IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

NORTH GAUTENG HIGH COURT

CASE NO: A 112/2008

In the matter between:

SYDNEY MAREE Applicant and THE STATE Respondent

SUPPORTING AFFIDAVIT

I, the undersigned,

SYDNEY MAREE

do hereby make oath and say that:

1. I am the Applicant in this matter. I am an adult male aged 52

years. I depose to this affidavit in support of my application for

the relief as set out in the notice of motion. Unless otherwise

stated, the facts herein contained are within my personal

knowledge and are to the best of my knowledge both true and

correct. Legal submissions made in this affidavit are made on

the advice of my legal representatives.

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2. THE JUDGMENT AGAINST WHICH LEAVE IS SOUGHT:

The purpose of this application is to apply, in accordance with

Section 316(8) of the Criminal Procedure Act No. 51 of 1977

for leave to appeal against the judgment and orders issued by

Msimeki J and Van der Bijl AJ in the North Gauteng High Court

in which an appeal against conviction and sentence was

dismissed and a subsequent application for leave to appeal

was denied. The written judgment in which the appeal was

dismissed was dated 29 October 2010. It is attached as

Annexure “SM1”.

3. THE ORDER REFUSING LEAVE:

Leave to appeal against the dismissal of the appeal was

refused on 3 December 2010. The written order refusing

leave was issued on the same date. It is Annexure “SM2” of

the notice of application.

4. LEAVE TO APPEAL:

I am advised that it is trite law that leave is granted where

there are reasonable prospects of success on appeal. There

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are reasonable prospects where, as here, the Trial Court

erred in the consideration and acceptance of the evidence of

a single witness.

5. In order to indicate the grounds upon which leave to appeal is

sought I deem it necessary to briefly set out the background

and the evidence led in support of the State’s case.

6. BACKGROUND:

6.1 I was charged in the Special Commercial Crime Court

Gauteng on 2 charges of fraud. I was convicted by the

regional court on both charges and sentenced on 14 August

2008 to 10 years’ imprisonment half of which was

conditionally suspended for 5 years. Both the 2 charges were

taken together for purposes of sentence.

6.2 It was the State’s case that I, in the capacity as Chief

Executive Officer of the National Empowerment Fund ( NEF),

a trust established by Section 2 of the National Empowerment

Act, 1988 (Act 105 of 1998) caused two fraudulent payments

to be made to my account. The amounts involved were

R518,700.00 and R399,000.00.

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6.3 It was throughout the proceedings my defence that I had

acted upon the instructions of the Director General of the

Department of Trade and Industry and that I had no intention

to commit a crime.

7. EVIDENCE AT THE TRIAL:

7.1 As indicated, I have acted on the instructions of the Director

General, and subsequently most of the evidence was

admitted in terms of Section 220 of the Criminal Procedure

Act.

7.2 The State called several witnesses of which Dr Ruiters (

Director General Department of Trade and Industry) and Mr

Kingston of Deutche Bank are the most important witnesses in

the adjudication of this matter. Dr Ruiters was called to

provide the following evidence:

7.2.1 That the National Empowerment Fund had to submit a

business plan to the Minister of Trade and Industry.

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7.2.2 That Deutsche Securities (S.A.) (Pty) Ltd (Deutsche

Securities) undertook to provide to the NEF advisory

services on an appropriate business plan at no cost and

that such an undertaking was embodied in a document

dated 2 April 2004 (the mandate). In terms of this

mandate Deutsche Securities has obtained a first right

of refusal with regard to any future contracts with the

National Empowerment Fund.

7.2.3 It was my evidence that I, upon the instruction of Dr

Ruiters, created the two invoices and obtained these

funds in order to pay Deutsche Securities for the work

done in terms of this mandate. It was throughout the

proceedings my contention that this was with the view to

negate any further claims by Deutsche Securities for a

right of first refusal on future work.

7.3 The second witness called by the State was a certain Mr

Kingston who represented Deutsche Securities during the

conclusion of the mandate. It was throughout the proceedings

the contention and evidence of Dr Ruiters that he had no

knowledge of the provisions of the mandate which provided

the right of first refusal to Deutsche Securities.

