High Court frees man after ruling State relied on inadmissible bank evidence in R2.95m case

The Mpumalanga High Court has overturned the conviction and jail sentence of a man previously found guilty in relation to the disappearance of R2.95 million intended for a community project, ruling that key banking evidence was inadmissible.

What the court found

The High Court upheld an appeal by Jacob Zenezele Mncwango, who had been convicted by the Mbombela Regional Court in January 2023 on an alternative theft charge and one count of money laundering arising from funds meant for the Endloveni Community Project Association.

The court found that the affidavit the State relied on to introduce banking records did not comply with legal requirements and therefore could not be regarded as a valid affidavit for purposes of Section 236. The judges identified several defects, including the failure by the commissioner of oaths to properly complete mandatory information such as the date the oath was administered and identifying details of the commissioner.

“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 held.

Why the affidavit mattered

Because the affidavit was defective, the banking records it introduced should not have been admitted as prima facie proof. The court said that without a valid affidavit and without viva voce testimony from a bank official to verify the records, the evidence linking Mncwango to the alleged theft and money laundering amounted to inadmissible hearsay.

Weaknesses in the State’s case highlighted

The High Court noted a number of weaknesses in the prosecution’s case that affected the link between the accused and the missing funds:

• The R2.95 million grant was paid into the account of Sadia Enterprises Trading CC, a company controlled by co-accused Thandi Mildred Mndawe, rather than to the Endloveni community directly.
• Substantial portions of the money were alleged to have been transferred to JM Mncwango Trading CC, a close corporation of which Mncwango was the sole member.
• Investigating officer Sergeant N.R. Bhiya conceded that the money was not paid into Mncwango’s personal account and that the bank statements reflected transactions involving the close corporation rather than the appellant personally.
• There was no evidence before the court that funds were transferred from the close corporation’s account into Mncwango’s personal account.
• State witnesses testified that they had never dealt directly with Mncwango and that the Department had not paid money to him personally.

Procedural errors in the Regional Court

The appeal court also criticised procedural irregularities in the Regional Court’s judgment. The magistrate did not formally pronounce verdicts on the main fraud charge and on one of the money laundering counts. While the High Court accepted that the magistrate had intended to acquit Mncwango on the fraud count after convicting him on the alternative theft charge, it found no clear explanation for the omission relating to the second money laundering count.

Outcome

The High Court set aside the convictions, upheld the appeal, and ordered that Mncwango be found not guilty and discharged on the main fraud count and the second money laundering charge.

The court emphasised the need for clear and final verdicts in criminal proceedings, noting that an accused person’s constitutional right to a fair trial requires courts to pronounce their decisions with certainty and provide adequate reasons.