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Fanoe and Another v S (CA&R 9/2009) [2011] ZAECGHC 70 (30 June 2011)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE-GRAHAMSTOWN)



CASE NO: CA&R 9/2009

Date heard: 30 March 2011

Date delivered: 30 June 2011

In the matter between:



ESTER FANOE ….......................................................................FIRST APPELLANT

RAYMOND KUMM ….............................................................SECOND APPELLANT



vs



THE STATE …....................................................................................RESPONDENT



______________________________________________________________



JUDGMENT



______________________________________________________________



MAJEKE AJ:



[1] The two appellants were convicted of fraud in the Regional Court. With the leave of the trial court the appeal is directed against the conviction of each of the appellants.



[2] The salient facts of the case are that on or about the 9th May 2001, appellants, between the consulting rooms of Dr Le Roux, Medicross, Berea, East London, and the consulting rooms of Dr Du Buisson & Partners at Medical Centre, East London, falsely and with intent to defraud made a false representation that the blood samples they submitted to Dr Du Buisson & Partners to determine paternity of the child Roche born of a relationship between Anna Magdelene Van Lingen and second appellant was drawn from the second appellant whereas it was the blood of the first appellant.



[3] The court then called ten witnesses and in addition several documents were submitted as exhibits. Anna Van Lingen testified that out of a relationship she had with the second appellant a child by the name of Roche (the child) was born in 1993. Between the years 1993 to 2000, the second appellant paid maintenance for the child. He suddenly stopped. She instituted a maintenance claim against the second appellant who disputed paternity. Subsequent blood tests to determine paternity were conducted and the second appellant was confirmed to be the father of the child. Despite the outcome of the paternity test, the second appellant once more denied paternity. The court ruled that a second test be conducted in Cape Town. Unexpectedly the complainant received a call from the second appellant advising that blood samples would be taken at Medicross in East London.

[4] On the 9th May 2001, complainant, the child and second appellant (the parties) went to Dr Le Roux’s surgery at Medicross. The first appellant was also present. The first appellant justified her presence on the grounds that she had a court order authorising her to collect the blood samples from Medicross Clinic and transport them to Dr Du Buisson’s laboratory. The complainant was very much concerned by the presence of the first appellant more so that she had participated in a similar exercise before without the presence of another person. Blood was drawn from the complainant, the child and the second appellant. Of great concern to the complainant, was the fact that the tests tubes into which blood was extracted were not labelled before they were put in separate envelops. Each separate envelop was signed on the sealed flap by the doctor, the nurse who drew the blood samples and each party (except the child). The complainant also testified that at the time the blood samples were taken at Medicross Clinic, the two appellants were in a relationship that started a few moths before the second appellant stopped paying maintenance.



[5] From Medicross Clinic the appellants drove together in one vehicle to the laboratory of Dr Du Buisson & Partners. At the pathology laboratory, the envelopes were opened and names put on the unlabelled test tubes. The envelopes did not appear to have been tempered with. The results came out excluding the second appellant as the father of the child. The complainant contacted the doctor concerned and enquired how the results recorded a negative outcome. As a result of the information the complainant received, she went to lay a charge of fraud against the appellants.

[6] The maintenance officer ordered that further blood samples be taken so that further tests could be conducted.



[7] Joan Esme Mountford testified that on the 9th May 2001 she was the sister-in-charge at Medicross Clinic. She was called after blood had been drawn from the parties in order to witness on the envelope wherein blood samples were put.



[8] She was informed that the test tubes into which the blood samples were drawn were not labelled. This, was of great concern to her, more so that ordinarily paternity tests are not conducted at Medicross Clinic.



[9] She also enquired from Dr Du Buisson’s laboratory how they intended collecting the samples and she was advised that the first appellant was to transport the samples and had a court order to do so. She did not see the court order. The normal practice is that if blood is drawn for any purpose the test tubes are labelled whilst the patient is present and are further not placed into sealed envelopes. Furthermore, the blood samples are collected by the laboratory concerned. She phoned the laboratory and alerted them that they were about to receive blood samples with unlabelled tubes.



[10] Lynelle Mavis da Silva is a nurse who is employed as a phlebotomist at Dr Du Buisson & Partners pathology laboratory.



[11] She testified that on an earlier occasion the first appellant came to the laboratory and asked questions about paternity testing and the procedure followed.



[12] She gave the first appellant full details of how the process is conducted. She also informed the first appellant about how the test tubes with blood samples are labelled. First appellant informed her on or before the 9th May 2001, that she had a court order in terms of which blood samples had to be drawn from the parties at Dr Le Roux’s rooms in Medicross Clinic after which she was to take the samples to the laboratory.



