COUNT 13 - FRAUD

Rene Viljoen (‘Viljoen’), the complainant on count 13 testified, inter alia, as follows:

[a] She met the accused on facebook during 2011, after he requested a friend request, which she accepted. She observed on his facebook wall that he was selling shares in his photography and model studio. She duly sent him an enquiry and requested further information regarding the shareholding.

[b] The accused provided her with further information and advised her that the business was doing well and came across as very convincing. These representations piqued her interest further, which caused them to subsequently meet in Kempton Park, regarding their partnership. It was agreed that the company would be called R & D Modeling and Photography Studio. (1)

1. Transcript Page 404 Para 3 - Yes, madam. --- I sent him an inbox and requested more information regarding the shares. He became telling me and everything sounded very convincing. He told me how well the business was doing. We then agreed on a date to meet at his home in Kempton Park. Okay, madam, what was the name of this modelling and photography studio? --- R & D Modelling & Photography International.

Transcript Page 405 Para 1 - MS PERSAD:

Yes, madam you can continue. --- Before we met at his home we talked about the shares and the price. He told me it was R50 000 for 49 percent shares.

[c] They had several telephonic discussions, prior to the meeting. During these discussions she was told that a 49% share holding would cost her R 50 000,00 (fifty thousand rands). She then applied for a loan from her bank, which was subsequently granted. The accused continually pressurised her for the funds. (2) She stated that the accused flirted with her on BBM and during their numerous telephonic conversations. The accused continually pursued her, despite being told that she was currently involved in a relationship. (3)

2. Transcript Page 405 Para 1 Yes, madam and then? --- We discussed this for a while over the phone and I said I will go to the bank to see if I could secure a loan. In the interim I went to the bank where I made an application for a loan. He really pressed me for the money. He pressurised me for the money. He flirted a lot with me on BBM and over the phone.

3. Transcript Page 405 Para 2 & 3 He flirted a lot with me on BBM and over the phone. COURT: He what? --- He flirted. He flirted. --- Yes. On BBM and? --- Over the phone. Ja. --- At that time I was in a relationship with a detective from the Witbank Police Station. MS PERSAD: Yes. --- He then said to me that he thinks this thing was meant to be. COURT: Sorry, when you said: “he” who were you referring to? --- Excuse me? When you say: “he”? --- Dawie. What did Dawie say? --- Dawie said there is a reason why he and I met along the way. How him and I will fit together. I kept on saying to him that I am very happy in my relationship.

[d] The accused instructed her to deposit the amount of R 40 730,00 (forty thousand seven hundred and thirty rands) into an account in Cape Town, for the purchase of a camera. She thereafter met with the accused in Kempton Park to pay over the balance of the money to him, in cash. (4) She did not receive any receipt from the accused for these disbursements. She further stated that she did not have any documentary proof of the transactions, as the documents were destroyed when she moved house. (5)

4. Transcript Page 405 Para 1 - MS PERSAD: Madam, did you in fact get that loan? --- Yes. Then what happened? --- I got the loan. I informed him that I got the loan or rather

received the loan. He asked me to transfer the following amount R40 730 into an account of someone in Cape Town

5. Transcript Page 405 Para 1 Madam, do you have any document showing proof of payment? Unfortunately, I moved a lot in the interim and my ex got rid of everything.

[e] The accused had a contract that reflected the amount that was paid by this witness and it was further agreed that the accused would repay an amount of R 2500,00 (two thousand five hundred rands) each month into her account, as she was permanently employed. (6) Further, that the accused would run the business. She only received one instalment of R 2000,00 (two thousand rands) from the accused. The contract was handed in as Exhibit “O”. (7)

6. Transcript Page 407 Para 1 - Did you discuss the R50 000 loan that you took? --- Yes. What did you all discuss? --- Because I have permanent employment we verbally discussed that he would pay every month R2 500 into my account. That he would then run the business from his side.

