THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

Case no: 425/08

No precedential significance

JACOBUS LOUIS BOTHA

Appellant

and

THE STATE                                                                                   Respondent
______________________________________________________________

Neutral citation:
Botha v S [2009] ZASCA 125 (29 September 2009)

CORAM:

NAVSA and LEWIS JJA and LEACH AJA

HEARD:

9 September 2009
DELIVERED:
30 September 2009

SUMMARY: Minor inaccuracies in charge sheet not sufficient to find that
accused did not know what case he had to meet: copies of documents
admissible as best evidence:  appellant convicted on 69 charges of fraud, one
of forgery and one of uttering: appeal upheld only to extent of changing one
conviction to convictions on all charges: sentence of 12 years’ imprisonment
confirmed.

ORDER

On appeal from: North Gauteng High Court (Preller and Motata JJ sitting as a
full bench on appeal).
1 The appeal is successful only to the extent that the substitution by the high
court of convictions on 69 charges of fraud with a conviction on one charge of
fraud is set aside.
2 The order of the high court is altered to read as follows:
‘(a) Save that the conviction on charge 72 is set aside, the appeal is
dismissed.
(b) The appeal against sentence is upheld. The sentence is set aside and
replaced with a sentence of twelve years’ imprisonment.
(c) This sentence is deemed to have commenced on 15 November 2001.’
JUDGMENT

LEWIS JA (NAVSA JA AND LEACH AJA CONCURRING)
[1] The appellant, Mr J L Botha, practised as an attorney in Potgietersrus
(now Mokopane). On 8 November 2001 he was convicted in the Regional
Court, Pietersburg (now Polokwane), on 69 counts of fraud, two counts of
forgery and one count of uttering. He was sentenced in November 2001 to a
total period of 29 years’ imprisonment, several sentences to run concurrently
such that the effective sentence amounted to 18 years’ imprisonment. Botha
had pleaded not guilty to all the charges. He appealed against all the
convictions and sentences to the North Gauteng High Court.

[2] The appeal was heard by the full bench (Preller and Motata JJ) on 29
November 2004 and was effectively dismissed on 7 March 2007, save that
the high court substituted for the 69 counts of fraud only one charge of fraud,
apparently assuming it could do so; upheld the appeal against one charge of
forgery and dismissed the appeal in respect of one charge of forgery and one
of uttering. The effective period of imprisonment was reduced to 12 years.
Leave to appeal against conviction and sentence was given by this court. This
is effectively an appeal against the conviction on charges 1 to 71.

[3] Both Botha and the State agree that the combination of 69 counts by
the high court into one was impermissible and that an accused is entitled to
be either acquitted or convicted in respect of every charge laid against him or
her. Section 106(4) of the Criminal Procedure Act 51 of 1977 provides that an
accused who pleads to a charge is entitled to ‘demand that he be acquitted or
convicted’.

[4] Botha was not granted bail pending appeal and by the time this appeal
was heard he had been released from prison on parole.

[5] The 69 charges of fraud were alleged in the charge sheet to have been
committed over a period from October 1996 to May 1999. In respect of counts
1 to 63, the charges were that on the dates set out in a schedule to the charge
sheet, and at Pietersburg, Botha, in the name of various business entities also
set out in the schedule, wrongfully, falsely and with the intention to defraud,

presented returns to the South African Revenue Service (SARS) claiming
repayment of Value Added Tax paid to suppliers, also listed in the schedule,
based on false invoices. The amounts claimed were also set out in the
schedule. In misrepresenting that the VAT returns were true, the State
alleged, Botha had prejudiced SARS which had accepted the returns as
correct and paid the amounts set out in the schedule, for the benefit of Botha.

[6] Counts 64 to 69 were of the same nature save that it was alleged that
the offences were committed in Klerksdorp. All the charges of fraud were
brought on the basis that Botha was instrumental in the creation of false
invoices for goods or materials supplied to one of the entities over which he
had control; that he had drafted tax returns claiming VAT refunds which would
be signed by a member of his staff in the legal practice as the ‘bookkeeper’
(though in fact not one of those who signed was a bookkeeper or knew
anything about the books); that he would ensure the submission of the returns
to SARS; and that SARS would make the refunds to the entity claiming, to its
prejudice. A number of entities and suppliers were involved. None of the VAT
201 returns was signed by Botha himself.