[13] Based on that information, she gave the first appellant six test tubes. On the same day the first appellant came back and asked for two more test tubes to replace two which she claimed had been broken.



[14] She testified that she received a phone call from Mrs Mountford from Medicross Clinic who expressed concern about the blood samples that were not labelled.



[15] After the telephone discussion with Mrs Mountford, the complainant, the child and the second appellant arrived at the laboratory. They gave her an envelope. She opened it and found three envelopes which were sealed and signed. She verified each envelope and labelled each test tube.



[16] Nurse da Silva retained one of each patient’s two blood samples at the pathology laboratory and the second one was forwarded to Dr Marx of Unistel for paternity determination.



[17] Dr Anton Louis Le Roux is a registered medical practitioner apparently a personal doctor of the second appellant. He testified that he was approached by the latter who requested him to avail his facilities at Medicross Clinic for purposes of drawing blood for his private exercise. The second appellant assured him that the exercise would have no legal consequences.



[18] Dr Le Roux agreed and blood samples were drawn. He thereafter signed the sealed envelopes and certain documentation. He could not confirm whether the labelling of the test tubes was done but admitted each test tube ought to have been labelled.



[19] Caroline Margaret Hayward testified that she was employed as a staff nurse at Medicross Clinic. On the 9th May 2001 she was at work when approached by the first appellant who informed her that she was in possession of a court order requiring that blood be drawn for a paternity test at Medicross Clinic as the process could not be performed in other centres due to the urgency of the matter.



[20] The first appellant handed her three envelopes each containing two test tubes. She informed the first appellant that blood samples had to be obtained from the complainant, the child and the second appellant but the test tubes should remain unmarked. The instructions were most unusual and contrary to the established procedure but she agreed to assist in particular because she had been advised by the first appellant that she had a court order and that nursing-sister Mountford had given permission for the drawing of the blood samples. However, she did not see the court order”. She drew the blood from the parties and placed the blood samples in their separate envelopes and each envelope was sealed in the presence of the first appellant. After the envelopes were sealed, nursing-sister Mountford arrived and expressed her displeasure when she heard that the test tubes were not labelled. At all material times, the blood samples were not left unattended.



[21] Roeloff Titus testified that he was employed as a receiving clerk at Unistel and was on duty on the 22nd May 2001. He confirmed receiving the blood samples that were sent from the Medical Centre, East London by da Silva. As a precautionary measure samples are received and opened in the presence of two people. Strict control measures are exercised to ensure that all packets and envelopes do not bear signs of tempering. Numbers and names where applicable are checked and must correspond in all instances to obviate corruption of the end result.



[22] Dr Munro Peter Marx testified that he is managing director of Unistel, the Commercial Human Genetic Laboratory attached to the University of Stellenbosch and that he has 20 years experience in DNA related analysis. He testified that since 1998 they have conducted approximately 124 000 blood analysis under very strict control measures to ensure the reliability of the results. He testified further that Unistel laboratory completed a paternity test during January 2001 from samples received from Mulligan & Partners and the result indicated with a probability of 99.99989 per cent that the second appellant was the father of the child concerned.



[23] Again during May 2001 another set of blood samples was received from Dr Du Buisson & Partners. The samples were examined using the same procedure followed in January 2001 and the result showed that the alleged father of the child was excluded. When the May samples were examined he was not aware that they were supposed to represent samples of the same people who were involved in the January 2001 paternity test. There was no way he could have detected any relationship between the two tests nor could it have happened that the samples were swopped as they were 4000 apart. Unistel was alerted of the discrepancy and conflicting result of the two paternity tests by the complainant.



[24] He re-examined the raw material and documentation and in the process discovered that the blood samples of the alleged father contained two x chromosomes instead of an x and y chromosomes thus indicating that the sample was of a female not a male person.



[25] He concluded that the sample labelled Kumm in both January and May 2001 tests did not come from the same person. When he became aware that the first appellant had taken charge of the blood samples at Medicross Clinic he requested a blood sample from her to compare it with the female DNA profile obtained in the sample in order to eliminate tempering by those involved.



[26] Unistel was requested to provide DNA samples on which they performed their tests to an independent laboratory and they forwarded same to Dr Andre De Kock at the University of Free State’s Medical School.



