S v MARINGA AND ANOTHER 2015 (2) SACR 629 (SCA)
Indictment and charge — Joinder of accused — Participants in scheme to commit fraud — Purpose of provisions to avoid multiplicity of trials where number of accused — Evidence that needed to be led would prove existence of grand scheme to defraud municipality, even though some accused were not charged with all counts of fraud — State would suffer prejudice if compelled to have separate trial — Joinder competent — Criminal Procedure Act 51 of 1977, ss 155 and 156.
The two appellants were two of seven accused facing trial in a regional court on a total of 399 charges, including fraud, forgery, uttering and corruption. The first appellant was charged with all the counts, barring those related to the corruption charges, while the second appellant was charged with only 34 counts of fraud. The appellants objected to being tried together with the other accused, on the basis that this was contrary to ss 155 and 156 of the Criminal Procedure Act 51 of 1977, as they did not all face the same charges. The offences were all committed within a period of two months and were therefore committed at about the same time and place, and were in furtherance of a common purpose designed to fraudulently sell property belonging to the Johannesburg Metropolitan Municipality and to transfer those properties to buyers, in order for the accused to collect the proceeds of those sales. In order to successfully effect such transfers it was necessary for officials in Sars and the Deeds Office to cooperate in the furtherance of the common purpose. The officials were bribed and therefore the corruption charges were part and parcel of the overall design of the scheme. There was a whole mosaic of evidence that was necessary to prove the scheme, as well as the participation of the various accused in its different facets. It was contended on behalf of the appellants that they would suffer prejudice by having to sit through the whole trial while evidence would be presented that would not involve the charges which they faced.
Held, that the purpose of ss 155 and 156 was to avoid a multiplicity of trials where there were a number of accused and where essentially the same evidence on behalf of the prosecution was led on charges faced by all the accused, and thereby avoid prejudice to both the accused and the prosecution.
Held, further, that the prejudice that the appellants would allegedly suffer was exaggerated, in that the corruption and other charges were but a part of the scheme that would be proved. On the other hand, if separation were ordered, the state would suffer prejudice, in that it would have to have three separate trials with the same witnesses who would have to testify about the same facts. This was 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 was, in the greater scheme of things, minimal. The magistrate had exercised his discretion in refusing a separation and there was no indication that such discretion had not been exercised judiciously, and the appeal accordingly had to be dismissed.