Rex v Alexander and Others

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA, Stratford JA, Beyers JA and De Villiers JA
• Judgment Date: 04 May 1936
• Citation: 1936 AD 445
• Court: Appellate Division

Wessels, C.J.:

This is an appeal on questions of law reserved arising out of a judgment of Mr. Justice SOLOMON sitting with two assessors in the Witwatersrand Local Division. Some 30 questions were reserved, and there was also a special entry. As the latter has been withdrawn we are not concerned with it. One of the questions reserved is whether the indictments cover the case of giving and accepting a bribe (No. 27).

This Court has come to the conclusion that the indictments charge the accused, who were Directors of the Doornhoek Mines Ltd., and Lichtenstein with having had a mandate from the Company to buy certain options on farms in the Vereeniging and Pretoria Districts; Lichtenstein bought these options in collusion with the directors from option holders for the Company and then fraudulently sold them to the Company at an enhanced price and retained for themselves a portion of the difference between the price paid by the Company and the price at which the options were acquired by Lichtenstein. Lichtenstein was charged jointly with them though in fact the charge against him is that he was particeps criminis in the fraud practised upon the Company by these directors. Mockford was charged as guilty of the crime of aiding and abetting the directors and Lichtenstein to carry out the fraud. This Court also finds that there is no charge in the indictments to the effect that Lichtenstein acted fraudulently in bribing the directors to induce the Company to acquire the options or that the directors received a bribe from Lichtenstein.

The court below found that the directors had no mandate from the Company to purchase the options but found them guilty of fraud by concealing from the Company the fact that they had received a large parcel of shares from Lichtenstein as a bribe, and Lichtenstein was found guilty of being particeps criminis as the instigator of the fraud. In these circumstances this Court came to the conclusion that the directors and Lichtenstein were

Wessels, C.J.

found guilty of a charge not formulated in the indictments and therefore the question (No. 27) whether the indictments cover the case of the giving and accepting a bribe must be answered in favour of the accused. I now propose to set out our reasons for coming to this conclusion.

Mr. Millin, on behalf of the Crown, has contended that the indictment is a double-barrelled one. It charges the directors with having had a mandate to buy the options as well as having concealed from the Company the fact that they had been bribed by Lichtenstein. Mr. Millin concedes that the indictment can be read to mean that the fraud or crimen falsi is founded on a mandate to the directors to acquire the options from the Company and a fraud on their part to sell to the Company the options so acquired at an enhanced value - they having pocketed a large portion of the excess; but he has strenuously argued that this is not the only interpretation to be put on the indictment. He referred us to Count No. 1, paragraphs (3) and (4) of the indictment which states that Lichtenstein bought the Vereeniging options and "in so purchasing (Lichtenstein acted in collusion with the other accused (i.e. all except Mockford) with the intent common to all the accused that the said options should be sold to the Company to their profit." This he contends is an allegation that Lichtenstein and the directors conspired, the one to give a bribe the others to take a bribe, when one considers secs. 14 of Count I and 10 of Count 2 in which it is stated that the directors hid from the Company the facts set out in the indictment and did by means of this fraudulent concealment induce the Company to its prejudice to agree to allot, or to allot, shares to purchase the options a portion of which shares went to the directors as unlawful profit. The indictment does not support this contention.

What is the object of an indictment? Its real purpose is to inform the accused in clear and unmistakable language what the charge is or what the charges are which he has to meet. It must not be framed in such a way that an accused person has to guess or puzzle out by piecing sections of the indictment or portions of sections together what the real charge is which the Crown intends to lay against him. These remarks particularly apply to charges under the crimen falsi especially since that crimen has been assimilated to the crimen stellionatus of the Roman law. In the case before us the charge could easily have been laid in the alternative as a

Wessels, C.J.

fraud based on a mandate by the Company or as a fraud based on a bribe by Lichtenstein to the directors to induce the Company to buy the options. There is nothing set out in the indictment that resembles the allegation of a bribe, whereas almost every section implies a mandate and nothing else. Thus section 2 refers to the 26th April, 1934 and alleges an intention on the part of the Company to acquire options over gold-bearing farms. The reference to 26th April, 1934 is a reference to a meeting of directors on that date when an informal discussion arose relative to the policy of the Company acquiring other mining interests of a suitable nature. This policy was approved of in principle but there was no suggestion as to acquiring the options in question or any other options. This allegation therefore can only mean that the Company required its directors to acquire for ii an option over gold-bearing farms. It has nothing to do with bribery.

Then section 3 alleges...