THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT
Case No: 600/09

OSCAR NZIMANDE
Appellant
and
THE STATE
Respondent

Neutral citation:  Nzimande v The State (600/09) [2010] ZASCA 80
(28 May 2010)
Coram:
MPATI P, PONNAN JA and GRIESEL AJA
Heard:
17 May 2010
Delivered:
28 May 2010
Summary:
Appeal by the State in terms of s 310 of the Criminal
Procedure Act 51 of 1977 against the appellant’s
acquittal on 197 counts of fraud – Whether the
magistrate’s finding that misrepresentations made by
the appellant to the Legal Aid Board were not made
intentionally but rather negligently was a finding of
fact or of law – Whether as a result of this the State
had a right to appeal in terms of the above section.

__________________________________________________________________

ORDER
____________________________________________________________________
On appeal from: North Gauteng High Court (Pretoria) (R D Claassen
and Prinsloo JJ, sitting as court of appeal):
1.
The appeal is upheld.
2.
The order of the high court is set aside and replaced with the
following:

‘The appeal is struck off the roll.’
____________________________________________________________________
JUDGMENT
____________________________________________________________________
GRIESEL AJA (MPATI P AND PONNAN JA concurring):
[1] The appellant was charged in the regional court for Northern
Transvaal, Pretoria with 197 counts of fraud. He was acquitted on all of
the charges. The State, contending that the acquittal of the appellant was
based on a question of law, accordingly requested the magistrate, in
terms of s 310(1) of the Criminal Procedure Act 51 of 1977 (‘the Act’),
‘to state a case for the consideration of the [high court] having
jurisdiction, setting forth the question of law and his decision thereon
and, if evidence has been heard, his findings of fact, in so far as they are
material to the question of law’. The State thereupon lodged an appeal

against the acquittals in terms of s 310(2) of the Act. The high court
upheld the appeal, set aside the acquittals in respect of some of the
charges and substituted in its stead convictions on those charges.1 It
thereupon remitted the matter to the trial court for the imposition of
sentence. With leave granted by the high court, the appellant now
appeals to this court against that order.
[2] The appellant, a qualified attorney practising in Pinetown,
KwaZulu-Natal, received and accepted instructions from the Legal Aid
Board (‘the LAB’) to appear on behalf of accused persons in a large
number of criminal cases. The charges against the appellant arose from
claims submitted by him to the LAB in respect of professional services
rendered by his firm in those cases. The charges fall into seven separate
categories, of which only three are relevant to this appeal. These were
formulated as follows in the charge sheet:
Category AA – submitting claims for attending court for a specific
period of time where the objective facts indicate that the
appellant or relevant member of his firm could not have appeared
on the exact times and for the exact duration as indicated on his
claims;

1 The judgment of the high court has been reported: S v Nzimande 2007 (2) SACR 391 (T).

Category CC – submitting claims for court attendances by him or the
relevant member of his firm in which the days on the claims do
not concur with the actual court appearances; and
Category EE – submitting claims where the charge sheets clearly show
that the appellant or the relevant members of his firm were either
absent or that no legal representative was present on the specific
days.
[3] The evidence in the trial court was largely common cause and
uncontested. The appellant readily conceded that certain irregularities
had been committed with regard to the claims submitted to the LAB and
that misrepresentations had been made in the process. His defence was
that such misrepresentations had not occurred intentionally; in other
words, he claimed to have lacked the requisite intention to defraud. The
evidence revealed that the management and administration of the
appellant’s practice was severely deficient. The thrust of the appellant’s
defence was that to the extent that he may have made representations to
the LAB he had done so negligently rather than intentionally.
[4] The magistrate evaluated the evidence as well as the applicable
case law and concluded as follows:
‘There were various irregularities. The accused did not apply proper bookkeeping
practices, that is clear from the evidence before me. It is clear that wrong dates were
given or were attached in certain claims. That is clear. It is clear that the accused had

no control, proper control over his practice and that is for the Law Society to deal
with. But whether he had the intention to defraud I am unable to say. All that I can
say is that there was gross negligence and the accused is acquitted on all counts.’
The judgment of the high court
[5] In the high court, the parties were agreed – and the court also
found – that the case as stated by the magistrate in response to the
request by the State was defective and did not comply with the
requirements of the Act.2 The high court decided, nevertheless, to deal
with the matter on the basis of the question as formulated by the State,
namely whether the facts found proved by the magistrate constituted
gross negligence only, or whether they justified a finding of dolus in the
form of, at least, dolus eventualis.3 (The question whether or not the high
court was justified in dealing with the matter on this basis is not an issue
that we need to consider in this instance.)
[6] In the high court counsel for the respondent (the present
appellant), in resisting the State’s appeal, argued that, inasmuch as all the
facts were common cause, the magistrate had to determine, by way of
inference from the facts, whether those facts constituted the relevant
offence. Counsel accordingly submitted that this entailed a factual
finding. The high court made short shrift of this argument:
‘This argument simply cannot stand. It is only logical that any inference to be drawn
(from common-cause facts) is a matter of legal reasoning to determine whether such
facts constitute (in casu) an offence. Surely that can only be done by considering the

