The Eastern Cape High Court (Mthatha) has set aside the fraud and theft conviction of Eastern Cape doctor Chwayita Yako, says a Daily Dispatch report.

Appeal Judge Belinda Hartle and Acting Judge ZZ Matebese said the state had failed to even come close to proving Yako had stolen or defrauded millions of rands arising from a R75m loan granted to him to set up the Cross-med Mthatha Private Hospital more than a decade ago. 

The court found the state had not produced evidence to support claims that Yako had been in criminal breach of his fiduciary duties towards the hospital company.

Yako’s arrest in 2018 was in connection with a R75m Industrial Development Corporation loan to build the private hospital.

In 2021, Mthatha Regional Magistrate Noluthando Conjwa convicted Yako of stealing R1.29m from the project. He was sentenced to an effective 10 years’ imprisonment. When he sought leave to appeal, Conjwa was persuaded that another court could come to a different conclusion.

Hartle and Matebese did just that, adds the Daily Dispatch report.

They found the state’s evidence, in fact, confirmed that the supposedly suspicious payments had been transparently made by Yako and ‘not in breach of his fiduciary responsibilities and not unjustified at all’. 

The judges found the state had ‘perfunctorily’ resisted the appeal mainly because Yako had not testified in his own defence. This left it open to debate ‘whether this had effectively sealed his fate and damned him to the two convictions’.

They found it had been clear that the state had not put up a case requiring Yako to explain himself.

The judges said in the case of the conviction for theft, the principal act of supposed misappropriation of the R1.29m was contradicted by the evidence of the state’s own witnesses.

The judges said: ‘There was nothing per se untoward about him having given effect to the transaction as he did. ‘We are satisfied that Yako’s conviction on this charge, based on tenuous threads of suspicion of culpable wrongdoing on his part, was a huge stretch. Fundamental to the charge was whether Yako had made the misrepresentation, as contended. This could not have been sustained once the trial court accepted that it had become common cause at the end that Yako owned the licence and practice number issued in the name of Cross-med Mthatha Private (Pty) Ltd, which he withdrew at the end of the lease agreement.’

They added: ‘In conclusion, there was no obligation on Yako to prove his innocence and no adverse inference fell to be drawn by his failure to testify adjudged against the poor case proffered by the state. It simply failed to prove its case against him on the criminal standard in respect of either charge.’

Full Daily Dispatch report