THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  20116/2014
Reportable

In the matter between:

RESIMATE EDWIN MARINGA                             FIRST APPELLANT
DORAH MADISHA                                              SECOND APPELLANT

and

THE STATE                                                                      RESPONDENT

Neutral citation:  Maringa v The State (20116/2014) [2015] ZASCA 28
(23 March 2015)

Coram:
Navsa ADP, Leach and Willis JJA and Schoeman and
Meyer AJJA
Heard:
11 March 2015

Delivered:
23 March 2015

Summary:
Section 155 and s 156 of the Criminal Procedure Act 51

of 1977—whether separation of trials is mandatory where

accused do not all face the same charges but where the

State alleges a common purpose to defraud and there is a

great deal of overlap – to be decided on consideration of

prejudice.

_____________________________________________________________________

ORDER

On appeal from: Gauteng Division, Pretoria (Potterill J and Bam AJ
sitting as court of appeal):

The appeal is dismissed.

___________________________________________________________

JUDGMENT

Schoeman AJA (Navsa ADP, Leach and Willis JJA and Meyer AJA
CONCURRING)

[1] Seven accused were arraigned in the regional court in Pretoria
facing a total of 399 charges which included fraud, forgery, uttering and
corruption. The first and second appellants were accused 1 and accused 4
respectively. The first appellant was charged with all of the counts,
barring those counts relating to the corruption charges. The second
appellant was charged with 34 counts of fraud. Before any of the accused
pleaded, the two appellants objected to being charged together with their
five co-accused. Their objection was premised on the supposition that it
was contrary to the provisions of ss 155 and 156 of the Criminal
Procedure Act, 51 of 1977 (CPA) to charge them together with the other
co-accused where they did not all face the same charges. The application

was dismissed by the magistrate and a subsequent appeal to the North
Gauteng High Court was also unsuccessful.  The court below, without
considering s 16(1)(b) of the Superior Courts Act 10 of 2013 (the Act),
granted leave to appeal.

Leave to appeal.

[2] The Act commenced on 23 August 2013.  In terms of s 16(1)(b) of
the said Act ‘an appeal against any decision of a Division on an appeal to
it, lies to the Supreme Court of Appeal upon special leave having been
granted by the Supreme Court of Appeal.’

[3] Section 17(3) of the Act provides that:
‘(3) An application for special leave to appeal under section 16 (1) (b) may be
granted by the Supreme Court of Appeal on application filed with the registrar
of that court within one month after the decision sought to be appealed against,
or such longer period as may on good cause be allowed, and the provisions of
subsection (2)(c) to (f) shall apply with the changes required by the context.’

[4] The appellants applied to the court below for leave to appeal on 23
September 2013. By that time the Act was in force and the transitional
provisions in s 52 of the Act were not applicable as the proceedings were
not pending. Judgment on appeal was delivered on 17 September 2013
and the application for leave to appeal was filed on 23 September 2013.
The court below granted leave to appeal to the SCA on 18 October 2013.

[5] It is clear from this timeline that it was not competent to apply to
the North Gauteng High Court for leave to appeal. The latter court was
sitting as a court of appeal and therefore, in terms of s 16 (1)(b) of the

Superior Courts Act this court is the court to which an application for
special leave to appeal should have been directed.

[6] The jurisdictional basis for an appeal to this court was thus absent.1
Subsequently, on the date of the hearing of this appeal, counsel for the
appellants, having been apprised by us of the applicable provisions,
applied for special leave to appeal to this court. Counsel for the State did
not oppose the application. Special leave to appeal was granted. I proceed
to deal with the merits, beginning with the background facts.

Background
[7] The broad outline of the State’s case, as is evident from the charge
sheet and the substantial summary of facts, underpinning the charges is as
follows.  The first appellant was an attorney, practicing in Johannesburg,
while the second appellant was an employee of the City of Johannesburg.
The City of Joburg Property Company (Pty) Ltd (JPC), was a company
wholly owned by the Johannesburg Metropolitan Municipality (JMM).
JPC managed and controlled property owned by the JMM.  The JMM
was the owner of all the properties mentioned in the charge sheet. During
the period January 2010 to March 2010 the JMM at no time had the
intention to sell the properties mentioned in the charge sheet, did not pass
any resolutions to sell or alienate the said properties and did not enter into
any agreement of sale of the properties with any entity, including the
company, Eildoug Investments (Pty) Ltd (Eildoug).  First appellant, so it
was alleged, devised a fraudulent scheme in terms of which Eildoug, de
facto controlled by him, would ostensibly buy the properties of the JMM

1 Pharmaceutical Society of South Africa & others v Tshabalala-Msimang &another NNO; New Clicks
South Africa (Pty) Ltd v Minister of Health  2005 (3) SA 238 para 22.

and immediately sell the properties to other unsuspecting and innocent
persons or entities.

