Ellis v Visser

• Jurisdiction: South Africa
• Judge: Blackwell J and Dowling J
• Judgment Date: 11 December 1953
• Court: Transvaal Provincial Division
• Citation: 1954 (2) SA 431 (T)

Ellis v Visser
1954 (2) SA 431 (T)[*]

1954 (2) SA p431

Citation	1954 (2) SA 431 (T)
Court	Transvaal Provincial Division
Judge	Blackwell J and Dowling J
Heard	November 24, 1953; December 4, 1953
Judgment	December 11, 1953

Flynote : Sleutelwoorde

Criminal procedure — Prosecutions — Private prosecution — E Requirement of — Prosecutor showing no title and not having suffered an actionable injury — Costs of appeal — Private prosecution — Appellant succeeding on preliminary point that prosecutor had no title to prosecute — No order as to costs in either court — Magistrate's order for Crown to pay costs of prosecution set aside — Leave granted to appeal on merits and as to costs.

Headnote : Kopnota

F The Court on appeal set aside a conviction and sentence imposed in a private prosecution for fraud where, per BLACKWELL, J., the prosecutor had no title to prosecute, and, per DOWLING, J., the prosecutor had not shown that he had suffered any actionable injury as required by the decision in Mullins and Meyer v Pearlman, 1917 T.P.D. 639.

Where the magistrate had ordered in terms of section 363 (3) of Act 31 of 1917 that the costs of such prosecution be paid by the Crown, and the G appellant had succeeded on an appeal on a preliminary point, viz. that the prosecutor had no title to prosecute, in an application by the respondent for leave to appeal from such decision,

Held, that leave to appeal in so far as necessary should be granted.

Held, further, as the magistrate would have had no power to award costs against the respondent unless appellant was first convicted, that the Court could make no order as to costs in the court below.

Held, further, that the order of the magistrate as to costs should be set aside.

Held, further, in the absence of the elements of unfoundedness and H vexatiousness, that the Court should not, in the exercise of its discretion, make any order as to the costs of appeal.

Held, further, that full leave to appeal should be granted to both parties both on the merits and on the costs.

1954 (2) SA p432

Case Information

Appeal from a conviction in a private prosecution. The facts appear from the reasons for judgment.

A. Faure Williamson, Q.C. (with him D. O. Vermooten), for the appellant: The prosecutor had no locus standi or title to prosecute in terms of sec. 14 of Act 31 of 1917, see Mullins and Meyer v Pearlman, A 1917 T.P.D. 639. The cases of Solomon v Magistrate, Pretoria and Another, 1950 (3) SA 603, and Attorney-General of the Orange Free State v van der Merwe and Borman, 1946 OPD 197, are single Judge decisions and are obiter. The prosecutor had individually no right of action civilly and therefore no right to prosecute.

R. S. Welsh, for the respondent: It is clear that Visser suffered prejudice as a result of the fraud which Ellis committed, and that had the prosecution been at the public instance and had the charge alleged B prejudice to Visser only, Ellis' conviction would have been upheld. Prejudice does not necessarily connote patrimonial loss or actionable damage. See R v Seabe, 1927 AD 28 at p. 33; R v Macatlane, 1927 T.P.D. 708 at pp. 712 - 3; R v Mkolo, 1939 E.D.L. 91 at pp. 97 - 8; R v Moshesh, 1948 (1) SA 681 at p. 683; R v John, 1931 S.A.L.J. 83; R v Thabeta, 1948 (3) SA 218.

C Such prejudice amounts to an 'injury' within the meaning of sec. 14 of Act 31 of 1917. 'Injury' in this context does not mean damage which is actionable in a civil court. The Dutch version is 'schade', which means the same as 'nadeel': van Dale's Groot Woordenboek, 7th ed., p. 1,567. Sec. 19 of Transvaal Law 9 of 1866 used the word 'nadeel'; sec. 10 of D Chap. VIII of the O.F.S. Wetboek used the word 'schade'. Both were derived from sec. 15 of Cape Ordinance, 40 of 1828, which is substantially the same as sec. 14 of Act 31 of 1917. Both 'schade' and 'nadeel' are used in Dutch to denote prejudice in the crime of fraud: van der Linden, 2.6.4; Huber, 6.7.1; R v Armstrong, 1917 T.P.D. 145.

E Such words of general import must be construed with reference to the policy of the statute. The purpose of sec. 14 is twofold: On the one hand to reduce the temptation offered to aggrieved persons to take take the law into their own hands; and on the other hand to curb the activities of the busybody who is in no way affected by the commission of the offence. See Attorney-General v van der Merwe and Borman, 1946 F O.P.D. 197 at pp. 200 - 1; Solomon v The Magistrate, Pretoria, 1950 (3) SA 603 at p. 609. The question whether the prosecutor could recover damages in a civil court is unimportant: Solomon's case, supra.