[27] Brenda Isable Stander, additional magistrate, attached to the maintenance section of East London Magistrate’s Court testified that she presided over the maintenance inquiry which dealt with the paternity and maintenance issues between the second appellant and the complainant. She never issued an order allowing the first appellant to become involved in the process of drawing of blood samples or to transport the said blood samples. The order she gave was to instruct first appellant to have fresh blood sample drawn from her and this was after the dispute about the female blood had arisen.



[28] Dr Andre De Kock testified that he lectures in Haematology and Immunology and is jointly employed by the Free State University and the National Health Laboratory Services and that he did receive from Unistel, the raw data for the blood samples received on 26 January 2001 and 22 May 2001 for two paternity tests.



[29] He found that the blood sample of the supposed father was of female origin. Fresh blood samples of all the parties were provided. He also received additional samples that were sent to him in crime kits of Kumm, Fanoe (i.e. the second appellant and the first appellant) and the child.



[30] He ran a series of test and concluded that the second appellant cannot be excluded as a biological father of the child, that the samples tested by Unistel during May testing were those of the complainant, the first appellant and not the second appellant. He also confirmed that he ran the tests according to the standards used by Unistel except that he used 16 markers and a sex marker compared to the 8 markers used by Unistel four years earlier.



[31] Inspector Johan Hendrick Van Jaarsveld testified that he works for the South African Police Service and is stationed in East London and investigated the matter at a certain stage. He was present on the 5th August 2005 when nursing-sister Phillips drew blood from the appellants, sealed the blood samples in their presence. The blood samples were at all times under proper care and were safely guarded. He took the blood samples himself to Bloemfontein and handed same to Dr De Kock. He followed the same procedure in relation to the blood sample of the child which was drawn on the 11th October 2005. A number of exhibits were admitted though some had little relevance to the case.



[32] The state closed its case and the two appellants decided not to give evidence and did not call witnesses. Both the state and the defence argued for and against conviction and the trial magistrate convicted the appellants on count 1 i.e. fraud.



[33] The appellants are appealing against conviction only. Appellant in support of their appeal argued that the state witnesses testified that they did not witness any tempering with the blood samples and in the absence of proof that the samples were tempered with, the state failed to prove the guilt of the appellants beyond reasonable doubt and it was further argued that if the evidence relating to the non-tempering of the blood samples is accepted all other evidence should fall away or be weighed with serious doubt.



[34] Mr Schoeman, counsel for the appellants, argued that the test ran by Unistel was inconclusive due to the standard employed at the time, namely the eight marker system alluded to by Dr De Kock.



[35] The trial magistrate adequately dealt with the submissions made on behalf of the appellants and we are in agreement with the reasoning of the court a quo in respect thereof.



[36] The state did not submit evidence proving a direct act of tempering on the part of the appellants. It relied on circumstantial evidence out of which certain inferences were drawn. The state can discharge the burden of proof by relying on the circumstantial evidence provided.1



(i) the inference which the state pleads is consistent with all the proved facts; and



  1. no other reasonable inference can be drawn from those facts.”



[37] It is apposite to refer to what was said by Lord Wright in Caswell v Powell Duffryn Ass. Collieries Ltd.2



Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish . . . But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”



[38] To suggest that the appellants should have been acquitted on the strength of the evidence of nursing-sister Haywood, Mountford and Da Silva because they did not see any tempering would amount of looking at the evidence in a piecemeal manner. Before reaching a verdict a court has to consider all the evidence before it, weigh its cumulative effect and decide if it points to the guilt or otherwise of the accused. In S v Snyman, Holmes J said:



I see no reason for holding that the magistrate in this case was obliged to apply a piecemeal process of reasoning. In my view he was entitled in deciding whether the complainant’s imputation of paternity to the appellant could be believed, to consider the totality of the fact, including the fact that there was no gainsaying evidence from the appellant.”3



[39] Such cumulative effect of the evidence must form a network so coherent in its texture that the appellants cannot break through it.”4 There is no doubt that the first appellant orchestrated the process leading to the drawing of blood samples on the 9th May 2001 in order to misrepresent the true paternity of he child. Her initial step was to obtain sufficient information from nursing-sister da Silva of the pathology laboratory on how the paternity procedure worked. She falsely procured two additional tubes for blood samples under the pretext that the other two were broken.



[40] The first appellant took full control of the manner the blood samples were obtained at Medicross Clinic by falsely misrepresenting to the staff that she had been authorised by the court to have the blood drawn at Dr Le Roux’s rooms on an urgent basis and that the test tubes containing blood samples had to be left unmarked. She further misrepresented to the staff at Medicross Clinic that in terms of the court order” she was the person authorised to transport and deliver the samples to the pathology laboratories of Dr Du Buisson & Partners.