[8] The State’s case was expressly that the seven accused acted in
pursuance of a common purpose in that the relevant properties were
identified, information on the properties collected and thereafter
marketed.  Some of the buyers were reassured as to the legitimacy of the
transactions and the possibility of the properties being rezoned. It was
alleged Peet Viljoen (Viljoen), an attorney, and the second accused,
completed the transfer documents and subsequently the properties were
transferred from the JMM to Eildoug and then simultaneously transferred
to the unsuspecting purchasers of the properties.

[9] These transactions, so the State said, necessitated the completion of
deeds of transfer and the forgery of documents to enable such transfers.
For Eildoug to buy the said properties, the following documents had to be
forged and were fraudulent: the sale agreements, the resolutions of the
JPC and the JMM, powers of attorney to transfer property, affidavits and
applications in terms of s 68(1) of the Regulations under the Deeds
Registries Act, 47 of 1937. Transfer duty receipts or exemption
certificates were obtained by bribing an official in the South African
Revenue Service. Furthermore, the deeds were submitted to The Deeds
Office, Pretoria where accused number 7, who was there employed,
executed the deeds of transfer and was paid R5000 per registration.

[10] The State’s case against the first appellant, as previously stated,
was that he was the person who devised the scheme to defraud innocent
purchasers of properties of which the JMM is the owner. He was the
person who instructed a certain Mr Africa to collect relevant information

about the properties. He met with Viljoen, also an attorney, who
completed the necessary transfer documents and he forged, or instructed
others to forge the necessary signatures on the documents.  Where the
forged documents had to be commissioned, the first appellant directed
people to firms of attorneys before whom the affidavits were attested and
he provided the funds for obtaining clearance certificates that were
needed to effect transfer of the properties. The State alleged that the value
of the money collected by the sale of the properties and paid to the first
appellant was R10,16 million.

[11]  The second appellant’s involvement concerned properties
ostensibly transferred from the JMM to Eildoug and sold by Eildoug to
Zambrotti Investments 31 (Pty) Ltd. The State alleged that on 25
February 2010 Zambrotti bought six properties for R12 million from
Eildoug, but Mr Sulliman, a director of Zambrotti, required confirmation
that the properties would be rezoned. The second appellant wrote a letter
on the letterhead of JPC that the properties had been transferred to
Eildoug and all internal requirements had been complied with and that
there were no objections to the rezoning of the properties. Mr Sulliman,
on behalf of Zambrotti, entered into further sale agreements that were
offered to him by Viljoen. Mr Sulliman requested a meeting with the
second appellant when the further agreements were concluded. At this
meeting the second appellant confirmed the validity of the transfers and
confirmed that correct procedures had been followed. The second
appellant, thereafter, in writing, again confirmed the validity of the
transactions and the fact that there were no objections to the rezoning of
the properties.

[12] The appellants argued that it is improper to charge the appellants
with their co-accused as they were not all charged with the same offences
(s 155 of the CPA). The charges faced by the appellants and their co-
accused are the following, as was set out in the judgment of the court
below:
(a)
Counts 1-30 are fraud charges. The first appellant is charged with
all the counts, but the second appellant is not charged with counts 13, 28,
29 and 30.
(b)
Counts 31-46 are alternative charges of theft to counts 1-30. The
first appellant is charged with all the counts, but the second appellant is
only charged with counts 31-41.
(c)
Counts 47-70 are charges of forgery. The first appellant is charged
with all the counts but the second appellant is not charged with any of the
counts.
(d)
Counts 160-297 are charges of uttering. The first appellant is
charged with all the counts, but the second appellant is not charged with
these counts.
(e)
Counts 298-349 are charges of corruption (giving) with none of the
appellants being charged with these counts.
(f)
Counts 350-374 are charges of corruption (giving); and
(g)
Counts 375-399 are charges of corruption (receiving) with which
the appellants are not charged.

The first appellant therefore does not face 100 charges of corruption, be it
giving or receiving and the second appellant only faces 34 charges of
fraud.  This, it was submitted, is contrary to the provisions of s 155 and
156 of the CPA, and it was accordingly impermissible and irregular to
charge the appellants with the other accused.

Sections 155 and 156 of the Criminal Procedure Act.

