IN THE REGIONAL DIVISION OF THE CAPE
HELD IN THE SPECIALISED COMMERCIAL CRIME COURT
BELLVILLE
Case no: SH7/19/2013
In the matter of:
THE STATE
versus
360 Aviation (Pty) Ltd, in terms of section 332 of Act 51 of 1977 a
company with limited liability duly incorporated and registered in terms
of the company laws of the Republic, as represented by Barry
Oberholzer,

(Accused 1)

and
Barry Oberhozer

(Accused 2)

(Hereinafter referred to as “the accused”)
____________________________________________________________
DRAFT CHARGE SHEET
____________________________________________________________
PREAMBLE TO COUNTS 1-2
WHEREAS at all times relevant to the charge sheet:
1. The accused operated under the style of “360 Aviation (Pty) Ltd”, a
company with limited liability duly incorporated and registered with the
company laws of the Republic, with its principal place of business at
Convair Road, Cape Town International.
1

 2. The accused was the sole director of the above mentioned company at
the relevant time.
3. The accused stood in a fiduciary relationship to the company and is
obliged to display the utmost good faith towards the company in the
dealings with the clients.
4. In August 2010, the business was trading on the brink of bankruptcy.
5. During period 10 January 2010 to 03 March 2011, three (3) civil
judgments in respect of arrear payments were handed down against
the accused. The total of this debt amounted to R246 991,00.
6. The accused also defaulted on payments as stipulated below during
the relevant period:
6.1.

22/03/2011 Credit data User R6258,00

6.2.

21/05/2011 Wesbank R5002,00

6.3.

29/06/2011 FNB Credit card R119 263,00

6.4.

08/09/2011 Discovery Health R1344,00

7. The accused should have been aware that at the relevant that his
company was in a precarious financial position.
8. On 10 August 2010, Mr Johan and Elmarie Kleyn entered into sale
agreement with the 360 Aviation (Pty) Ltd.
9. Johan and Elmarie Kleyn (hereinafter referred to as “the Kleyn’s”) are
married in community of property and are both co-owners of
Motorhaven CC.
10. The subject matter of the deal was fully described in the contract of
sale being: 2008 Robinson 44 Raven 2 helicopter with serial number
12499 and having 17 hours of flight time.

2

 11. The total purchase amount of R2 800 000,00 was stipulated for this
helicopter. There was an additional amount for Value Added Tax
amounting to R392 000,00 that was included in the purchase price.
12. On or about 7 December 2010, the whole purchase amount stated
above was paid to 360 Aviation (Pty) Ltd in terms of the contract of sale
agreement by the Kleyn’s.
13. The helicopter was not delivered during December 2010 and/or
January 2011 as per the agreement and the accused gave various
explanations for the non performance of the contract.
14. The accused during December-January provided photos of extremely
rough seas at Victoria Bay at the coast of Plettenberg Bay as a reason
for the delay of non delivery of the said helicopter.
15. The accused informed the complainants in 22 March 2011 that their
helicopter arrived.
16. The complainants discovered at that juncture that the helicopter that
was delivered materially differed from the one they purchased and
which was fully described in the purchase agreement.
17. The one delivered was a 2007 Raven 1 with serial number: 1724 and
having 400 hours of flight hours.
18. This helicopter was purchased by 360 Aviation (Pty) Ltd represented by
the accused on or about 16 January 2011 from a Spiral Wing Ltd
represented by Duncan Mcdonald.
19. The 2007 Raven 1 helicopter was packed for consignment at
Manchester on 23 February 2011.

3

 20. The Kleyn’s in viewing this helicopter immediately realised that it was
materially different from the one that was purchased.
21. The Kleyns immediately communicated same to the accused and his
legal representatives at the time.
22. There was a written agreement that the said helicopter would be kept
until such time that the apparent dispute between the parties could be
resolved.
23. This was agreed between the accused and his legal representatives
and the Kleyn’s to protect the Kleyn’s interest in the said helicopter until
the matter was fully resolved.
24. The accused undertook to repay the complainants from the sale of this
second helicopter.
25. The legal representatives of both parties were ad idem on the fact that
the helicopter would be retained at Base 4 while the dispute was
ongoing.
26. The accused unbeknown to the Kleyn’s caused this helicopter to be
removed from Base 4, transported to somewhere in America where it
was sold.
27. On 4 April 2011, the accused undertook to pay the amount obtained
from the sale of the 2007 Raven 1 into the account of the
complainants.
28. The accused failed to pay and is still in default of paying the Kleyn’s
after the subsequent sale of the 2007 Raven 1 to the Kleyn’s.
29. The accused together with Izak van Niekerk are the trustees of the
Lonestar Trust Account with Masters Reference number IT 329/2007.
4