7. Transcript Page 407 Para 1 - Did you receive any money from the accused? --- The first time I received R2 000. That was the first and the last payment I received

She wanted to refer the contract to her attorney for advice. However, the accused indicated to her that it was in order as it was drawn up by his attorney and that they should not waste time and commence immediately. Further, that the accused was very convincing. (8)

NOTES: ACCUSED

8. There was no evidence let by Rene where she said she want it to be referred to her attorney first, this was mentioned when Pienaar questioned her about why did she sign immediately. Cross-Examination Page 414 Para 2 - Now, if we go back to the agreement, you read through this agreement before you signed it. --- Yes. You had the opportunity to tell the accused that I want to maybe get an opinion on this or I want to maybe go to a lawyer or I want to think about it. But you were not compelled to sign there and then. You had the opportunity to make choices. --- I did ask if I can take it to a lawyer and he said to me that it has already been through his lawyer and that we needed to start the business as soon as possible to make money. He was very convincing.

[f] The accused further requested help from her for the purchase of a motor vehicle that would be branded in the name of the company. She informed him that she did not qualify for any further amounts and directed him to approach his parents, in this regard. The accused informed her that his parents had passed away. (9)

9. Transcript Page 407 Para 2 - Did you contact the accused further? --- Yes. Shortly thereafter he asked me if I could help him buy a motor vehicle and we would have branded the vehicle in the company’ name. I told him I managed to secure the loan and that I did not qualify for any more than that. I then asked him if he could perhaps ask his mom or dad for assistance and he told me his parents had passed on. Page 46

[g] She contacted the accused to enquire about the outstanding payments. The accused always had an excuse and a different story regarding these payments. As time went by, the witness began experiencing greater difficulty in getting hold of the accused. She continually demanded her money from the accused. The accused subsequently blocked her on BBM and refused to answer any of her telephone calls. The BBM exchange was handed in as Exhibit “P”. (10)

10. Transcript Page 407 Para 2 & 3 - Yes, madam, any other contact with the accused? --- After a while I then asked him when the other money was forthcoming and every time he had a different excuse. We then clashed on BBM and I told him I wanted my money with interest. Yes, madam, did you get your money? --- No. He was getting ugly and started to block me and deleting me from BBM and he also blocked me on WhatsApp. Did you correspond with the accused via Facebook? --- Only at the start. After he deleted me from BBM and blocked me on WhatsApp I sent him normal text messages. When I phoned him he cancelled the call.

She was blacklisted and made arrangements to repay an amount of R 200,00 – R 300,00 per month. She was still paying this amount as at the date of her testimony, with the outstanding balance being R 80 000,00 (eighty thousand rands). (11)

11. Transcript Page 408 Para 2 - Now, madam, this loan that you spoke about did you pay back the monthly instalments? --- Yes, after finding out what the debt amount was I started paying R200 to R300 monthly. I am still paying to date. So if I understand you correctly, was there a period when you were not paying? --- Yes. What is the present amount outstanding on that loan? About R80 000.

[h] It was verbally agreed that the accused would pay her the amount of R 2500,00 (two thousand five hundred rands), in order to repay the loan. (12) Further, that this status quo would continue until she was able to join him permanently in the business. It was further agreed that she would assist him on the weekends with photo shoots. (13)

12. Transcript Page 410 Para 2 - MS

PERSAD: Yes, M’Lord, that would be ExhibitP. Madam, do you know what the accused was talking about in that text? --- Meaning? Yes. What was he talking about? --- He was talking about my help in the business. But as we discussed verbally that I was like a silent partner because I was permanently employed with another company. That is why we agreed that for the first while he was going to pay R2 500 into my account for the loan to go off because I had to pay the loan back.

13. Cross-Examination Page 425 Para 4

- Yes, but you can do that after hours. You have got family. You have got friends. You have got Facebook. There are a lot of ways to source clients. You do not have to be working the whole day. You can do it after hours or on weekends. --- I did try but for girls to go from Witbank all the way to Kempton Park nobody was really interested. Would you agree with me that he raised the issue of breach of contract to you? ---Yes.

[i] She denied the allegation that the R 2000,00 repayment that she received from the accused was an ex gratia payment. She stated that the accused only paid in the aforementioned amount as he did not have the entire amount. In addition, he told her that he was waiting for monies from models. (14)