[13] Section 155 of the Criminal Procedure Act provides:
‘155 Persons implicated in same offence may be tried together
(1) Any number of participants in the same offence may be tried together and
any number of accessories after the same fact may be tried together or any
number of participants in the same offence and any number of accessories after
that fact may be tried together, and each such participant and each such
accessory may be charged at such trial with the relevant substantive offence
alleged against him.
(2) A receiver of property obtained by means of an offence shall for purposes
of this section be deemed to be a participant in the offence in question.’
While s 156 provides as follows.
‘156 Persons committing separate offences at same time and place may be tried
together
Any number of persons charged in respect of separate offences committed at
the same place and at the same time or at about the same time, may be charged
and tried together in respect of such offences if the prosecutor informs the court
that evidence admissible at the trial of one of such persons will, in his opinion,
also be admissible as evidence at the trial of any other such person or such
persons.’

[14] The purpose of ss 155 and 156 is to avoid a multiplicity of trials
where there are a number of accused. This is where essentially the same
evidence on behalf of the prosecution is led on charges faced by all the
accused.2  It is to avoid prejudice to both the accused and the prosecution.

2 E  du Toit et al Commentary on the Criminal Procedure Act Service Edition 52 (2014) at 22-44.

[15] The trial court exercises a discretion to decide whether to allow a
trial to proceed or order a separation of trials. The way this discretion has
to be exercised has been set out in S v Ntuli & others: 3
‘In exercising its discretion the trial Court has to weigh up the likelihood of
prejudice to the applicant accused resulting from a joint trial against the
likelihood of prejudice to the other accused or the State if their trials are
separated, and decide whether or not, in the interests of justice, a separation of
trials should be granted. "Prejudice" there means prejudice in the sense that no
injustice should be caused to the party concerned, including the State…. The
weight to be given to each of the relevant factors in the adjudication of this
issue is for the trial Court to assess in the exercise of its discretion.’

[16] R v Heyne &others 4 was a matter where three companies and 15
natural persons were charged with fraud committed over a period of two
and a half years. There, the case against the accused was that the accused
consistenly over the said period, had acted in concert, created books and
documents containing false entries and misleading omissions in order to
deceive the police and auditors.  It was held that:
‘… [P]ractical considerations must decide whether it is permissible to charge a
person with a course of conduct when what he has done consists, not of an
unbroken spell of uniform behaviour, … , but of a series of closely following
similar acts,…. Those considerations require that in a proper case a planned
course of fraudulent conduct may be charged as a single crime of fraud, even if
it might also be possible to analyse it into a series of separate frauds. . . .  It is
true that the period was a very long one and it appeared from the Crown case
that not all the accused persons could have been associated with the course of
conduct over the whole period of its existence. But that was not a sufficient
reason for holding that they could not be charged upon a fraudulent course of

3 S v Ntuli & others 1978 (2) SA 69 (A) at 73.
4 R v Heyne &others 1956 (3) 604 (A).  Heyne did not refer to ss 327 and 328 of the Criminal
Procedure Act 56 of 1955, the precursors of ss 155 and 156 of the CPA.

conduct if they acted in concert to make a systematic series of false
representations. Where the participations of several collaborators have not
covered precisely the same period, particulars may be necessary to inform them
of the extent of their alleged participation, but the Crown would not be
precluded from charging them together on a course of conduct basis. In each
case it is necessary to decide whether there has been prejudice to the accused;
in the present case there has been none.’ 5 (My emphasis)

[17] Counsel for the appellants, inter alia, referred us to S v Ramgobin 6
as authority for the proposition that it is not permitted to charge different
accused in the same trial where they do not all face the same charges.  I
am of the view that Ramgobin does not support his contentions.  In
Ramagobin the indictment against the 16 accused comprised a main count
of treason, allegedly committed from 1980 to 1985, plus five alternative
counts. All the accused were joined in the main count and two of the
alternative counts but only some of the accused were joined in the other
alternative counts. The state in that instance did not rely on the provisions
of s 156 of the CPA, as the alleged acts were not committed at the same
place, or the same time, or at about the same time.7  It was argued that the
joinder of the accused with each other in one count of treason was not
permissible as there were a number of different acts, widely differing in
time and place of committal by the various accused. The court found that
the ‘. . . [P]ractice, therefore of charging a series of acts committed by
different accused at different times over a period in pursuance of one
overall plan or design as one offence, notwithstanding that each such act
could form the subject of a separate charge, is well-established in our law,

5 Heyne 616G-617B.
6 S v Ramgobin & others 1986 (1) SA 68 (N).
7 Ramgobin at 75D.

and rests on Appellate Division authority.’8 The court held that joinder of
all the accused in one indictment on the treason charge was competent
and not irregular. This is no authority for the proposition that each
accused had to be charged with every offence in the indictment.