[7] No purpose would be served in describing each charge and the entities
involved. Suffice it to say that there were some eight businesses that allegedly
made the claims for VAT refunds over the two year period and five suppliers
whose tax invoices were involved. An example suffices. The first charge was
that on 31 October 1996, in the tax period October 1996, a return was
submitted by ‘L Botha Praktyk’ (Botha’s legal practice) claiming two amounts

– R22 000 and R20 844.47 – in respect of VAT payments that had been made
to ‘Primaforce’. (The invoices used in support of the claims were those of
Bosveld Automotive Centre trading as  ‘Primaforce Exhausts Potgietersrus’,
and reflected work done on ‘swaar voertuie’ (heavy vehicles such as trucks). )
The other charges follow the same pattern.

[8] The evidence of the State before the trial court comprised the
testimony of a tax inspector from SARS, Mr A J Vogel, former business
associates of Botha and several former employees in his practice, all of whom
gave evidence on their role, at the instance of Botha, in the submission of the
VAT returns or the creation of false invoices. The State produced either the
original returns (VAT 201 forms) or copies, VAT input lists, and invoices or
copies of them. Botha did not give evidence in his own defence.

[9] The defences before the trial court and the arguments on appeal are
that the charge sheet was defective in that the correct name of every entity
which made claims is not given; that Botha’s share or involvement in it is not
correctly stated; that the evidence is largely circumstantial (this is, however,
really an attack on the authenticity and admissibility of the documentary
evidence, to which I shall return); and that some of the witnesses were not
credible, especially since two of them had been convicted of fraud for some of
the offences with which Botha was charged, and were warned against self-
incrimination as witnesses in terms of s 204 of the Criminal Procedure Act, as
was one other witness who had not been prosecuted.

[10] Much was made also about the fact that several documents on which
the State relied had been found by Vogel on his desk, and that he did not
know who had put them there (a matter to which I shall return). The gravamen
of the defence was, however, that Botha did not know what case he had to
meet since the charge sheet was inaccurate in many respects. It was argued
thus that he had not had a fair trial.

[11] It is of course true that an accused is entitled to know exactly what
charges he or she has to meet, and that a conviction on the basis of a
different charge that has not been made, either initially or through an
amendment during the course of the trial, would be unfair: S v Rosenthal
1980 (1) SA 65 (A) at 89D-H. In this case, however, the State did not seek or
gain a conviction on any charge not set out in the charge sheet, including the
schedules, itself. Botha’s argument that the schedule was inaccurate in
certain respects does not go to the substance of the charges. It goes to the
information in the charge sheet which was not actually necessary (such as the
membership of some of the entities that made the VAT returns). Moreover the
charge sheet, including the schedules, can in my view be easily read and
understood. Thus the contention that he did not know what case he had to
meet cannot be accepted.

[12] It should be stated also that during the course of the trial, which
extended over a lengthy period, Botha’s legal representative did not ever
assert that Botha did not know what case he had to meet. The witnesses were
all cross examined at length and it is apparent that Botha knew exactly what

the charges were. He and his legal representative had access to all the
documents that underlay the charges. The defence had also requested, and
been given, further particulars for the purpose of pleading and preparing for
trial.

[13] Because of the use of many documents and the related oral evidence,
not generally led in any particular order, the appeal record is not a model of
clarity. Before the hearing this court requested counsel for Botha and the
State to provide schedules indicating which documents in the record were
used as evidence in respect of each charge, whether they were original or
copies, and whether they were regarded as admissible or were contested. A
postponement of the hearing was granted to allow counsel the required time
to provide the schedules requested. The State provided a schedule timeously.
Botha’s counsel produced three volumes on the morning of the hearing. We
have worked thus on the schedule provided by the State which has been
checked against the record. The schedule demonstrates that there was both
documentary and oral evidence in respect of every charge.  I shall revert to
the issue whether copies of documents suffice.

[14] I shall not deal with the oral evidence in any detail, nor even mention all
the witnesses: no oral evidence was led for the defence, and the extensive
cross-examination of each witness by Botha’s legal representative did not
reveal any substantive flaw in the State’s evidence. The trial court found that
the witnesses were credible and those who were warned in terms of s 204 of
the Act had given satisfactory evidence. There was no argument on appeal

that the evidence was not credible – only that it was circumstantial. That in
itself is hardly a flaw. But in any event, as the ensuing discussion will show, it
is untrue that the evidence was mainly circumstantial. A host of witnesses
testified and identified documents which they said they had signed or
completed on Botha’s instructions. These documents are referred to in the
charge sheet.