14. Cross-Examination Page 436 & 437 - I also put it to you that the accused paid back the first amount of R2 000 to you. It was not a payback on the loan because he will deny that it was an agreement that he will pay you the money R2 500 per month. But that R2 000 was an ex gratia payment from him seeing that the business had just started and that he could not penalise you in the first three weeks for the business not coming from the ground. --- Yes. Would you agree with that? --- Yes. COURT: Did you understand the question? The question is… Mr Interpreter, perhaps you should just interpret it for the witness. The question is that the R2 000 that was paid to you, by the accused, was an ex gratia payment. It was a once off payment because he did not want to see you suffer. MR PIENAAR: He did not want to penalise

her because the business had just started. COURT: He did not want to penalise you because the business had just started. MR PIENAAR: He could not expect you to bring in work in that first three weeks. COURT: So he says the reason he…. You have told this Court that the accused in consideration of your verbal agreement made only one payment of R2 000. You recall saying that? --- Hmm. Yes. Alright. Now, the accused… your version is that in support of what you are telling the Court regarding the loan arrangement and the repayment terms he only paid R2 000 back to you. --- Yes. The accused is now saying hold on, the R2 000 that I paid you was a once off payment to you. --- No. It was not as a result of me repaying the loan, but it was just a once off payment to you because he did not want to penalise you in the three weeks, because the business had just started. What is your response to that? --- No. He said to me that he did not have enough at that time because he was still waiting for money to come in from the models, from their portfolios et cetera. That is why he did not have the full R2 500.

[k] That she spoke to Sasha of Carte Blanche who had advised her to open a criminal case against the accused. She was adamant that she would nonetheless have proceeded to open a case against him, of her own free will and volition.

[l] The accused had never shown or received the books of the business, nor any profit and loss statement.

That in essence concluded the evidence of the 10th witness, Viljoen.

Judgment Defense Case

[a] Count 13 (Viljoen): He testified that Viljoen had not complied with the agreement and denied ever receiving any letter of demand from the attorney.

NOTES: ACCUSED

• This was not verbalised by Viljoen. This is added by the Judge! I did testify that she did not comply to the agreement and it was clear according to the Exhibit (agreement) that she was in breach. I even told her to go to a lawyer and asked her to sue me so we can go to court.

[mm] He admitted that Viljoen had paid him R 50 000,00 (fifty thousand rands) for a partnership and that the witness was lying to the court about the monthly repayment that he was to have made each month. (1) He admitted that he did not make the profit and loss statement available to Viljoen.(2) He reiterated that he had told Viljoen to go to court I order to sue him. Accordingly he was waiting for the summons. (3) He kept the equipment that was paid for by Viljoen in lieu of the expenses of the partnership. He was unable to provide any documentary proof that the company was running at a loss, as all his documents went missing when he was in prison awaiting trial. He admitted that Exhibit “P” did not contain any information that the company was running at a loss, however, he stated that he had informed her verbally about the losses that were being incurred (4)

He was adamant that she made these allegations due to the fact that she was pressured by debt and that she was part of a conspiracy with Carte Blanche, to falsely implicate him.

NOTES: ACCUSED 1. I do not have and transcripts with my chief evidence, I did not need to agree or deny that she paid the R50 000 for the partnership, it was in the agreement that she signed. I did agree that she did pay the equipment money directly to the ORMS – supplier in Cape town.

a. There was no written or verbal agreement about repayments.

c. I did not ask her to take out a loan, she testified she approached me when she saw the offer, how would you enquier about buing into a business but you don’t have funds to do that, when you make a loan;

i. You get a partnership of 49%

ii. You don’t need to invest any time in it while the other partner work, take risk and is responsible for all the expenses and losses

iii. You get the loan paid back irrespective if there is any profit to do so.

That is not a partnership then!

2. Viljoen had no right to any further business after she Breached the agreement. I made it clear that if she wants anything from the business she needs to go see an attorney. I was more than willing to produce those documents in court.

FURTHER CROSS-EXAMINATION BY MR

PIENAAR: M’Lord, I have got one question. One or two questions. Madam, you told the Court that you were told that you had full access to the books of the business. --- Yes. Did you ever request to exercise that right? --- No. No further questions, M’Lord.

NOTES: ACCUSED

• 3. Yes, it was instructed and she acknowledged that I did suggest that. This was the message I have send her;

• His reply was: Rene I told you before you must get me in court. You are right your name appears there and you are in breach of contract it is not even funny. So please do not give me shit unnecessary and go to court please. Everything has been handed to my attorney and we will wait and see what happens. You were never involved from day one and your contribution to the business was zero/nil as the contract • 4. I had to run and pay rent, transport, venue hire and many other costs, many months I did not make enough money to pay the some expenses, the business was not making a profit, my step mother helped me out by purchasing more equipment to expand my business. Again it was within my right.