 30. A substantial portion of money obtained from the sale of the said
helicopter went into a Lonestar Trust Firstrand bank account with
number 62210826163.
31. The accused subsequent to April 2010 effected withdrawals from the
Lonestar bank account for the upkeep of the living of the accused,
cosmetic products for the accused and general expenses on behalf of
the accused.
32. The accused made payments described as “gifts” to a Mr Merega and
further substantial payments to an entity described as “cadg.”
33. At the relevant period various amounts were paid into the Lonestar
bank account from an undisclosed source.
34. At the relevant time of making the payment by Mr Kleyn, the accused
was under a contractual obligation to disclose any material aspect
pertaining to the purchase sale agreement.
35. It was stipulated and agreed between the parties that the capital
amount would returned if there was any failure on either side to
perform on their obligations in terms of the contract. Clause 3.2 of the
signed contract reads:
“The Helicopter is sold on, as is, where is (that is in it’s actual location,
state and condition on the Acceptance Date), confirming to the
specifications substantially described in schedule 1 to this Agreement.
If not delivered as described in schedule 1, this Agreement will become
null and void and all deposits and other payments shall be returned to
the Buyer, which shall be the sole remedy to the Buyer”.

5

 36. The Kleyn’s went into this contract with a clear understanding that the
capital amount would be safe and unencumbered and the company
would make good on its commitment to return the capital amount.
37. Furthermore, the undertaking by the accused was that the amount paid
by the Kleyn’s would only be used for the concluding of the helicopter
deal described in the contract.
38. The monies paid by the Kleyn’s were utilised mainly for transactions
unrelated to the purchase of Raven 2 helicopter and mainly for the
accused own benefit.
39. The accused stalled the Kleyn’s with promises that helicopter 12499
(Raven 2) would be delivered and that the stormy seas caused the
delay in February 2011.
40. The helicopter that was delivered in March 2010 was only placed on a
cargo boat in March 2011.
41. The helicopter that not exposed to the sea conditions at Plettenberg
bay as explained by the accused to the Kleyn’s.
42. The accused delayed the delivery of the said helicopter in an attempt to
stave off the Kleyn’s.
43. During this period of stalling, the money paid for the procurement of the
helicopter was used by the accused for other unrelated purposes and
substantially for payments from which he could personally benefit.

6

 COUNT 1
NOW THEREFORE the accused is guilty of Fraud
In that between June 2010 and May 2011 and at or near Cape Town in
the Regional Division of the Cape, the accused did wrongfully,
unlawfully, falsely and with the intent to defraud misrepresent Johan
and Elmarie Kleyn that:
360 Aviation was financially stable to fulfil its financial obligations and
would be in a position to return the capital amount paid by the Kleyn’s
in terms of the agreement; and/or
The subject matter of the deal was a 2008 Robinson 44 Raven 2 with
serial number 12499; and/or
The accused never disclosed the fact that the 2008 Robinson 44 Ravin
2 with serial number 12499 was not available but induced the Kleyn’s
to make further payments at a stage when there was a duty upon him
to have disclosed this fact; and/or
the deposit from the Kleyn’s would be utilised to secure the helicopter
deal and not be used on the accused lavish lifestyle and expenses;
and/or
that the Raven 1 helicopter would be sold to partly set off the amount
paid by the complainants,
to the prejudice and/or potential prejudice the Kleyn’s amounting to a
loss of approximately R3 192 000,00 (three million one hundred and
ninety two rand)
whereas when the accused misrepresented as aforesaid, he knew
that:
he would use the Kleyn’s money for other financial commitments and
on his own personal expenses and would not be in a position to repay
them; and/or
he would not be able deliver the 2008 Robinson 44 Ravin 2 with serial
number 12499 which would lead to the cancellation of the deal; and/or
7

 he knew that the monies paid in by the Kleyn’s would not be secured
upon termination of the contract but used the money knowingly that he
would not be able to repay them; and/or
at certain point of the transaction it became abundantly clear to him
that he could not deliver the helicopter but failed to disclose same
because he knew it would impact on the payment of further amounts by
the Kleyn’s; and/or
he would not use the money obtained from the Kleyn’s to secure the
Helicopter agreed upon; and/or
he knew that the money obtained from the sale of the Raven 1
helicopter would not be used to repay the complainants,
And thus committed the crime of Fraud.

Alternative to count 1:
The accused is guilty of THEFT
In that on or about June 2010 and May 2011 at or near Cape Town in the
Regional Division of the Cape, the accused unlawfully and intentionally
misappropriated the of R3 192 000,00 (three million one hundred and ninety
two rand), under the control and/or lawful possession of Motorhaven CC
and/or the Kleyn’s.
COUNT 2
Contravention of section 22(1) read with section 77 of the Companies of
Act 71 of 2008 (Reckless or fraudulently conducting of the business of a
company)
In that during the period June 2010 and May 2011, and at or near Cape Town
in the Regional Division of the Cape, the company of which the accused was
a director, carried on recklessly or with intent to defraud the buyer as set out
in the preamble and count 1, the accused being a party to the carrying on of
the business in the manner as aforesaid;
8

 In that payments were directly or indirectly made to benefit the accused
and/or other persons unrelated to the purchase sale agreement;
And in that the said payments made no legitimate business sense, especially
as the accused embarked on liquidation proceedings and thereby effectively
quashing the possibility of the Kleyn’s recovering their money.