[15] The evidence led at the trial tells the story of how the alleged frauds
were perpetrated. Vogel, who gave evidence first, was a tax inspector in
SARS. While doing random checks on VAT returns he chanced on a return
from an entity known as Olbo (Pty) Ltd, which seemed to him to be
suspicious. He arranged a tax inspection with Botha who was registered as
the representative of Olbo. Vogel and a colleague met Botha at a hotel in
Potgietersrus. He also went to the premises of Olbo but could not establish
what sort of business it ran. He subsequently arranged with members of the
South African Police Services to do further inspections at Botha’s offices and
at his home.

[16] Vogel and police working with him found several copies of VAT returns
and of tax invoices on these inspections, and he requested Botha to send him
other documents relating to the VAT claims of a number of businesses in
which Botha had some involvement. Shortly after that, on returning to the
SARS offices one day, he found a pile of documents on his desk which
related to the businesses in which Botha was involved, including his legal
practice, and he and the police pursued their investigation of the VAT claims

and payments made. Botha has questioned the provenance of the documents
that Vogel found on his desk. Vogel’s response to questioning in this regard
was that he did not know how they had got there and by whom they were
delivered. But one cannot escape the compelling inference that they came
from Botha himself since he had been asked to provide further documents to
Vogel, and since, as I have said, witnesses testified about their roles in the
creation of all the documents in question on Botha’s instructions.

[17] Vogel also testified about meetings that he had with a Mr K H Dauth
and a Mr S Louwrens, both of whom also gave evidence. Vogel obtained
statements from them as to their complicity with Botha in making false
invoices. Dauth and Louwrens were also charged with fraud and forgery
respectively, and both had pleaded guilty and been convicted and sentenced.
(They were warned in terms of s 204 of the Act.) The essence of the evidence
was that Louwrens and Dauth, among others, had been requested to invoice
other businesses by Botha. Louwrens asserted that he had believed that the
invoices were genuine and that he had been misled by Botha. Botha had in
fact arranged for a business in Louwrens’s name to be registered as a VAT
vendor. For his part in creating false tax invoices Louwrens was charged with
six counts of forgery. He pleaded guilty and was sentenced to five years’
imprisonment followed by correctional supervision in terms of s 276(1)(i) of
the Act.

[18] Dauth acknowledged that he knew that what he was doing was wrong,
but said that he had, at the time in question, been an alcoholic and was

dependent on Botha. His business, Prima Force, had ceased to trade; he was
in dire financial straits and he had been willing to create false invoices for
work done to vehicles, and for other purposes, at the request of Botha. The
invoices underpinning the first charge, described above, were written by
Dauth, who knew that they were false, but was willing to assist Botha in what
he was told were bookkeeping arrangements. For his role, Dauth was
charged with 74 counts of forgery. He pleaded guilty and was sentenced to
seven years’ imprisonment which was suspended for four years.

[19] The other witness warned in terms of s 204 was Ms C F Peuckert, who
was employed in Botha’s practice. She too had given a statement to Vogel
about the false returns she had signed on Botha’s instructions. She had spent
several days, after Vogel first began investigating Botha, sorting out papers,
compiling files of invoices, and typing ‘input lists’ for VAT refunds, all from
material that had been given to her by Botha. Peuckert testified that she had
been instructed by Botha to take the computer on which she worked home
and to destroy the data on it. She had, however, copied files from the
computer to stiffie disks and handed them to the police.

[20] Peuckert also testified that Botha had gone to Namibia, apparently with
the intention of evading a trial, and had summoned her to meet him there on
the pretext that she too might be charged and should leave the country. She
had indeed gone to Namibia but returned to South Africa when she realized
that Botha’s reason for summoning her was to continue a sexual relationship
with her and not to protect her from prosecution.

[21] Another employee in the practice, Mrs Smith (Engelbrecht when she
gave evidence) testified that she had filled out tax invoices on Botha’s
instructions (all on the same day) in respect of a business known as Basson
and Sons, and had also signed VAT returns in the capacity as bookkeeper
although she was not one.

[22] Charges 70 and 71 (the trial court did not convict Botha in respect of
charge 73, and the high court upheld Botha’s appeal on charge 72) are for
forgery and uttering respectively. They relate to an attorney, whose tax
invoice book Botha allegedly took when on a visit to Van Niekerk’s offices.
Van Niekerk’s testimony and documents adduced by the State showed that
invoice pages were removed from the book, and filled in by Botha, reflecting
payments payable to him for work done for a number of clients, none of which
was genuine. The invoices were found in Botha’s offices. Only one invoice
was sent to SARS, however, hence the one conviction for uttering and two for
forgery.