[18] In S v Naidoo 9 the appellant was the second of two remaining
accused charged with theft, fraud and various statutory offences and
contravening sections of the Prevention of Organised Crime Act 121 of
1998. Prior to the start of the trial the appellant brought an application
claiming misjoinder as he had not been charged with all the charges
levied at accused one. The application was dismissed and on appeal to the
full bench of the court, the appeal was dismissed. The court held that:
‘For each of the main counts, and the alternatives thereto, there is only one set
of facts which might result in a conviction on the main counts or on one of the
alternatives. What is clear is that in relation to each count, or alternative
thereto, the evidence relied upon by the prosecution relates to the ongoing,
continuing or repeated participation of each of the accused, and in particular
accused 1 and the appellant in the illegal rackets in which they are all
participants. Despite the fact that the nature of the part played by each accused
could be different from that of another accused, the evidence would remain the
same to prove the conspiracy between them or the individual counts on which
accused 1 has been charged in the alternative.’10

[19] It is clear from the charge sheet that the alleged offences were
committed within a period of two months and were therefore committed
at about the same time and place and were furthermore in furtherance of a
common purpose. The charge sheet enunciated it. The scheme was

8 S v Ramgobin at 79G.
9 S v Naidoo 2009 (2) SACR 674 (GSJ).
10 Naidoo para 18.

designed to fraudulantly sell property belonging to the JMM and to
transfer those properties to buyers in order for the accused to collect the
proceeds of such sales. In order to succesfully effect such transfers it was
necessary for officials in SARS and the Deeds Office to co-operate in the
furtherance of the common purpose, otherwise the properties could not be
transferred and registered. These officials were bribed and therefore the
corruption charges are part and parcel of the overall design of the scheme.
There is a whole mosaic of evidence that will be necessary to prove the
scheme and the participation of the various accused in its different facets.

[20] The only prejudice to the appellants that was mentioned by counsel
was that the appellants would have to sit through a trial while evidence
would be presented that would not relate to charges they faced.  In my
view, the prejudice is exaggerated in that the corruption and other charges
are but a part of the scheme that will proved. On the other hand, if
separation is ordered, the State will suffer prejudice. There will have to be
three separate trials (for the two appellants can then not be tried together)
where the same witnesses will have to testify about the same facts. This is
inimical to the interests of the State and against the principle that there
should not be a multiplicity of trials relating to essentially the same facts
and body of evidence.  The prejudice, asserted by the appellants, is in the
greater scheme of things, minimal.

[21] Furthermore, the magistrate exercised his discretion in refusing a
separation of the trials and there has been no indication why such
discretion has not been exercised judicially.

[22]  For the above reasons the following order is made.

The appeal is dismissed.

______________________

I SCHOEMAN
ACTING JUDGE OF APPEAL

APPEARANCES

For Appellant:
M M Hodes
Instructed by:
I Mabunda Attorneys, c/o M L Kekana Inc,
Silverton, Pretoria
Symington & De Kok, Bloemfontein

For Respondent:

A G Janse van Rensburg
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

23 March 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Maringa v The State  (20116/2014) [2015] ZASCA 28 (23 March 2015)

Media Statement

Today, the Supreme Court of Appeal (SCA) dismissed an appeal against a decision of the
Gauteng Local Division, Johannesburg on appeal to it.

The issue before the SCA was whether the appellants could stand trial together with five other
accused when they did not all face the same charges.

The appellants are the co-accused of five other accused who are charged with 499 counts of
fraud, forgery, uttering and corruption. The two appellants do not face all of the same charges
as the other accused and due to this fact they objected to their joinder on the basis that such
joinder is contrary to the provisions of ss155 and 156 of the Criminal Procedure Act 51 of
1977.

It was clear that the alleged offences were part of a scheme to sell properties belonging to the
Johannesburg Metropolitan Municipality. The alleged offences were committed within a period
of two months and were committed at about the same time and place and were in furtherance
of a common purpose.

The prejudice the appellants might suffer would be to sit through a trial while evidence was
being presented about charges they might not face. This prejudice is minimal. If the trials
were separated the State will suffer real prejudice as there would have to be three separate
trials and this is against the principle that that there should not be a multiplicity of trials
relating to essentially the same facts.

The regional court magistrate excercised a discretion in refusing separation of trials and such
discretion was judicially exercised.
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