COUNT 3
The Accused is guilty of the contravention of section 4(a) and/or (b) read
with sections 1 and 4 (i), 4 (ii) and 8 of the Prevention of Organised Crime Act,
Act no 121 of 1998
IN THAT during the period June 2010 and May 2011 and at/or near Cape
Town in the Regional Division of the Cape, the Accused did wrongfully and
unlawfully, whilst he knew or reasonably ought to have known that certain
property, to wit money in the total amount of approximately R3 192 000,00
(three million one hundred and ninety two rand) was or formed the proceeds
of unlawful activities; and
performed acts in connection with such property in that money were
transferred to other bank accounts and/or money were used on his personal
expenses and/or used to deposit in offshore accounts which acts had or were
likely to have the effectof concealing or disguising the nature, source, location, disposition or
movement of the said property or the ownership thereof or any interest which
the accused had in respect thereof;
aa.

to avoid prosecution; or

bb.

to remove or diminish property acquired directly, or indirectly, as

a result of the commission of an offence.

COUNT 4
9

 CONTRAVENTION OF SECTION 7(1) READ WITH SECTIONS 1, 8 AND
36(1) OF THE FINANCIAL ADVISORY AND INTERMEDIARY SERVICES
ACT, NO 37 OF 2002
In that during the July 2010 and May 2011 and at or near Cape Town, in the
Regional Division of the Cape, the accused wrongfully and unlawfully acted or
offered to act as a financial services provider by providing financial
intermediary advice and/or facilitating finance applications, whilst no licence
was issued under section 8 of the FIAS Act and/or no application was lodged
by the accused to become an authorised financial services provider in terms
of section 7(1) of the FIAS Act.
Penalty: A person who contravenes or fails to comply with any provision of the
FIAS Act is guilty of an offence and on conviction liable to a fine or
imprisonment for a period not exceeding 15 years.

COUNT 5
PREAMBLE TO COUNT 5
1. The complainant is Benaja Trust (“the trust”) duly represented by Pierre
Uys.
2. On 27 August 2010, Pierre Uys on behalf of entered into a purchase
and sale agreement with the 360 Aviation (Pty) Ltd.
3. The subject matter of the deal was fully described in the contract of
sale being: 2006 Robinson 44 Raven 2 helicopter with serial number
11309 .
4. The selling price for this helicopter was the amount of R2 650 000,00.
10

 5. The complainant paid the 10% deposit amounting to R65000,00 31
August 2010.
6. It was a clear stipulation in the contract that the deposit would remain
refundable until finance is approved.
7. The purchase of the helicopter was subject to the trust obtaining the
necessary finance from a financial institution.
8. The complainant went into this contract with a clear understanding that
the deposit amount would be kept in trust and that it would be
immediately available if finance application was not approved by a
banking institution.
9. Furthermore, the understanding was that the amount paid by the
complainant would only be used for securing the helicopter described
in the contract.
10. Subsequent to the payment of the deposit, the trust applied for finance
with Wesbank for the balance of the purchase price as contemplated in
the agreement of sale.
11. On 7 December 2010, the trust’s application for finance was
unsuccessful and had been declined.
12. The accused was immediately informed of this and the complainant
requested repayment of the deposit.
13. The accused could not refund the total amount and paid in R65000,00
on or about 9 December 2010.
14. The accused thereafter failed to make payment after providing
assurances that he would do so.
11

 15. On 11 May 2011 a further R75000,00 was paid by the accused into the
trust account.
16. No further payments were made.

NOW THEREFORE the accused is guilty of Fraud
In that on or about 27 August 2010 and at or near Cape Town in the Regional
Division of the Cape, the accused did wrongfully, unlawfully, falsely and with
the intent to defraud misrepresent to Pierre Petrus Uys and/or Benaja Trust
that:
360 Aviation was financially stable to fulfil its financial obligations and would
be in a position to return the capital amount paid by the Benaja trust in terms
of the agreement; and/or
The deposit paid by the complainant would be kept in trust and/or secured for
repayment if financing application by the complainant were unsuccessful,
to the prejudice and/or potential prejudice the Kleyn’s amounting to a loss of
approximately R265 000,00 (two hundred and sixty five thousand rand)
whereas when the accused misrepresented as aforesaid, he knew that:
he would use the complainants money for other financial commitments and on
his own personal expenses and would not be in a position to repay the
complainant if the financing application fell through; and/or
he knew that the monies paid in by the complainant would not be secured
upon termination of the contract but used the money knowingly that he would
not be able to repay them; and/or
he was not entitled to utilize the money in any manner pending the finalisation
of the application for finance,

12

 and thus committed the crime of Fraud.

Alternative to count 5:
The accused is guilty of THEFT
In that on or about 27 August 2010 at or near Cape Town in the Regional
Division of the Cape, the accused unlawfully and intentionally misappropriated
the money amounting to R265 000,00 under the control and/or lawful
possession Benaja Trust and/or Pierre Uys.