[23] Botha’s signature did not appear on any of the documents adduced by
the State, although some had been partially completed by him. But in my
view, the evidence that he instructed other people to fill in false tax invoices
and submit signed VAT returns to SARS, to its prejudice and for his benefit, is
overwhelming. There are documents that support each charge, and the State
witnesses testified as to who filled in tax invoices, completed VAT 201 returns,
and the reasons for doing so: Botha had instructed them so to do.

[24] Moreover, the documents speak for themselves in so far as falsity is
concerned. No explanation was proffered as to why Prima Force, for example,
would do extensive and costly work on trucks for an attorney’s practice.  Nor
was there an explanation why a furniture dealer (Basson and Sons) sold wild
animals to a farm on land that could not be traced. These are random
examples of the kinds of claims that were made on Botha’s instructions.

[25] The input tax statements generated in Botha’s office also tell a story.
Again, a random example illustrates this: for the period December 1996 to
January 1997, the claims for repayment of VAT in respect of Botha’s practice
each amounted to less than R30 (some for just 98 cents) except for two –
claims in respect of moneys paid to Bosveld Automotive Centre (Prima
Force), one for repayment of R23 000 (the charge for the work being R187
285.71) and the other for R24 179.33 (the charge for the work by Bosveld
Automotive Centre being R196 888.83).

[26] And as the trial court said, Botha chose his people well: he ensured
that those whom he requested to fill in tax invoices or sign VAT returns were
in some way dependent on him: friends who were in dire economic straits like
Dauth, and  employees who would obey his instructions without demur.
Another significant aspect is that all the businesses dealt with each other,
rendering or receiving goods and services. And several individuals, like
Louwrens, were involved in different capacities in several of the transactions
that facilitated the frauds. The pattern repeated itself with different friends and

different employees, but in every case it was Botha who orchestrated the
making of false representations to SARS with intent to defraud, to their
prejudice and to his benefit.

[27] For each charge the State adduced documentary proof, sometimes the
original documents and sometimes copies. Botha’s legal representative in the
trial argued at length that no reliance could be placed on copies. But no
evidence was adduced by him to show that they were not authentic copies.
And since many of the documents were computer-generated it cannot be said
that the documents were not the originals. While clearly it is preferable for
original documents to be produced as evidence, where this is not possible or
practicable, there is no reason, in the absence of countervailing evidence as
to its lack of authenticity, not to accept it as the best evidence available.
Moreover, several witnesses testified as to the handwriting on various
documents – whether their own or Botha’s – and none of this evidence was
countered. I see no reason not to accept the authenticity of the copies of tax
returns or invoices introduced in evidence by the State.

[28] The argument for Botha on appeal was thus reduced to one that he did
not know what case he had to meet at the trial. As I have said, that is plainly
not the case. He would have known from the charge sheet exactly when and
where each fraud was allegedly committed, which entities were involved and
the sums involved. He had provided many of the documents himself and had
filled in parts of some. The oral evidence of those who had been instrumental
in committing the frauds also came as no surprise to him for they had made

statements to the police at the outset of the investigation and all this evidence
was disclosed to him. That the State made inaccurate statements as to the
nature of a business entity (whether it was a close corporation or a company,
for example) or as to the interests in the various entities, is irrelevant. All the
elements of the frauds committed by Botha – unlawfully making false
representations with the intent to deceive, to the prejudice of SARS – were
alleged and proved beyond reasonable doubt.

[29] In my view Botha was correctly convicted on 71 charges by the trial
court.  The high court’s judgment on appeal must thus be set aside. That
leaves the question of sentence. Botha does not appeal against the sentence
imposed by the high court, effectively twelve years’ imprisonment, and the
State has not argued strenuously that the reduction to 12 years’ imprisonment
was unjustified.

[30] In the circumstances it is not improper to impose only one sentence in
respect of all the convictions, and since there is no appeal against it, it should
be left as it stands.

[31] 1 The appeal is successful only to the extent that the substitution by the high
court of convictions on 69 charges of fraud with a conviction on one charge of
fraud is set aside.
2 The order of the high court is altered to read as follows:

‘(a) Save that the conviction on charge 72 is set aside, the appeal is
dismissed.
(b) The appeal against sentence is upheld. The sentence is set aside and
replaced with a sentence of twelve years’ imprisonment.
(c) This sentence is deemed to have commenced on 15 November 2001.’

_____________
C H Lewis
Judge of Appeal

APPEARANCES:

For Appellant:

D Bisschoff

Instructed by:
J L Botha

Mokopane

Saffy & Associates

Bloemfontein

For Respondent:

J H T Schutte

Instructed by:        Director of Public Prosecutions

Pretoria

Director of Public Prosecutions

Bloemfontein