Besselaar v Registrar, Durban and Coast Local Division, and Others

• Jurisdiction: South Africa
• Judge: Hurt J
• Judgment Date: 06 December 2000
• Citation: 2002 (1) SA 191 (D)
• Docket Number: 3384/2000
• Hearing Date: 20 November 2000
• Counsel: P J Olsen SC for the applicant. No appearance for the first, second and fourth respondents. K G B Swain SC for the third respondent.
• Court: Durban and Coast Local Division

Hurt J:

On 20 November 2001 I made an order directing the second respondent (the Receiver of Revenue, Durban) to pay the amount of R500 000 held as a fine imposed on B T Sadler under reference 'Deferred Fine CC46/97' to the applicant. The counter-application by the third respondent was dismissed and the C third respondent was ordered to pay the costs of the application and the counter-application. These are my reasons for making that order.

Briefly summarised, the history of the matter is that in 1994 Mr B T Sadler was arraigned on various charges involving contraventions of the D Corruption Acts, Act 6 of 1958 and Act 94 of 1992, forgery and uttering and fraud. Bail was fixed at R200 000. The applicant, who is his father-in-law, paid the bail on Sadler's behalf. On 23 August 1995 a provisional order of sequestration was granted against Sadler. This order was confirmed in October 1995 and, on 15 December 1995, the third respondent was appointed as the trustee of Sadler's insolvent estate. The criminal trial proceeded in the High Court, its E conclusion being delayed because the presiding Judge recused himself and it was necessary for the trial to commence de novo before Squires J. In 1998 Squires J convicted Sadler on a number of counts. On seven of the counts concerning contraventions of Act 94 of 1992, which were taken together for the purpose of sentence, Sadler was F sentenced to a fine of R500 000 or five years' imprisonment. In respect of all of the other counts on which he was convicted, he was sentenced to suspended periods of imprisonment. He was given leave to pay the fine in two instalments, an instalment of R300 000 to be paid by 29 April 1998 and an instalment of R200 000 to be paid by G 29 March 1999. On about 1 April 1998 the applicant surrendered the bail bond and instructed the Magistrate's Court, Durban, to transfer the amount of R200 000 to the Registrar of the High Court, Durban and Coast Local Division, who is cited as the first respondent in these proceedings. On 29 April 1998 the applicant handed a cheque, drawn by First National Bank for the amount of R100 000, to the first respondent in payment of the balance of H the first instalment of R300 000. On 28 March 1999 the first respondent was paid the balance of R200 000. There is some doubt on the papers as to whether this amount was paid by a cheque drawn by the First National Bank or a cheque drawn by the applicant and guaranteed by the First National Bank. The bank statement which the I applicant has annexed indicates that his account was debited with the amount of R200 000, apparently in respect of a 'bank cheque'. The letter from the bank, which is at p 92 of the papers, states that 'a bank guaranteed cheque' for R200 000 was issued in favour of the High Court of South Africa. However, this letter goes on to state that 'this cheque was paid for and handed to Mr O H J

Hurt J

Besselaar'. It seems to me that, as a matter of fact, the applicant's statement in para 24 A to the effect that a bank cheque was issued for the amount of R200 000 on 29 March 1999 is correct. Mr Swain, who appeared for the third respondent, made certain submissions based on the identity of the person who drew the cheques for payment of the fine instalments and it is for this reason that I have referred to the details of these payments as they appear on the papers. My finding of B fact in this regard is that the amounts of R100 000 paid on 29 April and R200 000 paid on 29 March 1999 were both paid by way of cheques drawn by the First National Bank. It will suffice, for the purpose of giving these reasons, for me to say I would not have approached the matter any differently if in fact it had transpired that C one or both of these cheques were drawn by the applicant and guaranteed by the First National Bank.

Subsequent to the payment of the fine, the State was given leave to appeal against the sentences imposed on Sadler. There is no indication of when this leave was granted but the appeal was argued in the Supreme Court of Appeal on 14 March 2000 and judgment was delivered on D 28 March 2000. That appeal was successful inasmuch as the Supreme Court of Appeal took the view that the sentences imposed on 13 of the counts should be set aside, that all 13 counts should be taken together for the purpose of sentence and that a sentence of four years' imprisonment should be imposed. Included in these 13 counts were the E seven counts on which Sadler had been sentenced to the fine of R500 000 with...