Bathandwa Bazukile Ndyamarha and Ndyamarha Trading Close Corporation v The State

The first appellant was the sole member of the second appellant, a close corporation operating what he described as a ‘virtual bed and breakfast’. Through a procurement chain involving Siyawela Travelling CC and the Eastern Cape Department of Education (ECDoE), the appellants received payments totalling R2 001 500.00 for student accommodation. The evidence showed that the purported guest houses (Bay Lodge, Fairview Lodge and Royal Lodge) existed in name only and that no accommodation was ever provided. The first appellant claimed to have outsourced accommodation to an alleged ECDoE official, Mr Rhaji, who could not be traced and was never employed by the ECDoE. The first appellant conceded under cross-examination that he had no lawful entitlement to the monies paid. The Regional Court convicted the appellants on four alternative counts of theft, and leave to appeal against conviction only was granted.

The appeal against conviction was dismissed and the convictions on four counts of theft were confirmed.

The case reinforces the distinction in South African criminal law between theft and breach of contract, confirming that receipt and retention of money without entitlement, coupled with dishonest intent, may constitute theft even where transactions are cloaked in contractual form. It also reaffirms appellate principles limiting interference with trial court findings of fact.