Ex parte the Minister of Justice: In re Rex v Jacobson & Levy

• Jurisdiction: South Africa
• Judge: Wessels ACJ, Stratford JA, Roos JA and Hutton AJA
• Judgment Date: 17 September 1931
• Citation: 1931 AD 466
• Hearing Date: 08 September 1931
• Court: Appellate Division

Wessels, A.C.J.:

In terms of sec. 388 of Act 31 of 1917 as amended by sec. 45 of Act 39 of 1926 the Minister of Justice has stated the following case to this Court: -

"(1) On the 25th October 1928, one Phillip Jacobson and one Louis Levy were charged on two counts before a magistrate with contraventions of the Insolvency Law, the first count being that they did contravene sec. 139 (1) of Act No. 32 of 1916, as

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amended by Act No. 29 of 1926. (2) Having been convicted and sentenced on the said count, the said Jacobson and Levy appealed to the Transvaal Provincial Division of the Supreme Court of South Africa and the said conviction and sentence were thereupon confirmed for the reasons given in the official reports of the said Division - 1929 TPD at page 263. (3) In the said reasons it is decided that (a) in order to discharge the burden of proof placed upon the appellants by the proviso to the above section it was sufficient if they furnished prima facie proof on the issue and that it was not incumbent upon them to satisfy the issue beyond a reasonable doubt; (b) the words" so as to cause an excess of his liabilities over his assets or a greater excess of his liabilities over his assets than existed prior to the making of the disposition," in sec. 139 (1.) of Act No. 32 of 1916 as amended by Act No. 29 of 1926 should properly be read to mean 'so as to increase the proportion of the excess of his liabilities over the assets'; all of which will more fully appear from the official report of the said decision. (4) On the 25th February, 1931, the said words set out in (b) above were considered by the Orange Free State Provincial Division of the Supreme Court of South Africa in the case of Ackerman v Rex., when a different conclusion was arrived at. (5) The Minister of Justice, having a doubt as to the correctness of the decision of the Transvaal Provincial Division in Rex v Jacobson & Levy desires to obtain the ruling of this Honourable Court on the matters of law therein decided."

There are therefore two questions which this Court is called upon to decide, viz.: 1. What is the effect in law of a provision in a statute whereby the burden of proof is placed on, an accused person, Is it sufficient for the accused to furnish prima facie proof on the issue or must he satisfy the Court upon the issue beyond a reasonable doubt? 2. There are two conflicting decisions as to the meaning of sec. 139 (1) of Act 32 of 1916 as amended by Act 29 of 1926, sec. 53 (1). In the case of Rex v Jacobson & Levy (1929 TPD 270) the Court held that the words in the section "so as to cause in excess of his liabilities over his assets or a greater excess of his liabilities over his assets than existed prior to the making of the disposition" mean "so as to increase the proportion of the excess of the liabilities over his assets." In the case of Ackerman

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v Rex (unreported)[*] (1931 OPD 65.) the Orange Free State Provincial Division held that "these words are confessedly capable of one meaning only, viz., that the disposition causes an actual excess which did not exist before. Here the word excess cannot mean proportion but must mean a quantitative excess, that is to say, that the disposition causes the liabilities to be greater than the value of the assets, in other words that it causes a deficiency." The Orange Free State Provincial Division refused to accept the interpretation placed, upon the section by the Transvaal Provincial Division.

I shall now deal with the first question. One of the questions the Court was called upon to decide in Rex v Jacsobson & Levy was whether the accused intended to prefer one of their creditors above the others and thereby contravene sec. 53 (1) of Act 29 of 1926 which took the place of sec. 139 (3) of Act 32 of 1916. The section provides that if a disposition of his property by the accused had the effect of preferring or was calculated to prefer one or more creditors above the others or any other, then unless the contrary be proved the disposition shall be deemed to have been made with the intention of preferring such creditor or creditors above the others or any other. The Court decided as a fact that the accused did not make out a prima facie case that they did not intend to prefer. It was therefore not necessary for the Court to consider what the exact effect was of placing upon an accused the statutory burden of proving that he had no intent. The Court, however, adopted the opinion of FEETHAM and SOLOMON, JJ., in Qoboka & Mtisle v Rex (1929 T.P.D. 35) that when the burden of an issue is upon the accused he is not in general called upon to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeeds in proving a prima facie case, for then the burden of such issue is shifted to the prosecution which still has to discharge its original and major onus that never shifts, i.e., that of establishing on the whole case guilt beyond a reasonable doubt. It is a trite rule of law that if an accused is charged with a crime, whether it be a common law crime or a crime created by statute, the onus is on the Crown to prove the charge. The onus never shifts; it is always on the Crown, except where the Legislature thinks fit to lay the onus of proving certain facts on

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the accused, then it is the duty of the accused to discharge that particular onus. In the section we are dealing with it is the duty of the Crown to prove: (1) That the estate of the accused was sequestrated or assigned; (2) that prior to his insolvency or assignment he made a disposition of a part of his property; (3) that this disposition caused an excess of his liabilities over his assets or a greater excess of his liabilities over his assets than existed prior to the making of the disposition; (4) that this disposition had the effect of preferring or was calculated to prefer one or more creditors above the others. When the Crown has proved this, there arises a presumption in law that the disposition was made with the intention of preferring such creditor or creditors above the others. It is, however, open to the accused to prove the contrary. He may adduce facts to prove that he had no intention to prefer one creditor above another. It is not enough for him to raise a doubt whether he did or did not intend to prefer, for to raise such a doubt is not proof to the contrary. "Unless the contrary is proved" means unless the accused establishes as a fact that he did not intend to prefer one creditor above another. He may produce evidence which, if accepted, raises a presumption in law that he had no such intention, and if the case stopped there he is entitled to an acquittal, but it will still be open to the Crown to show that this evidence is false or that it should be so qualified as to destroy...