Rajah and Another v S

In October 2010, Good Hope Plasterers CC (Second Appellant) contracted with the Department of Public Works (DPW) to renovate parliamentary buildings. The First Appellant, Ridwaan Rajah, was the sole member. The Second Appellant subcontracted Winlite Aluminium Windows and Doors to install curtain screens. Due to delays and an anticipated price increase, the DPW agreed to an advance payment of R519,037.90 for materials to be held offsite by Winlite, secured by a guarantee. The DPW paid the Second Appellant, who paid Winlite R467,131.11, retaining 10%. After Winlite's work was rejected and it was liquidated, the DPW unsuccessfully claimed the guarantee and omitted the advance payment from the final account. The Second Appellant obtained a High Court order in 2015 compelling the DPW to include the amount, which was paid. A Special Investigating Unit investigation led to criminal charges. The Appellants were acquitted on a fraud count but convicted on a stand-alone theft count (count 2) and the First Appellant on perjury (count 3) by the Regional Court. The Appellants appealed.

• Whether the State proved beyond reasonable doubt that the Appellants committed theft of R519,037.90 (count 2).
• Whether the First Appellant committed perjury by making false statements in an affidavit (count 3).
• Whether the charges amounted to impermissible splitting of charges/duplication of convictions.
• Whether the Regional Court materially misdirected itself on findings of fact and credibility, including the rejection of the Appellants' version as false.
• Whether the State’s failure to call key witnesses (e.g., DPW head of projects) was fatal to the prosecution.

The appeal is upheld. The convictions and sentence on counts 2 and 3 are set aside.

An accused cannot be convicted of a crime the State has failed to prove beyond reasonable doubt; where the State concedes it cannot prove the full ambit of a charge, a conviction on that charge is a material misdirection. A conviction for perjury requires proof of mens rea to make a false statement intentionally, not merely negligently; where the accused provides a reasonably possibly true explanation for errors in an affidavit, the State has not discharged its onus.

The Court observed that legal practitioners drafting court papers must shoulder some of the blame for incorrect factual averments in affidavits, but that does not equate to criminal intent on the part of the deponent. The Court also noted that the State's failure to call the DPW's head of projects or other key personnel was a critical omission that undermined its case.

The case illustrates the importance of the State proving the exact charge as formulated in the charge sheet, the consequences of failing to call material witnesses, and the application of the rules against splitting of charges. It also clarifies the distinction between negligent drafting errors and intentional misrepresentation in perjury cases in the context of construction contract disputes.