SOUTH Gauteng High Court Acting Judge Samuel Makamu has been reported to the Judicial Services Commission (JSC) for dishonesty in his findings in the judgment against tax fraud accused Maxwell Mavudzi.
Makamu has been accused of making false representations that he wrote a judgment while he did not.
The said judgment was made on November 13, 2023.
Mavudzi, a lawyer-turned-businessman, has been accused of being part of a scam that defrauded the South African Revenue Services (Sars) of more than R100 million in claimed tax returns using his dead wife’s particulars.
He was accused alongside 12 other co-accused, including former ANC councillor Thabile Octavia Nkosi.
The 13 faced 391 counts of fraud after Sars alleged that they claimed and got paid for tax returns that were not due to their companies.
In an affidavit signed on June 24 this year, Ralinah Maepa said Makamu made false representations following his remarks that he was not going to dwell on this trial within a trial as he wrote a comprehensive judgment where he held that it was real evidence as it was mirror images from the devices.
Makamu added that the State could not talk about the truthfulness of the data as it was only extract or photos taken from devices.
He continued that the State could not call the accused to testify as their witnesses in regard to the truthfulness of the data hence they just took mirror images instead of downloading it. Makamu said these were documents that the accused were alleged to be authors of the data concerned.
However, Maepa said these assertions were false and a misrepresentation of the truth and Makamu did not write the alleged comprehensive judgment.
Asked if Makamu was aware of the complaint to the JSC, the Office of the Chief Justice (OCJ) said he was not aware of the alleged complaint.
Meanwhile, Dimakatso Ramaisa, the secretariat of the Judicial Conduct Committee (JCC), acknowledged receipt of the complaint, adding that it would be forwarded to the JCC for consideration. She said Maepa would be notified of the outcome of the complaint in due course.
Maepa said Makamu’s assertions were not an innocent mistake because the criminal trial started in July 2018 and in August 2019, Mavudzi objected to the admission of certain data messages into evidence. She said having heard legal arguments on the matter, Makamu delivered the “ex tempore” ruling on September 2, 2019.
She said Makamu made the following remarks on the ruling: “I think that has been eroded by the counsel who visited me this morning in my chambers and because I do not even have my notes with me. I am not going to give a long ruling the reasons for the ruling of today will be in the body of the full judgment that will be delivered at the end of the trial.”
Makamu explained that what was contested was whether the evidence the witness was going to tender would be regarded as documentary evidence or is going to be real evidence, adding that he did not know what the witness was going to tell the court.
“And in that regard, one has to realise that the kind of evidence falls within the documentary evidence or it can be real evidence, it can only be documentary evidence if there is a possibility that there has been interference or manipulation or alteration of the original text or evidence.
“So as such in the meantime, I will rule that this will be real evidence and the full reasons will come with the main judgment. Like I did in the past with some other interlocutory kind of judgments, when everything has been observed and evaluated then the court may revisit the decision that was taken during the interlocutory. So in this matter after hearing the actual evidence and seeing exactly what this witness is coming to testify about ... When we give judgment at the end of the day it will be incorporated and it will be made clear what it is.”
Maepa said the witness was allowed to continue with his evidence, and later that day Mavudzi again objected to the witness continuing to testify about the data messages.
She said the basis of his objection was that contrary to what the State had initially informed the court, it was clear that the witness was tendering the data messages for the truthfulness of their contents.
She said after having heard further arguments on the objects, Makamu delivered the second interlocutory “ex tempore” ruling and dismissed Mavudzi’s objection.
Maepa said Mavudzi brought an application against Makamu to consider recusing himself in December 2020, and Makamu, after the arguments, delivered a written judgment in which he also addressed the question of the admissibility of the contested data.
Mavudzi also brought an application for his discharge in terms of section 174 of the Criminal Procedure Act 51 of 1977. Among other issues he raised was the fact that Makamu never made a final decision regarding the admissibility of the data messages.
Makamu dismissed the application and stood by his previous interlocutory decision.
Maepa, at the end of the trial in August 2023, said Mavudzi submitted his closing arguments calling for acquittal and addressed the issue of Makamu failing to deliver his final decision on the admissibility of the data evidence prior to the closure of the State case.
“Thus, immediately prior to the learned judge writing his judgment in which he made false statements that are the subject of this complaint, he had been reminded on two occasions that he did not make any final decision regarding the admission of the contested data messages.
“This was over and above the three occasions, he was invited to do so during the course of the trial and had resulted in the three interlocutories he made,” said Maepa, adding that Makamu’s attention was equally to his previous decisions in which he clearly stated that he would revisit the provisional admission of the data messages and give his reasons when he delivered his final judgment.
She said Makamu made false representations regarding his non-existent judgment in order to find a basis to rely on the equally non-existent data evidence to convict Mavudzi.
Meanwhile, has brought an urgent application to the Constitutional Court with regard to the implicated misrepresentations.
manyane.manyane@inl.co.za