COUNT 6: FRAUD
PREAMBLE TO COUNT 6
Whereas at all times relevant to the charge sheet:
1. The complainant, Johan Gysbert van Niekerk met the accused at the
Crossfit Protea Gym in Paarl.
2. The complainant, is a director of Star South (Pty) Ltd and RONSA (Pty)
Ltd, both businesses duly incorporated in terms of the laws of South
Africa, having its principal place of business at 9 Church Street,
Wellington and Durban respectively.
3. The above mentioned companies are in the businesses of importing
and exporting of cargo into or out of South Africa.

13

 4. The accused indicated that he wanted to import tiles from the Middle
East into South Africa and therefore wanted the assistance of
complainant.
5. The accused contacted Raven Chetty, who worked at the RONSA (Pty)
Ltd offices in Durban, for the processing the importation of three
containers containing tiles.
6. The accused in e-mail communication that he wanted to import tiles.
7. The cargo of three containers that were stopped by the Customs and
Excise officers at …
8. On inspection of the containers, it was discovered that the cargo
contained cigarettes.
9. The importation of cigarettes subscribes to different procedures and
specified taxes are also payable for the importation of cigarettes.
10. The complainant, representing RONSA (Pty) Ltd would never have had
entered into the contract, if they knew that it was in fact cigarettes that
were imported.
11. The material loss suffered at this stage is R647 734,09 which
comprises of the quoted fee, additional expenses, the legal cost due to
the arrest of the drivers and the detention of the trucks and containers.
12. The company’s reputation has further been severely prejudiced as it
had an unblemished reputation in the import-export industry.
13. The complainant is going to suffer enormous financial loss as a result
of the accused’s conduct.
14. The accused also did not pay for the services delivered by Ronsa (Pty)
Ltd.
14

 15. On 09 March 2015, the complainant received notice that an amount of
R260 545,00 was made into the Ronsa’s account on a ABSA/Barclays
letterhead.
16. This payment never reflected in the bank account of RONSA (Pty) Ltd.
COUNT 6
Read with the minimum sentence provisions of section 51(2)(a) of the
Criminal Law Amendment Act 105 of 1997 with applicable provision of
Part II of Schedule 2 of Act 105 of 1977: “Any offence relating to
exchange control, corruption, extortion, fraud, forgery, uttering or theft(a) involving amounts of more than R500 000,00.”

NOW THEREFORE the accused is guilty of Fraud
In that on or about 27 February 2015 and at or near Paarl in the Regional
Division of the Cape, the accused did wrongfully, unlawfully, falsely and with
the intent to defraud misrepresent to Star South (Pty) Ltd and/or RONSA (Pty)
Ltd. and/or Johan van Niekerk,
that the subject matter of the cargo to be imported was tiles and could be
imported without rigorous procedures governing it,
to the prejudice and/or potential prejudice of Star South (Pty) Ltd and/or
RONSA (Pty) Ltd. and/or Johan van Niekerk amounting to a loss of
R647 734,09 plus future prejudice as a result of reputational consequences,
whereas when the accused misrepresented as aforesaid, he knew that:
the complainant would never have had imported cigarettes on behalf of the
accused, that he side-stepped the import taxes and onerous procedures
15

 needed to be adhered to for the import of cigarettes, that stipulating it as tiles
circumvented the protection mechanisms in respect of importing cigarettes
and thus committed the crime of Fraud.
Alternative to count 6:
The accused is guilty of THEFT
In that on or about 27/02/2015 at or near Paarl in the Regional Division of the
Cape, the accused unlawfully and intentionally misappropriated the of
R647 734,09 under the control and/or lawful possession of Star South (Pty)
Ltd and/or RONSA (Pty) Ltd. and/or Johan van Niekerk,
COUNT 7
NOW THEREFORE the accused is guilty of Fraud
In that on or about 09 March 2015 and at or near Paarl in the Regional
Division of the Cape, the accused did wrongfully, unlawfully, falsely and with
the intent to defraud misrepresent to Star South (Pty) Ltd and/or RONSA (Pty)
Ltd. and/or
Johan van Niekerk,
that the document produced and e-mailed for proof of payment on a ABSA
letterhead to the complainant, truthfully and correctly stated the position at
that stage,
to the prejudice and/or potential prejudice of Star South (Pty) Ltd and/or
RONSA (Pty) Ltd. and/or Johan van Niekerk amounting to a loss of
R260 545,00,
whereas when the accused misrepresented as aforesaid, he knew that:

16

 the document was irregular and that no payments were made into the
complainants account,
and thus committed the crime of Fraud.

Alternative count 7: FORGERY
That the accused are guilty of the crime of FORGERY.
IN THAT on or about 09/03/2015 and at or near Paarl in the Regional Division
of the Cape, the accused did unlawfully, falsely and with the intent to defraud
and to the prejudice or potential prejudice of Star South (Pty) Ltd and/or
RONSA (Pty) Ltd. and/or Johan van Niekerk forge an instrument to wit: a
proof of payment on an ABSA letterhead.