This Court did not intend, in Mullins and Meyer v Pearlman, 1917 T.P.D. 639, to lay down a contrary rule of general application. The only injury G which the prosecutor could possibly have suffered in the circumstances of that case was pecuniary loss. The Court was not concerned with the question whether a private prosecutor who alleges a fraud must show that he has suffered actionable loss. Cf. Solomon's case, supra at pp. 608 - 9. The criminal law protects some interests for an infringement of which no civil remedy lies: See Salmond on Torts, 11th ed., p. 605. The interest of the prosecutor in the issue of the trial lies not in the H recovery of damages or other civil relief but in the conviction of a person who has wronged him: Solomon's case, supra. On that test the magistrate was correct in dismissing Ellis' plea that Visser had no title to prosecute.

Williamson, Q.C., in reply.

Cur adv vult.

1954 (2) SA p433

Postea (December 4th).

Judgment

Blackwell, J.:

Appellant in this matter was the defendant in a private prosecution at the instance of respondent. The indictment alleged that the accused was the general secretary of the Mine Workers Union, a duly registered trade union. At all material times, the accused with the prosecutor and one R. P. Erasmus were members of a sub-committee A appointed by the Union to negotiate for the purchase of a building known as Trans Africa House. On November 24, 1949, accused wrongfully, unlawfully and with intent to defraud gave out to Erasmus and the prosecutor, and through them to the Union, that the lowest price that the seller would accept was £176,000, whereas the accused well knew that B the seller was in fact ready to accept a much lower sum. In consequence of this pretence, the Union to its prejudice paid £176,000 for the building. In the alternate, the offence alleged, upon the same background, is that the seller and the accused had made a corrupt agreement that if the Union purchased the building, the seller would give the accused a secret reward, that it was the duty of the accused to C disclose this fact to Erasmus and the prosecutor and through them to the Union, that he failed to do so and by reason of this fraudulent concealment, Erasmus and the prosecutor, and through them the Union, were induced to purchase the building, to their prejudice, at the price of £176,000.

Before pleading on the merits, the accused pleaded that the prosecutor had no title to prosecute, and issue was joined on this plea in terms of D sec. 164 of the Code. Thereupon prosecuting counsel briefly outlined the circumstances leading up to the prosecution and called the prosecutor to show that he was such a person as was entitled to institute a private prosecution within the terms of sec. 14 of the Code which reads:

In all cases where the Attorney-General declines to prosecute for an alleged offence any private party, who can show some substantial and E peculiar interest in the issue of the trial arising out of some injury which he individually has suffered by the commission of the offence, may prosecute in any court competent to try the offence, the person alleged to have committed it.

A summary of the history of events leading to the prosecution as given to the presiding regional magistrate is as follows. Ellis, the accused, was, prior to 1948, one of the leaders of a body representing members of F the Union, who were dissatisfied with the conduct of the Union's affairs by the persons then in charge. Ultimately, the action committee representing the dissidents succeeded in ousting the former committee from control, and Ellis became the new general secretary of the Union in 1949, with Visser, the present respondent, as president. There was due to the Union a balance of £120,000 from a gift of half a million pounds G voted to the Union in 1944 by the Chamber of Mines. In June, 1949, it was decided that this money be utilized for purchasing a building to house the Union's offices. In October, 1949, a subcommittee was appointed to negotiate for the purchase of a building. This committee consisted of the respondent, Visser, the general secretary, the accused, and two other members, van Rensburg and Erasmus. The Union, apparently, with little or no enquiry into the matter, and no business sense H whatever, were willing to pay for this building the sum of £185,000. The building belonged to a company in which Dr. and Mrs. Luttig were the principal shareholders, and they had been willing all along to sell at £140,000, a figure which would have returned them something like £30,000 profit on their investment. But the Luttigs had given an option to a certain Dr. Kritzinger at

1954 (2) SA p434

Blackwell J

£153,000, and it was he who was demanding £185,000 from the Union. Eventually the sub-committee met Dr. Kritzinger and after some bargaining, the price of £176,000 was agreed on.

At a later stage, rumours became current that there had been secret and fraudulent dealings in connection with the purchase of this building and A the Union appointed a commission under Professor Hoek of Pretoria to enquire into the matter. This commission found itself unable to function with complete efficiency because of its lack of statutory powers, and eventually a...