheque account for the said business, that he signed numerous blank cheques and that he misrepresented to the Department and other prospective tenderers that they or any person connected to the tenderers were not employed by the Province, whilst accused 11 was employed by the Department as a principal. It is the State’s case that the accused induced the Department of Education to believe that accused 11 was not employed by the Province or that there was no connection between him and any person in the Department of Education.

Having regard to the evidence tendered by the State and the circumstantial evidence the Court is satisfied that the State has proved its case beyond a reasonable doubt.

As far as accused 1 is concerned, the State has not laid a foundation to convict him as an accomplice and he is therefore entitled to be acquitted with regard to this count.

Count 56:

Mr Swanepoel on behalf the State applied for a conviction of contravening section 38(1)(a)(iii) of the Public Finance Management Act. However, according to the indictment accused 1, 11 and 12 are charged with money laundering in that they contravened section 4(a)(b)(i)(ii) of POCA.

It is not clear on which evidence the State relies regarding this count. In view of the uncertainty in the State’s case, the accused are entitled to the benefit of the doubt. They are therefore found not guilty and discharged in respect of count 56.

Counts 57 – 65:

As far as the charge of money laundering is concerned the State has not proved its case beyond reasonable doubt on the same grounds as mentioned above.

In the alternative, it is the State’s case that accused 11 and 12 contravened section 6, read with section’s 1, 7A and 8 of POCA. (Indictment p92 – 4). It is the State’s case that they unlawfully acquired, used or possessed property, to wit monies mentioned in schedule 18 of the charge sheet whilst they knew or ought reasonably to have known that the said property forms part of the proceeds of unlawful activities, to wit fraudulent acquisition of tender no 53 (Matsapela Distributors).

Having regard to the facts and circumstances of the case the Court is satisfied that the State has proved its case beyond a reasonable doubt. As far as accused 1 is concerned, he is charged with contravening section 5 read with section 1, 7A and 8 of POCA relating to the same tender. The Court is satisfied, having regard to the evidence in this case that the State has proved its case beyond a reasonable doubt.

Count 65: (p97 – 8)

Accused 11 is charged with contravening section 1(1)(a) read with section 3 of the Corruption Act 94/1992, corruption, in that on 18 April 2001 he wrongfully, intentionally and corruptly gave accused 4 a benefit, namely R820.

Having regard to the evidence led by the State, which evidence is accepted, the Court is satisfied that the State has proved its case beyond a reasonable doubt.

Count 66: (p98 – 9)

Accused 4 is charged with contravening section 1(1)(b) of the said act, namely receiving a benefit in that on 18 April 2001 he received an amount of R820, referred to in count 65 above.

The Court is also in this case satisfied that the State has proved its case beyond a reasonable doubt.

Count 68: Corruption – receiving a benefit (p100 – 1)

Accused 4 is charged with contravening section 1(1)(b) read with sections 2 and 3 of the Corruption Act 94/1992, namely receiving a benefit of R820 on 31/05/2001. According to the evidence of Spies, the correct amount is R2700. Having regard to the circumstances of the case and the evidence led by the State, the Court is satisfied that the State has proved its case beyond a reasonable doubt.

Count 69: (p101 – 5)

Accused 13 is charged with fraud in that she did not declare that she was employed by the Free State Department of Education; thereby she acted wrongfully and unlawfully and with the intention to defraud the Department and other prospective tenderers by omitting to mention the said facts in the application form.

Having regard to the evidence in this case the Court is satisfied that the State has proved its case beyond a reasonable doubt.

Count 69: (p105 – 6)

It is the State’s case that accused 1 contravened section 38(1)(a)(ii) read with section 1, 36 and 86(1) of Act 1/1999, the Public Finance Management Act. It is the State’s case that there was a duty on accused 1 to maintain an appropriate procurement and provisioning system which had to be fair, equitable, transparent, competitive and cost effective.

The court is satisfied, beyond a reasonable doubt that the State has proved its case in this regard.

Counts 70 – 78:

The State relies on contravening section 4 of POCA, namely money laundering. As stated above the element of secrecy lacks in this regard. The Court is therefore of the view that the accused are entitled to the benefit of the doubt. They must therefore be found not guilty and discharged with regard to counts 70 – 78.

[132] TO SUM UP:

A. Accused 5 and 8 are found not guilty and are discharged.

B. Accused 1 is found guilty on the following counts.

Count 6: Fraud, as an accomplice.

Count 20: Fraud, as an accomplice.

Counts 47 – 54: Contravening section 5 read with sections 1,

7A and 8 of POCA.

Counts 57 – 64: Contravening section 5 read with sections 1,

7A and 8 of POCA.

Counts 69: Contravening section 38(1)(a)(ii), read with

section 136 and 86(1) of Act 1 of 1999 (Public

Finance Management Act).

Accused 2:

Count 6: Fraud

Accused 3:

Count 6: Fraud

Accused 4:

Count 66: Contravening section 1(1)(b) of POCA

(Corruption: Receiving a benefit of R820).

Count 68: Contravening section 1(1)(b) of POCA (Corruption: Receiving a benefit of R2700).

Accused 6 and 7:

Count 20: Fraud

Count 25 & 26: Contravention of section 4(b)(i) of POCA

(Money laundering)

Accused 9 and 10:

Counts 47 – 54: Guilty of contravening section 6, read with

sections 1, 7A and 8 of POCA (Acquire, use or

posses property that forms part of the proceeds

of unlawful activities).

Accused 11:

Count 55: Fraud

Counts 57 – 64: Contravention of section 6, read with sections 1, 7A and 8 of POCA (Acquire, use or possess property that forms part of the proceeds of unlawful activities).

Count 65: Contravention of section 1(1)(a) read with section 3 of POCA (Corruption: Giving a benefit)

Accused 12:

Counts 57 – 64: Contravention of section 6, read with sections 1, 7A and 8 of POCA (Acquire, use or possess property that forms part of the proceeds of unlawful activities).

Accused 13:

Count 69: Fraud

C. As far as the other counts are concerned, the accused are

found not guilty and discharged.

______________

SPB HANCKE, J

On behalf of accused 1, 6, and 7 : Adv H Potgieter

On behalf of accused 2, 3, 4, 5, and 13 : Adv GT Langenhoven

On behalf of accused 8, 9, and 10 : Mr M Litheko

On behalf of accused 11 and 12 : Adv J Nel

On behalf of the State: Adv JBK Swanepoel with Adv MV Ponye

Instructed by: DPP