COUNT 8: FRAUD
PREAMBLE COUNT 8
Whereas at all times relevant to the charge sheet:
1. The accused posted an investment proposal on an investment network
site for Capital to acquire machinery for the manufacture of a brand
Cigarettes called Rocco for a Cyprus based company called Alpheceti.
2. The accused manufacturing business was called Atlantic Tobacco in
Paarl.
The accused indicated that he had acquired the licence to produce
cigarettes for Alphacetti.
3. The central highlight of this investment entailed the investor to receive
50% shareholding in Atlantic Tobacco.
17

 4. The complainant, Christopher Alexander Weir of Kensington place CC,
expressed an interest to invest.
5. Christopher Alexander Weir arranged a meeting with the accused at
Val de Vie clubhouse, where the accused was also resident.
6. The accused secured a lease for the premises to manufacture the
cigarettes at the old British American Tobacco premises in Berg River,
Paarl.
7. The complainant signed certain statutory documents and Loan
Agreements in respect of the business proposition of Atlantic Tobacco.
8. The accused indicated that he travelled to Dubai to ensure that the
machine was correct for the purposes envisaged.
9. During September 2013, the accused advised that everything was set
for the importation of the machine.
10. The accused advised that he had contracted a procurement company
based in Durban to facilitate the importation of the machinery.
11. The complainant was forwarded a message from on Shie Shahied of
Lonestar Procurements (Pty) Limited.
12. The complainant received an invoice from the above procurement
company indicating that the accused paid the sum of R2342 200,00 in
respect of the importation of the machinery.
13. On 27 September 2013, the complainant made payment in the amount
of R 2 290 723,42 from his Investec account into ABSA bank account
with number: 9208782083 believing that it was into the Lonestar
Procurement (Pty) Ltd account facilitating the importation of the
machinery.
14. The accused never informed the accused that he was the sole
beneficiary and trustee of this account when there was clearly a duty

18

 upon him in terms of the business venture and/or the contracts that
were between him and the complainant.
15. The complainant was made to believe that the machine was
successfully loaded and it appeared that all steps were implemented to
start up the business.
16. Atlantic Parcel Services opened up a bank account at First National
Bank with account number 62441511070.
17. The accused together with the complainant would have access to the
account but the accused as the managing director would have access
for purposes of effecting payments.
18. On 20 November 2013, the complainant deposited R50 000,00 for
rental of the building and to defray day to day expenses.
19. During December 2013, the accused indicated that both parties had to
invest R300 000,00 to cover the amount required by SARS in respect
of a bond.
20. This amount was paid into an account held at Rand Merchant Bank.
21. This account is a fictitious account.
22. The complainant deposited R300 000,00 in the Atlantic Tobacco
account.
The accused during February 2014 advised the complainant that the
machinery was almost cleared at customs.
23. The complainant paid an amount of RR260 000,00 into the Atlantic
Tobacco account on 12 February 2015.

19

 24. On 20 February, the complainant paid R300 000,00 into the Rand
Merchant Bank account, ostensibly for an increase by SARS on its
bond facility.
25. On 18 February 2014, the accused advised the complainant that the
vat number was 4880245982.
26. The complainant made further payments of R130 000,00 and R20 000
on 11 March 2014 in respect of supposedly filters and rent respectively
into the Atlantic Tobacco account.
27. The accused indicated that he had further lucrative contracts to supply
Philip Morris cigarettes to the Kurdisan Government.
28. The accused advised that ITM a Nertherlands based company with
offices in Johannesburg that could assist in repairing the machine as a
result of supposed rust damage.
29. The complainant paid an amount of R150 000,00 into the ABSA
account number: 91234074013
30. The beneficiary of this account is the director of Heli Capital (Pty)
Limited, Marcel Oberholzer.
31. Marcel Oberholzer is the brother of the accused.
32. The machinery/equipment for the manufacturing of the cigarettes in
respect Atlantic Tobacco did not exist.

COUNT 8: FRAUD
Read with the minimum sentence provisions of section 51(2)(a) of the
Criminal Law Amendment Act 105 of 1997 with applicable provision of
Part II of Schedule 2 of Act 105 of 1977: “Any offence relating to

20

 exchange control, corruption, extortion, fraud, forgery, uttering or theft(a) involving amounts of more than R500 000,00.”

NOW THEREFORE the accused is guilty of Fraud
In that between August 2013 and June 2014 and at or near Paarl in the
Regional Division of the Cape, the accused did wrongfully, unlawfully, falsely
and with the intent to defraud misrepresent to Christopher Weir and/or
Kensington Place CC,
that there was a Bona Fide business proposal on the table to manufacture
cigarettes and/or,
that monies paid into accounts were for the accountholders as specified by
him on behalf of the business venture of manufacturing cigarettes, and/or
the creditors and/or entities requiring payment for the manufacturing of
cigarettes were bona fide expenses of Atlantic Tobacco, and/or
that the SARS bank account for payment of the bonded warehouse was a
Rand Merchant Bank account, and/or
that ITM were a Netherlands based company assisting to repair the
machinery, and/or
that the machinery in respect of the manufacturing of the cigarettes were
obtained from the suppliers,
and/or that repair costs needed to be paid in respect of the machinery, and/or
that he travelled overseas to negotiate and consult about the business in
respect of the cigarettes machinery, and/or
that the funds invested by the complainant would be used to get the cigarette
production facility operational,
to the prejudice and/or potential prejudice of Christopher Weir and/or
Kensington Place CC, amounting to a loss of R3200 723,42
whereas when the accused misrepresented as aforesaid, he knew that:

21

 there was no Bona Fide business proposal on the table to manufacture
cigarettes and/or,
that monies paid into accounts were not for the accountholders as specified
by him on behalf of the business venture of manufacturing cigarettes, and/or
the

creditors

and/or

entities

ostensibly

requiring

payment

for

the

manufacturing of cigarettes were not bona fide expenses of Atlantic Tobacco,
and/or
that it was a fictitious SARS bank account for payment of the bonded
warehouse was a Rand Merchant Bank account, and/or
that ITM were a Netherlands based company but not assisting to repair the
cigarette machinery and the money went into a company’s account
administered by his brother, and/or
that the machinery in respect of the manufacturing of the cigarettes were not
obtained from the suppliers,
and/or that there were no repair costs needed to be paid in respect of the
machinery, and/or
that he did not travel overseas to negotiate and consult about the business in
respect of the cigarettes machinery, and/or
that the funds were not used to get the production facility operational and that
the funds were not for the benefit of Atlantic Tobacco but were utilized for his
own interest unrelated to the cigarette production facility;
and thus committed the crime of Fraud.
Alternative to count 8:
The accused is guilty of THEFT
In that on or about August 2013 to June 2014 at or near Paarl in the Regional
Division of the Cape, the accused unlawfully and intentionally misappropriated
the of R3200 723,42 plus interest under the control and/or lawful possession
of Christopher Weir and/or Kensington Place CC.
COUNT 9: FRAUD

22

 PREAMBLE COUNT 9
WHEREAS at all times relevant to the charge sheet:
The accused is the sole shareholder of Phoenix Crossfit Paarl Proprietary
Limited.
1. The complainant, Christopher Weir was served with a summons
commencing action initiated by the plaintiff, Alac Proprietary Limited
against Crossfit Paarl Proprietary Limited.
2. The action is in respect of arrear rentals in respect of a purported lease
agreement entered in respect of a premise situate at Unit 3, Riverside
Industrial Park, Bella Vista.
3. The current arrear rental are R458 577,31 plus interest at 2% per
month.
4. The complainant have never been an interested party or associated
with the business of Crossfit Paarl [Protea Gym] Proprietary Limited.
5. The claim by the plaintiffs is premised on the fact that the complainant
signed the lease agreement as well as suretyship at the time of the
execution of the lease.
6. The complainant does not bear knowledge of these contracts and did
not sign same.
7. The accused was the responsible person for negotiating the lease on
behalf of ostensibly the complainant.
8. The accused had a direct and vested interest in the business of
Crossfit Paarl Proprietary Limited.

Count 9
23

 NOW THEREFORE the accused is guilty of Fraud
In that on or about April 2014 and at or near Paarl in the Regional Division of
the Cape, the accused did wrongfully, unlawfully, falsely and with the intent to
defraud misrepresent to Alac (Pty) Ltd and/or Christopher Weir and/or Diego
Grabia:
that a lease agreement and suretyship agreement was duly entered between
Christopher Weir and Alac Proprietary Limited in respect of the property
situated at Unit 3, Riverside Industrial Park, Bella Vista.
to the prejudice and/or potential prejudice of Alac (Pty) Ltd and/or Christopher
Weir and/or Diego Grabia: amounting to a loss of R458 577,31 plus interest
whereas when the accused misrepresented as aforesaid, he knew that:
the complainant never signed the said agreements, that the signature on
behalf of the complainant was a forgery and never intended to pay Alac
Proprietary Limited timeously or at all,
and thus committed the crime of Fraud.
Alternative to count 9:
The accused is guilty of THEFT
In that on or about 10/04/2015 at or near Paarl in the District of Paarl, the
accused unlawfully and intentionally misappropriated the of R458 577,31 plus
interest under the control and/or lawful possession of Alac Proprietary Limited
Further alternative count 9: FORGERY
That the accused are guilty of the crime of FORGERY.

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 IN THAT on or about 10/04/2015 and at or near Paarl in the District of Paarl,
the accused did unlawfully, falsely and with the intent to defraud and to the
prejudice or potential prejudice of the Alac (Pty) Ltd and/or Christopher Weir:
forge instruments a lease agreement and a suretyship agreement as outlined
in the preamble.

COUNT 10
DEFEATING THE ADMINISTRATION OF JUSTICE
THAT the accused is guilty of the crime of Defeating or Obstructing the
Administration of Justice
IN THAT upon or about the 14 th day of May 2015 and at or near Paarl in the
Regional Division of the Cape, the accused did unlawfully and with intent to
defeat or obstruct the course of justice, commit an act, to wit having
Christopher Wier summoned for arrear rental in terms of a lease agreement
which act defeated or obstructed the administration of justice.