[41] Appellants travelling together in one vehicle transported and delivered the blood samples of the parties concerned from Medicross Clinic to the pathology laboratories of Dr Du Buisson & Partners. Between Medicross Clinic and Dr Du Buisson’s laboratory the appellants had an opportunity to swap the blood sample of the second appellant and substitute it with that of the first appellant. It must be remembered that the first appellant was in possession of two additional test tubes. The evidence presented by the staff members at Medicross Clinic is such that tempering with the blood samples did not occur in their presence. If is a fact that there was tempering with the blood because the blood of the first appellant was found in the samples provided. It is therefore, inextricably true that the tempering occurred at the time the blood samples were taken to the laboratory if one has regard to the totality of the evidence.



[42] This reference is even fortified by the evidence of Dr Marx and Titus who testified that the blood samples were received in accordance with the strict procedure tailor-made to guard against tempering. They were sealed and had not been tempered with.



[43] In the light of the above no other inference can be drawn other than that the tempering occurred between Medicross Clinic and the laboratories of Dr Du Buisson & Partners.



[44] Such an inference is strengthened by other proven facts for example that the purported blood sample of the second appellant which was tested in May 2001 was of a female origin and further subsequent and credible tests conducted by Dr De Kock positively proved that indeed it was the blood of the first appellant when compared with her blood sample that was sent by the police to him.

[45] It is also noteworthy that the appellants failed to testify and chose to close their case. Basically there is nothing wrong with that approach as it is in line with Section 35 of the Constitution. It is trite law that the accused had no onus to prove his innocence. The state bears the onus of proof throughout the proceedings. In Olifant v Shield Insurance Co, Grosskopf J said:



In these circumstances I consider that his failure to give evidence serves to provide some positive support for the plaintiff’s case. This does not of course mean that there is any shifting of the onus of proof, which remains on the plaintiff throughout.” 5



[46] In the absence of evidence rebutting the state’s version, I am unable to do otherwise than accepting its evidence which leads to one inference that the first appellant fraudulently interfered with the blood samples.



[47] The appellants further argued that the blood samples used in the second test were obtained in breach of standard protocols and as such no reliance could be placed on their results. This argument is flawed in that there is no evidence that the staff at Medicross Clinic deliberately failed to observe the necessary protocols. Nursing-sister da Silva and the staff at Unistel did observe the necessary protocols as outlined by Dr Marx and the same approach was followed by Dr Kock at Bloemfontein.



[48] The only person whose conduct and behaviour caused certain breaches of protocol is the first appellant whose acts of misrepresentation provided her with a clear opportunity to temper with the blood samples. On the day blood was extracted from the parties, the blood of the first appellant was not drawn either at Medicross Clinic or at the laboratory.



[49] The role played by the second appellant in the commission of the crime of fraud is not as clear cut compared to what the first appellant did.



[50] There are a number of indicators pointing towards complicity on his part in that after paying maintenance for the child for a number of years, he suddenly stopped without any tangible reasons. He is the one who approached and persuaded Dr Le Roux to avail his rooms at Medicross Clinic to facilitate drawing of blood samples. He misrepresented the true state of affairs by advising Dr Le Roux that the exercise was for private purposes and that there would be no legal consequences for himself or Medicross Clinic. The second appellant was in the company of the first appellant when the blood samples were transported to Dr Du Buisson’s laboratory and as such present when the swapping of the blood occurred. The behaviour of the second appellant creates a strong suspicion that he was acting in concert with the first appellant. However, there is insufficient evidence to prove his guilt beyond a reasonable doubt and consequently his appeal succeeds.



In the result, I would make the following order:



(a) The appeal against the first appellant is dismissed;

(b) The appeal against the second appellant succeeds.









______________________

P MAJEKE

ACTING JUDGE OF THE HIGH COURT



I agree and it is so ordered:





____________________

M MAKAULA

JUDGE OF THE HIGH COURT



Appearances:



For the appellants: Adv A D Schoeman instructed by Opperman Attorneys, PO Box 584, EAST LONDON



For the respondent: Adv D Els instructed by the Director of Public Prosecutions, High Street, GRAHAMSTOWN



1R v Blom 1939 AD 188

2 1940 AC 152, 1939 (3) ALL FER 722, 733

3 1968 (2) SA 582 A 589 f

4S v Reddy 1996 (2) SACR 1A

51980 (1) SA at 907 F-S