- The High Court overturned Jacob Zenezele Mncwango’s convictions for theft and money laundering.
- The court found that crucial bank records were admitted based on a defective affidavit that failed to comply with legal requirements.
- It also ruled that Mncwango should be acquitted on the fraud charge and a second money laundering charge that the trial court failed to properly decide.
A man sentenced to prison in connection with the disappearance of R2.95 million intended for the development of the Endloveni community has successfully overturned his convictions in the High Court in Mbombela.
Jacob Zenezele Mncwango had been convicted in the Regional Court on charges of theft and money laundering and sentenced to an effective 10 years' imprisonment, with part of the sentence suspended. He appealed both his convictions and sentence.
The case centred on funds allocated by the Department of Rural Development and Land Affairs for development projects in the Endloveni community. Prosecutors alleged that the money was paid to a service provider, Sadia Enterprises Trading CC, for services that were never delivered. Large portions of the funds were later transferred into the bank account of JM Mncwango Trading CC.
The State argued that Mncwango, as the sole member of the close corporation, was involved in the unlawful movement of the money.
Defective affidavit undermined the State's case
Judge L Vukeya, with Acting Judge P Venter concurring, found that the State's case depended heavily on bank records introduced through a section 236 affidavit.
The court examined the affidavit and found several defects. The commissioner of oaths failed to properly complete key details, including identifying the deponent, recording the date the oath was administered and providing sufficient information about himself.
Judge Vukeya found that there was no substantial compliance with the regulations governing affidavits. The court said, "In essence, there was no substantial compliance with the requirements of the above Regulations and the effect of this is that there was no affidavit in terms of section 236."
Because of those defects, the bank records remained hearsay evidence and should not have been admitted without direct testimony from the relevant bank official.
Judge Vukeya said, "The evidence convicting the appellant of Theft and Money Laundering was based on hearsay evidence from Sgt Bhiya and documents that should not have been admitted unless viva voce evidence was led."
The court concluded that the convictions could not stand because the theft and money laundering charges were closely linked to the disputed bank evidence.
The trial court failed to deliver complete verdicts
The appeal court also criticised the Regional Court for failing to properly pronounce verdicts on all charges.
Mncwango had faced a main charge of fraud with theft as an alternative count, as well as two money laundering charges. The Regional Court convicted him of theft but never formally acquitted him on the fraud charge. It also failed to properly deliver a verdict on one of the money laundering counts.
Judge Vukeya emphasised that courts have a duty to clearly and finally determine every charge before them.
The judgment noted, "It is a fundamental duty of a presiding officer to deliver a judgment and verdict on the record."
The court found that Mncwango should have been acquitted on the fraud charge and the second money laundering count.
Judge Vukeya added that the accused person's rights are protected when courts clearly pronounce verdicts and provide reasons for their decisions.
The appeal was upheld. The convictions for theft and money laundering were set aside, and Mncwango was acquitted on the remaining charges.
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