COUNT 11: FRAUD
NOW THEREFORE the accused is guilty of Fraud

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 In that on or about 10 April 2015 and at or near Paarl in the Regional Division
of the Cape, the accused did wrongfully, unlawfully, falsely and with the intent
to defraud misrepresent to Monette van Antwerpen and/or BMW Paarl that:
Proof of payment on a notification of a FNB letterhead for the service of his
BMW vehicle was correct and true reflection of what it represented;
to the prejudice and/or potential prejudice of BMW and/or Monette van
Antwerpen amounting to a loss of R24 811,42
whereas when the accused misrepresented as aforesaid, he knew that:
the recipient account [payee details] were incorrectly recorded but
nonetheless presented the document as proof of payment to ensure the
release of his BMW vehicle,
and thus committed the crime of Fraud.
Alternative to count 10:
The accused is guilty of THEFT
In that on or about 10/04/2015 at or near Paarl in the Regional Division of the
Cape, the accused unlawfully and intentionally misappropriated the of R24
811,42, under the control and/or lawful possession of BMW and/or Monette
van Antwerpen.

Further alternative to count 10:
That the accused are guilty of the crime of FORGERY.
IN THAT on or about 10/04/ 2015 and at or near Paarl in the Regional Division
of the Cape, the accused did unlawfully, falsely and with the intent to defraud

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 and to the prejudice or potential prejudice of the BMW Paarl and/or presented
a forge document to wit: FNB notification of payment.

COUNT 11: THEFT
PREAMBLE
1. The accused went into a deal for the sale of cigarettes with the
complainant, Omar Abdulahl Omar [a Somalian citizen].
2. On the 09 May 2015, a truck with ostensibly cigarettes were given to
the complainant in exchange for R250 000,00.
3. The money was handed over to the accused.
4. The accused indicated that he worked for BAT Stellenbosch in the
manufacturing and distribution of cigarettes.
5. When the contents of the boxes of the truck were inspected, it was
empty.
6. The accused wallet was found underneath the front passenger seat of
the vehicle.
7. The truck mysteriously vanished after being parked at the Bellville
police station.

The accused is guilty of THEFT
In that on or about 09/05/2015 at or near Paarl in the Regional Division of the
Cape, the accused unlawfully and intentionally misappropriated the amount of

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 R250 000,00, under the control and/or lawful possession of Omar Abdulahl
Omar.
COUNT 12: FRAUD
NOW THEREFORE the accused is guilty of Fraud
In that between 1 December 2014 and 25 February 2015 and at or near Paarl
in the Regional Division of the Cape, the accused did wrongfully, unlawfully,
falsely and with the intent to defraud misrepresent to Michael Walton and/or
Kill Cliff that:
He was intending to pay for products supplied to CrossFit Protea and the FNB
proof of payment reflected the truthful and correct state of affairs
to the prejudice and/or potential prejudice of Michael Walton and/or Kill Cliff
amounting to a loss of R13 789,44
whereas when the accused misrepresented as aforesaid, he knew that:
he would not pay for the goods and that the proof of payment was a
fabrication to stall the proceedings thus committed the crime of Fraud.

Alternative count 12: FORGERY
That the accused are guilty of the crime of FORGERY.
IN THAT on or about 31 March 2015 and at or near Paarl in the Regional
Division of the Cape, the accused did unlawfully, falsely and with the intent to
defraud and to the prejudice or potential prejudice of the Michael Walton
and/or Kill Cliff presented a forge document to wit: FNB notification of
payment.

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 COUNT 13: FRAUD
NOW THEREFORE the accused is guilty of Fraud
In that between 1 December 2014 and 25 February 2015 and at or near Paarl
in the Regional Division of the Cape, the accused did wrongfully, unlawfully,
falsely and with the intent to defraud misrepresent to Michael Walton and/or
Kill Cliff that:
He was intending to pay for products supplied to CrossFit Protea and the FNB
proof of payment reflected the truthful and correct state of affairs
to the prejudice and/or potential prejudice of Michael Walton and/or Kill Cliff
amounting to a loss of R13 789,44
whereas when the accused misrepresented as aforesaid, he knew that:
he would not pay for the goods and that the proof of payment was a
fabrication to stall the proceedings thus committed the crime of Fraud.
COUNTS 14-15
PREAMBLE
At all times relevant to the charges:
1. On 5 February 2012, the accused entered into a lease agreement in
respect of Erf 566 Val de Vie Estate with Ian Mc Pherson.
2. The accused and his wife has been residing at this premises ever since.
3. Over the period till today, the accused defaulted on payments on various
occasions.
4. The accused is in arrears for the period March, April, May and June in the
amount of R135 000,00.

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 5. The accused forwarded two “Notification of Payments” documents via email dated 17 March 2015 in the amount of R30 000,00 and 21 April
2015 in the amount of R105 000,00 respectively.
6. No payments were made into the complainant’s account evidencing
these payments.
COUNTS 14-15
Now therefore the accused is guilty of FRAUD
In that on or about the dates as per column 1 of the schedule and at or near
Paarl in the Regional Division of the Cape, the accused did wrongfully,
unlawfully, falsely and with the intent to defraud misrepresent to Ian Donald
Mc Pherson that:
That the FNB proof of payment truthfully and correctly reflected the payment
into the complainants account,
to the prejudice and/or potential prejudice of Ian Donald Mc Pherson
amounting to a loss of the amount stipulated in Column 2 of the schedule,
whereas when the accused misrepresented as aforesaid, he knew that:
the documents were not proof of payment into the complainants account but
that the documents were forgeries.
SCHEDULE
Count

Dates

Amounts

s
14

17/03/201

R30 000,00

15

5
21/04/201

R105 000,0

5

0

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 Alternative counts:14-15: FORGERY
That the accused are guilty of the crime of FORGERY.
IN THAT on or about the dates in the above schedule and at or near Paarl in
the Regional Division of the Cape, the accused did unlawfully, falsely and with
the intent to defraud to Ian Donald Mcpherson produced a forged instrument
to wit: a proof of payment on a FNB letterhead as outlined in the schedule
above.

COUNTS 16-19: FORGERY
PREAMBLE TO COUNTS 16-19:
1. The complainant Cipla as represented by Shaun Patrick Clulow is a
pharmaceutical company which provides amongst other things
supplementary nutritional products to various outlets.
2. The accused provided 4 electronic “confirmation of payment” over a
period of November 2014 to April 2015.
3. These payments were not in fact received by the complainant.
That the accused are guilty of the crime of FORGERY.
IN THAT on or about the dates as per schedule 2 and at or near Paarl in the
Regional Division of the Cape, the accused did unlawfully, falsely and with the
intent to defraud and to the prejudice or potential prejudice of CIPLA and/or
Shaun Clulow produced forged instruments to wit: “confirmation of payments”
on FNB letterheads as outlined below.

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 SCHEDULE 2
Count

Dates

Amounts

s
12

06/11/201

R12 649,61,0

13

4
19/02/201

0
R3130,00

14

5
11/03/201

R4961,22

15

5
01/04/201

R4790,00

5

COUNT 20: FRAUD
PREAMBLE
1. The accused handled and controlled the finances of Crossfit Gym in
Paarl.
2. Crossfit Gym Paarl arranged a fund raising event “ROW FOR WILLEM”
on behalf of Willem van der Merwe.
3. The accused withdrew this money from the Crossfit Gym FNB account.
In that on or about 16 May 2015 of the schedule and at or near Paarl in the
Regional Division of the Cape, the accused did wrongfully, unlawfully, falsely
and with the intent to defraud misrepresent to Willem van der Merwe and/or
all the contributors of the event that:
All the money raised as the result of the fund raising event would be
contributed towards the medical treatment on behalf of Willem,
to the prejudice and/or potential prejudice of Willem van der Merwe and/or all
the contributors of the event amounting to a loss in the amount of
R25 300,00,
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 whereas when the accused misrepresented as aforesaid, he knew that:
the money would be used for his personal benefit.

COUNT 21
Contravention of section 22(1) read with section 77 of the Companies of Act
71 of 2008, (Reckless or fraudulently conducting of the business of a
company)
In that during the period January 2014 and May 2015, and at or near Paarl in
the Regional Division of the Cape, the company of which the accused was a
director [Lonestar Procurement (Pty) Ltd and/or Crossfit Protea], carried on
recklessly or with intent to defraud the buyer as set out in the preamble and
count 1, the accused being a party to the carrying on of the business in the
manner as aforesaid;
In that payments made from the Phoenix Crossfit Protea account, held at FNB
Paarl with number 62472288284 ostensibly made on behalf of creditors were
directly or indirectly made to benefit of the accused and/or other persons
unrelated to these creditors and/or amounts paid in connection with the
accused broader business activity, were utilised for unrelated purposes.

COUNT 22
The Accused is guilty of the contravention of section 4(a) and/or (b) read with
sections 1 and 4 (i), 4 (ii) and 8 of the Prevention of Organised Crime Act, Act
no 121 of 1998
IN THAT during the period January 2014 and May 2015 and at/or near Paarl, in
the Regional Division of the Cape, the Accused did wrongfully and unlawfully,
whilst he knew or reasonably ought to have known that certain property, to wit
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 money in the total amount of approximately R 1 million (one million one rand)
was or formed the proceeds of unlawful activities; and
performed acts in connection with such property in that money were transferred
to other bank accounts and/or money were used on his personal expenses
and/or used to deposit in offshore accounts which acts had or were likely to
have the effectof concealing or disguising the nature, source, location, disposition or movement
of the said property or the ownership thereof or any interest which the accused
had in respect thereof;
aa.

to avoid prosecution; or

bb.

to remove or diminish property acquired directly, or indirectly, as a
result of the commission of an offence.

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