The State V Michelle Nunes and Rudi John Baker (Case No. SCCC 273/11) – Johannesburg SCCC: A landmark case on corporate fraud and financial misrepresentation
In 2024, Regional Magistrate Venter, sitting at the Special Commercial Crimes Court (SCCC) in Palm Ridge, Johannesburg, delivered judgment in a case initiated by the State in 2012 against Michelle Nunes (Accused 1) and Rudi John Baker (Accused 2).
Factual background and charges brought
Ms Michelle Nunes faced 160 counts of fraud, alternatively theft, amounting to R 1 801 052.14, committed between 2006 and 2008. Additionally, she was charged with three counts under section 5 of the Prevention of Organised Crime Act 121 of 1998 (POCA) for assisting another to benefit from proceeds of unlawful activities. Mr Rudi John Baker was faced with the same 160 counts of fraud, alternatively theft, and three counts under section 6 of POCA, for acquiring, possessing, or using the proceeds of unlawful activities.
The proceedings spanned over a decade, involving extensive evidence, such as payslips, appointment letters, bank statements, affidavits, audit trail reports, and the testimony from 10 witnesses.
The charges against Ms Nunes pertained to:
(i) unauthorised travel allowances amounting to R167 000.00;
(ii) adding Mr Baker to her medical aid without authority, causing a loss of R9 707.50 to Xanadu Printing and Graphics (Xanadu);
(iii) the making of creditor payments for her benefit totalling R1 184 933.14.
(iv) self-approved salary increases amounting to R19 411.50; and
(v) assisting Mr Baker in benefiting from criminal activities. Mr Baker’s charges related to acquiring, possessing, or using the proceeds of unlawful activities. Both accused pleaded not guilty.
The offenses occurred between 2006 and 2008, while Ms Nunes was employed by Robbie Robson, managing director of Xanadu, as a bookkeeper for the company. Mr Robson’s testimony highlighted discrepancies in bookkeeping and detailed Ms Nunes’ employment, noting she was a salaried employee entitled to medical aid covering her two minor children.
Ms Nunes worked at Xanadu from 2002 until her resignation in 2008. In her final month, she trained her successor, Ms Erna Buitendag, who discovered discrepancies in Ms Nunes’ final payslip, prompting an investigation.
The court’s analysis of evidence
During the trial, Mr Robson testified that the R167 000.00 in travel allowance payments were unauthorised, as Ms Nunes was office-bound. While she was entitled to certain travel assistance, it did not amount to this sum. As bookkeeper, Ms Nunes was authorised to perform bank transfers for salary/wage payments, including her own salary, as well as creditor payments, but no other transfers from the company bank account were authorised.
On 20 February 2013, Ms Nunes admitted that scrutinised amounts were transferred from Xanadu’ bank account into her own. She also acknowledged a romantic relationship with Mr Baker, whom she had added as a beneficiary to her medical aid. Mr Baker confirmed his beneficiary status on the medical aid scheme and his romantic involvement with Ms Nunes.
Evidence and testimony addressed Xanadu’s handling of creditor payments, IRP5s, salary increases, and dealings with Mr Baker. Notably, the court heard from both qualified and unqualified auditors regarding an audit trail conducted to investigate the alleged offenses. It became evident that Ms Nunes had employed two methods to hide the transactions:
(i) she hid the true beneficiaries by loading a different beneficiary name on the bank payment transfer description, but on the bank side, the true beneficiary could not be hidden; and
(ii) she used a “batch payment” system to make bulk payments to beneficiaries using a single description which is visible on the bank statement but in fact consists of multiple payments to different recipients, one of the batches always going to herself. The effect of this was that the bank reconciliation still balanced but the recipients were hidden.
Ms Nunes alleged that Mr Robson had requested sexual favours from her and in return she was allowed to help herself to salary additions, travel allowances, and adding Mr Baker as a beneficiary to her medical aid. She claimed that her travel allowance increased when she became a permanent employee due to a salary adjustment and that Mr Robson was always aware of her salary and would sign off on her monthly payslips. She denied stealing from or defrauding the company. Mr Baker denied committing or conspiring with Ms Nunes to commit fraud or theft, asserting he was added to Ms Nunes’ medical aid with authorisation and was unaware that the money transferred for him to purchase Sausage Saloon originated from Xanadu or were illegally obtained.
In determining whether or not the allegations of fraud or theft were correct, the court weighed up all the elements which pointed towards a guilty verdict against all those elements which indicated the innocence of the accused.
The court found Ms Nunes’ claim – that Mr Robson effectively stole from his own company – was extremely improbable. Magistrate Venter stated that the court accepted Mr Baker always knew the source of the money and that it was illegally obtained. His actions thus fell squarely within the fraud framework through acting in common purpose with Ms Nunes.
Conclusion
In light of the above and following the court’s consideration of the evidence and defences and versions raised, Magistrate Venter found Ms Nunes guilty of 160 counts of fraud and three counts in terms of section 5 of POCA, and Mr Baker guilty of three counts of fraud and three counts in terms of section 6 of POCA.