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7.4 The Honourable Court of Appeal, found that if it is proven that

Dr Ruiters had no knowledge of the provisions of the mandate

then my version cannot be reasonably true conversely, if he

had knowledge my version could possibly be true.

7.5 The crisp issue was therefore whether it was proven by the

State beyond reasonable doubt that Ruiters did not have any

knowledge of the terms of the mandate. The fundamental

difficulty in the State’s case is the fact that it was based solely

on the credibility of one witness namely Ruiters.

8. THE GROUNDS ON WHICH LEAVE TO APPEAL IS

SOUGHT:

8.1 Ruiters claimed that he had no knowledge of the provisions of

the mandate. The evidence by Ruiters was challenged and it

was put to Ruiters that the affidavit by Kingston contradicted

his evidence. Furthermore, the viva voce evidence of

Kingston also contradicted Ruiters when Kingston testified

that Ruiters was aware of the terms of the mandate.1

1 Record, p 122 l 5-10 Record, p 146 l 2

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8.2 Ruiters furthermore contradicted his own evidence when he

testified that at the time when he confronted me he only knew

of one incident.2 This evidence by Ruiters was furthermore

contradicted by the evidence of Frost who testified that when

he was called by Ruiters, which was before Ruiters confronted

me, Ruiters indicated that he was investigating two

transactions3.

8.3 It was clear from the evidence of Kingston that a certain Van

Coller was instrumental in the drafting of the terms of the

mandate. Van Coller deposed to an affidavit which was

supplied to my legal representatives in which Van Coller

contradicts the evidence of Reuters. The content of the Van

Coller affidavit was put to Ruiters4. Ruiters has denied the

truth thereof.

8.4 On the face of this evidence, my legal representatives

established that the evidence given by Ruiters was not only

contradictory in nature but also in contradiction of the

evidence contained in the affidavit by Van Coller. That much

2 Record, p72 l 10 reference to his own affidavit 3 Record p 251 l 23 4 Record p 67 l 5

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is apparent from the content of the Van Coller affidavit which

was put to Ruiters. The State however failed to call Van

Coller as a witness. The State indicated at the outset of the

trial that they are not calling Van Coller. It was contended and

argued by my legal representatives that by not calling Van

Coller the circumstances require that a negative inference

should be drawn against the evidence of Ruiters. 5

8.5 It was further put to Ruiters, during cross examination that the

mandate was drafted by a certain Mrs Riley at the NEF. It

was also put to Ruiters that Riley was not only involved in

drafting the mandate but that she had queried the particular

and relevant clause in the mandate. It was further put to

Ruiters that it was upon his instruction that Riley had to keep

the relevant section in the mandate.

8.6 For similar reasons the State failed to call Riley as a witness.

It was submitted that the failure by the State to call such a

witness was also indicative of the fact that Ruiters would have

been contradicted. It was further submitted that a negative

inference should also have been drawn in this regard.

5 S v Texeira 1980 (3) SA 705 (A)

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8.7 The Trial Court and the Court of Appeal ignored the failure by

the State to call these witnesses and failed to draw such a

negative inference when it was clearly called for. I had given

evidence of the context and I explained how the transactions

came about. Ignoring my evidence in how the transactions

came about and the fact that two witnesses would contradict

the evidence of Ruiters, is to misconceive that a negative is

not to be drawn in such circumstances. There was no basis in

fact or law for ignoring the fact that the State failed to call

these witnesses. It was argued and I submit indeed proven

by the evidence that the probabilities exist that Ruiters was

indeed aware of the terms of the mandate.

8.8 The acceptance of the evidence of Ruiters was subject to the

question whether his evidence, being a single witness, was

satisfactorily in all material respects. Here, there were

contradictions in his evidence, a clear indication that

witnesses exist who would contradict his evidence and who

were not called by the State. These contradictions and

negative inference that should have been drawn of the failure

to call the witnesses adversely affect the credibility of the

evidence by the single witness.