2 Judgment paras 8–12.
3 Para 13.2.

legal requirements of the offence. In the result therefore this issue can only be a legal
question.’4
[7] Counsel for the appellant further submitted that before the
question of law could become pertinent, a finding first had to be made as
to the appellant’s state of mind, ie whether he had no honest belief in the
estimations. In this regard, the high court held as follows:
‘The answer to this is quite simple. It is common cause that the guidelines of the
Legal Aid Board (LAB) do not provide for estimates. It requires exact times of court
attendances, at least within 15 minutes. Most of [the appellant’s] “estimates” for
attending to simple postponements were between one to two or more hours. There is
no way in the world that an estimate can ever be said to be an exact time. [Counsel
for the appellant] urged upon the Court that the State did not prove that his estimates
were false, in fact they could have been correct. That is not the question. The
respondent knew that the LAB requires exact times. (His knowledge of the LAB’s
rules is common cause.) Therefore it is only logical that, if he gives an estimate, he
knows that it is not accurate, therefore to my mind he knowingly makes a false
representation. Therefore the question of the State not having proved his state of
mind is without merit. The respondent himself gave the answer to that.’5
[8] The court pointed out that most of the evidence led by the State
was not contested. The real dispute, it held, ‘centred not so much on the
respondent’s acts and deeds as such, but on his mental state, ie whether
dolus in any of its forms was present and proved’.6 In that regard, the
court reasoned as follows:

4 Para 15.
5 Para 16.
6 Para 12.

‘The final question to be answered is the legal question as to whether the common-
cause facts actually constitute the crime of fraud, whether by dolus directus or dolus
eventualis. The magistrate found as a fact that [appellant] was grossly negligent. In
light of my views set out above regarding the nature of [appellant’s] estimates, there
is no way that it can be said that [appellant] did not know that his representations as
to time were inaccurate. Simply as a lawyer he must know that estimates and exact
times are not the same. I have no doubt that, on the facts as found by the magistrate,
[appellant] not only knew that the estimates were not correct (ie false), and that the
LAB required exact times, but he wilfully persisted in his operations. To my mind
his operation constituted wilful deceit by him. The magistrate actually found that he
was “almost 100% sure that [appellant] was using the system to his advantage”. (I
think one should read “abusing”.) This clearly illustrates the point. One cannot put it
more simply or elegantly than that.’7
[9] Based on this reasoning, the high court concluded ‘. . . that, as a
matter of law, the magistrate should have found [appellant] guilty on all
those charges where he estimated his times for attending to cases on
behalf of the LAB’.8
Question of law or fact?
[10] On appeal to this court, counsel for the appellant assailed the
reasoning of the high court, submitting that the appeal, being an appeal
on a question of fact, should not have been entertained by it. For the
reasons that follow, I agree with that submission.

7 Para 17.
8 Para 18.

[11] In S v Petro Louise Enterprises (Pty) Ltd and others9 (a case
referred to in the judgment of the high court, but in a different context)10
it was argued by counsel for the State that the question whether a given
inference was the only reasonable inference to be drawn from certain
facts, was a question of law – essentially the same argument that was
addressed to the high court in this instance. The State’s argument was
rejected by the court (per Botha J, Van Dyk AJ concurring) in the
following passage:

‘I am unable to accept counsel’s widely-based and generalised proposition
that in all cases the question whether a particular inference is the only reasonable
possible inference to be drawn from a given set of facts is a question of law. To
accede to the proposition in such general terms would, I consider, open the door to
the possibility of large numbers of appeals being brought under sec. 104 of [the
Magistrates’ Courts] Act 32 of 1944, contrary to the limited scope of that section
which I conceive the Legislature contemplated. One example of those possibilities
that were canvassed during the argument will suffice. Suppose that an accused is
charged with an offence of which a specific intent is an element, e.g. assault with the
intent to do grievous bodily harm. On the evidence, the magistrate finds that such
intent is not the only reasonable inference to be drawn from the facts, and
consequently he convicts the accused of common assault. I cannot for one moment
imagine that the Attorney-General will have a right of appeal upon the footing that
an intent to do grievous bodily harm was the only reasonable inference to be drawn
from the facts.’11

9 1978 (1) SA 271 (T).
10 In para 10 of the judgment.
11 At 280B–E.

[12] In Magmoed v Janse van Rensburg & others12 Corbett CJ
(writing for a unanimous court) quoted the above passage from Petro
Louise Enterprises and expressed his ‘full and respectful agreement’
with the analysis.13 In the course of his judgment, the learned Chief
Justice also said the following:
‘[I]n my opinion, a question of law is not raised by asking whether the evidence
establishes one or more of the factual ingredients of a particular crime, where there is
no doubt or dispute as to what those ingredients are.’14
And further:
‘[T]he fact that in a particular case the prosecution relies upon inference to prove the
agreement to accomplish a common aim does not make the question as to whether
the prosecution succeeded in establishing this inference beyond a reasonable doubt
one of law. As was often pointed out in the field of income tax appeals on a question
of law, facts may be classified as primary, ie those facts which are directly
established by the evidence, and secondary, ie those facts which are established by
way of inference from the primary facts . . . . I have no doubt that an inference drawn
from proven facts that the accused had by agreement formed a common purpose
which embraced, say, the possibility of an unlawful killing is an inference of fact,
and not one of law. It is a secondary fact. It is seldom in a case of murder that there
is direct evidence of the perpetrator’s actual state of mind. Consequently, whether
the unlawful killing was accompanied by dolus in one of its forms on his part is
normally a matter of inference from the primary facts. Clearly this is an inference of
fact and any question as to whether the trial Court correctly decided this issue is a
question of fact. I can see no difference between this and the issue, also to be
determined by inference, as to whether a number of accused formed a common

12 1993 (1) SA 777 (A); 1993 (1) SACR 67 (A) – the infamous Trojan horse case.
13 At 809A (SA); 95a (SACR).
14 At 808A–B (SA); 94c–d (SACR).

purpose which embraced both an unlawful killing and dolus in one of its forms. It is
true that the legal consequences of a common purpose may be said to fall within the
sphere of a rule of law, but in a case such as this the rule itself and its scope are not
in issue. What is in issue is the factual foundation for the application of the rule. That
is a question of fact.’15

(My emphasis.)
[13] The principles so lucidly articulated in Petro Louise Enterprises
and in Magmoed have subsequently received the express imprimatur of
the Constitutional Court in S v Basson16 and are dispositive of the present
appeal. The question for decision in the present case was whether, on the
facts found proven, the State had established that the appellant had made
the misrepresentations with the necessary intention (dolus); in other
words, to use the terminology of Corbett CJ in Magmoed, the question
was whether the evidence established one of the ‘ingredients’ of fraud
where there was no dispute as to what those ingredients were. This
required an inference to be drawn from the primary facts already found.
Based on the passages quoted above, it is clear that the inference so
drawn is a secondary fact; it is not a question of law. Thus, the true
complaint of the State was not that the magistrate had committed any
error of law, but that he had drawn an incorrect inference from the facts.
Judging from the evidence as well as the judgment of the high court, this
complaint may well be valid – an issue on which we do not have to make
a finding. Suffice it to say that such error (if it was one) was one of fact,
which did not confer upon the State the right to appeal against the

15 At 810H–811D (SA); 96f–i (SACR) (other case references omitted).
16 2005 (1) SA 171 (CC) paras 46–49.

acquittal of the appellant.17 It follows that the high court had no juris-
diction to entertain the appeal, which fell to be struck off the roll.
Order
[14] In the result, I make the following order:
1.
The appeal is upheld.
2.
The order of the high court is set aside and replaced with the
following:

‘The appeal is struck off the roll.’

B M GRIESEL
Acting Judge of Appeal

17 Cf S v Coetzee 1977 (4) SA 539 (A) at 544H–545A.

APPEARANCES:
FOR APPELLANT:
M R Hellens SC
Instructed by:
Johan van Zyl Attorneys, Pretoria
Symington & De Kok, Bloemfontein

FOR RESPONDENT:
J M Ferreira
L S Mabitle

Instructed by:
The Director of Public Prosecutions,
Pretoria and Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 May 2010
Status:
Immediate
Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.
* * *
OSCAR NZIMANDE v THE STATE
– Case No 600/09

The Supreme Court of Appeal today upheld an appeal by Mr Oscar Nzimande (the
appellant) against his conviction by the North Gauteng High Court, Pretoria on
certain counts of fraud. The appellant was originally charged in the regional court
for Northern Transvaal with 197 counts of fraud. The State alleged that the
appellant, a practising attorney from Pinetown, KwaZulu-Natal, intentionally made
certain misrepresentations in claims submitted to the Legal Aid Board in respect of
professional services rendered by the appellant on the instructions of the Board.
On the evidence, which was largely common cause and uncontested, the magistrate
found that the appellant had been ‘grossly negligent’ regarding the information
contained in his claims to the Board. However, he was unable to find that the State
had proved that the misrepresentations that occurred had been made intentionally.
The State, contending that the acquittal of the appellant was based on a question of
law, accordingly noted an appeal to the North Gauteng High Court, Pretoria, against

the acquittals of the appellant. The high court upheld the appeal and convicted the
appellant on some of the charges. The appellant noted an appeal to the SCA against
the judgment of the high court.
On appeal to the SCA, the court held that the question on which the State noted its
appeal to the high court was a question of fact and not one of law. It followed that
the State had no right to appeal against the acquittals and the high court had no
jurisdiction to entertain the appeal. The SCA accordingly upheld the appeal by the
appellant and substituted the high court’s order with an order that the appeal be
struck off the roll.

--ends--