Judgment

[48] Rene Viljoen testified in respect of Count 13 regarding the allegation of fraud against the accused. She testified that she had paid the accused the amount of R 50 000,00 in terms of an agreement between the parties, for shares in the accused’s company. The accused misrepresented to her and ultimately she lost the money that she had invested with the accused. The accused admits that he received the monies, but denies that she had complied with the agreement. (A)

This witness produced documentary evidence in support of her allegations. (B) This witness gave her evidence in a clear, concise and uncontradicted manner.(C) There is no allegation made against this witness that she is part of a conspiracy. There was no indication of bias towards the accused when she testified.

NOTES: ACCUSED

• A. There was no evidence that she was misrepresented with the business proposal. If I already made a lot of money and was doing so well, why would I sell shares to a person who will not be actively be involved in the business. The intention was clear in the agreement, she gets half the business for R50000 and her time to help me grow the business, the agreement is clear that we share all profits and losses equally. The agreement also is clear how we will be paid, salaries was never set, it was based on the profit of the company.

There was no misrepresentation by me.

• B.There was nothing Rene said that was clear, she made allegations of which the state did not prove. We gave the clear evidence, the agreement is a legal binding document, the few BBM messages she brought to court also back my evidence that she was in Breach and that I asked her to proceed to a court as the agreement stated to resolve the matter. There were many contradictions and proof that there was no crime here; • “Neither partner shall receive any salary for services rendered to the partnership.”

• a. That the contract was not signed at the police station, yet the police stamp is on the document.

• b. My parents are dead

• c. It was an established business, yet she was asked if it was a newly stablished business and she said “Yes”

• d. She did not think it was important to tell the court I refused her to take it to her attorney.

• e. She willing signed (accepted) the partnership agreement (The terms and

Conditions)

• f. That there was separate agreements.

• g. I don’t have a car

h. I flirted with her

• i. The business is doing well

• j. That she told me about making a loan before and on the day of signing the agreement.

• k. That she asked me to put it in the contract and I said no it is fine.

• l. She agreed it was a new business that must generate its own income, still expected payment from day 1.

• m. That she had an obligation to source new business, yet she did nothing and still expected payment. • o. Why she did not go to see an attorney yet she dated a police officer and her friend is an attorney?

• p. She only presented half the messages.

• q. She did not have the phone where the original messages was send from.

• r. That she did speak to an attorney, yet she cannot remember what was discussed.

• s. That there were more messages about the discussion that she is in breach and the fact that she must proceed to court.

• t. On page 430 Pienaar told her she is lying and making stuff up, one minute she cannot remember, the next minute she can…

“How do we go from I cannot remember if I was making the messages initially to now a little bit later on when you are being put into a corner specifically remembering that you made these copies and that he suddenly disappeared from your screen. --- Because

I am thinking and it is coming back to me.

So if I continue to cross-examine you, your memory is going to get much better, is that what you are telling the Court? --- No.”

PIENAAR: I put it to you that the last part of your testimony is a fabrication. You made that up because of the fact that you were put in a corner. Your initial answer was: “I cannot remember if it was me who made these copies.” Until you suddenly had the revelation that you made these copies. --- Because I just… it just hit me that I was busy screen capturing the messages.

COURT: We finish this witness. The reason we wanted to sit in the lunch break was that we wanted to get your evidence over and done with so that you do not need to come back again. But I can see that you are visibly upset. You obviously are emotional and I believe that it will only be fair to give you a fair opportunity to recover. *Proof that she was caught out lying, so she was not “This

NOTES: ACCUSED

• There is no crime here, she was not concise and she did many time contradict herself as pointed out.

• C. She was part of the entire Dominique,

Dion and Carte Blanche crew who was going at me from the beginning.

• D. The judge also made sure he led Rene in questioning so that she could change her answer (see point 14)

PALAVER CONCLUSION

This witness was terrible. She made demands to have photos that did not belong to her and had no right of having.

The State and Court found the Accused guilty on a fraud charge where the SA Police was the reason for the accused not having access to the photos. It was out of his control, and this is not a criminal matter.

This is a civil matter and should not have been heard in a criminal court.

Du Toit used anger for her unreasonable demands to testify and get her way in court.

The court ignored the Release Contract, which is not to be dealt with in a criminal court.