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8.9 The Court of Appeal rejected my evidence solely based upon

the improbabilities that were found. I am advised that it is trite

law that probabilities and improbabilities can only be deducted

from acceptable facts. It is in this regard that it is submitted

that my evidence can only be considered improbable if the

facts adduced by the State are accepted beyond reasonable

doubt.

8.10 The SCA6 in similar circumstances, has held the following:

“The correct approach is to weigh up all the elements

which point towards the guilt of the accused against all

those which are indicative of his innocence, taking

proper account of inherent strengths and weaknesses,

probabilities and improbabilities on both sides and

having done so, to decide whether the balance weighs

so heavily in favour of the State as to exclude any

reasonable doubt about the accused’s guilt. The result

may prove that one scrap of evidence or one defect in

the case for either party (such as the failure to call a

material witness concerning an identity parade) was

decisive but that can only be an ex post facto

6 S v Chabalala 2003 (1) SACR 134 SCA at page 140, para 15

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determination and the Trial Court (and counsel) should

avoid the temptation to latch onto one (apparently)

obvious aspect without assessing it in the context of

the full picture presented in evidence. Once that

approach is applied to the evidence in the present

matter the solution becomes clear.”

8.11 The conclusion is that the State by calling only a single

witness has not proved its case beyond reasonable doubt. It is

therefore submitted that there is a reasonable prospect that

another Court might reject the evidence given by Ruiters

based upon the contradictions and the negative inference to

be drawn from the failure to call the witnesses.

9. AD SENTENCE:

9.1 From a cursory reading of both the judgments of the Trial

Court and the Court of Appeal it is clear that deterrence and

retribution were the main aims of the imposed sentence. Both

the Courts focussed on retribution. Both the Courts failed to

appreciate that the modern approach is to shift away from

retribution as an element and to focus more on rehabilitation.

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9.2 It was wrong to hold that correctional supervision in terms of

Section 276(1)(h) of the Criminal Procedure Act would be an

inappropriate sentence. It would seem that both Courts were

more concerned with sending the correct message than with

applying the correct approach to correctional supervision.

9.3 The evidence in mitigation clearly indicates that I am no threat

to society. I am a first offender and that society could be

better served by providing community services than to be

incarcerated. Ignoring the fact that I am no threat to society

both the Courts failed to appreciate the fact that I need not to

be removed from society by means of imprisonment. The

Courts therefore failed to correctly apply the provisions of

correctional supervision as an alternative to imprisonment.

9.4 Furthermore, none of the funds transferred to my account

were utilised by myself. My evidence that I had caused the

money to be recovered was uncontested and unchallenged by

the State. There was therefore no basis in fact or law for

ignoring this evidence and should have been accepted by the

Court.

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9.5 In the circumstances 10 years’ imprisonment is excessive.

The fact that half of the term was suspended does not alter

the fact that even a suspended sentence of imprisonment is

nonetheless a sentence of imprisonment.

9.6 I am advised that the sentence in this instance is indeed an

example of sacrificing an offender on the altar of deterrence.

9.7 In the light of the fact that the Trial Court and the Court of

Appeal, despite the discrepancies in the State case, accepted

the evidence of a single witness as proof beyond reasonable

doubt, and ignoring the other elements in sentencing I am

advised that another Court might come to a different

conclusion.

9.8 Based upon this premise I request the Honourable Court to

grant me leave to appeal against the convictions and the

sentence as indicated in the notice of motion.

______________ SIDNEY MAREE

DEPONENT

THUS SWORN AND SIGNED ON THIS DAY OF 2010

BEFORE ME COMMISSIONER OF OATHS, THE

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DEPONENT HAVING ACKNOWLEDGED THAT HE/SHE

UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT, HAS NO

OBJECTION IN TAKING THE OATH AND REGARDS THE OATH AS

BINDING ON HIS/HER CONSCIENCE AFTER COMPLYING WITH THE

REQUIREMENTS OF GOVERNMENT NOTICE R1258, DATED 21 JULY

1972, AS AMENDED.

Before me:

________________________ COMMISSIONER OF OATHS

NAME:

CAPACITY:

ADDRESS: