Phillips v Botha

• Jurisdiction: South Africa
• Judge: Hefer JA, Hoexter JA, Howie JA, Schutz JA and Ngoepe AJA
• Judgment Date: 26 November 1998
• Citation: 1999 (1) SACR 1 (SCA)
• Hearing Date: 02 November 1998
• Counsel: P J Olsen SC and D Phillips for the appellantB C Bredenkamp SC and MJ Schwartz for the respondent
• Court: Supreme Court of Appeal

Hoexter JA:

This is a civil appeal. The appellant is the owner of a casino in Rivonia. The respondent is an attorney in Florida. Following upon the issue by the H Attorney - General of the Witwatersrand of a certificate of nolle prosequi, the appellant in terms of s 7(1) of the Criminal Procedure Act 51 of 1977 ('the Act') instituted and conducted in the regional court for the Southern Transvaal Division a private prosecution for fraud against respondent. I

The respondent pleaded not guilty to the charge. The appellant himself and two other persons testified in support of the charge. At the close of the prosecution's case counsel for the respondent applied for the discharge of his client. The application was granted and the respondent was found not guilty and discharged. Against the order of the regional J

Hoexter JA

A court the appellant appealed unsuccessfully to the Witwatersrand Local Division. The judgment of the Court a quo (delivered by Heher J with the concurrence of M J Strydom J) has been reported: Phillips v Botha 1995 (3) SA 948 (W). With leave of the Chief Justice the appellant now appeals to this Court.

B The respondent has a current account ('his personal account') the at President Street, Johannesburg branch of the Trust Bank. At the Midrand branch of the same bank the respondent's firm has an account ('the firm's account').

Late in the evening of 21 July 1993 the respondent visited the casino and there, until the small hours of the following morning, he gambled. In order to gamble he C bought gambling counters in exchange for which the casino was prepared to accept from the respondent a series of cheques. At the gambling table luck deserted the respondent. He lost steadily and, in the end, rather heavily. When his gambling debt to the casino reached the figure of R105 000 the appellant refused D him further credit. By that stage the respondent had successively given to the casino in all no less than 22 cash cheques drawn by him. Twenty-one of these cheques (20 for R2 500 each, and one for R50 000) were drawn on his personal account. The remaining cheque (for R5 000) was drawn on his firm's account.

On the morning of 22 July 1993 the respondent instructed Trust Bank to stop payment of the aforesaid 22 cheques. Upon presentment for payment each cheque E was returned by Trust Bank marked 'payment stopped'. On 22 July 1993 the respondent's personal account was in credit to the extent of R5 488,45 and no overdraft facilities were available to him.

The criminal summons against the respondent charged him with the commission of 22 counts (or alternatively a single count) of fraud. The annexure to the F summons set forth particulars of the 22 cheques which during the night of 21 July and the early morning of 22 July 1993 the respondent had delivered to the appellant at the casino. The summons alleged that when he so gave each cheque to the appellant the respondent, with intent to defraud, represented that it was his G honest intention that upon presentation each cheque should be met and that he had no intention of countermanding payment thereof. By such false representation, so alleged the summons, the appellant was induced, to his loss and prejudice, to deliver to the respondent gambling counters ('chips') to the value of the amount of each cheque, whereas in fact the respondent did not believe that the cheques would be met on presentation and intended to countermand H payment thereof.

It is necessary to examine in some detail the testimony given by the appellant in the regional court. At the time of the trial the appellant was 36 years of age. He I described himself as a businessman who had owned the casino for some five or six years. He holds the degree of Bachelor of Commerce and Master of Business Administration. When he accepted the 22 cheques from the respondent, so testified the appellant, he did not know that gambling debts are legally unenforceable. J Of this fact he became aware only when, after the payment of the cheques had been stopped, he consulted his attorney.

Hoexter JA

The appellant dealt with the 22 cheques as follows. He told the trial court that he had earlier negotiated with one Robinson to buy a motor vehicle from him for A R70 000. In settlement of the price he delivered to Robinson nine of the cheques (being eight cheques for R2 500 each, and one cheque for R50 000 = R70 000). It was common cause that in respect of these nine cheques Robinson instituted an action for provisional sentence against the respondent. The action was resisted B by the respondent and in the result provisional sentence was refused. By consent copies of the papers in the provisional sentence proceedings were handed in as exhibits at the private prosecution.

The appellant discovered that the respondent had countermanded payment when on 22 July 1993 one of his employees presented the remaining 13 cheques for C payment across the counter. Thereupon the appellant telephoned the respondent and demanded an explanation. Much to the appellant's annoyance the respondent's reaction was 'You are not going to get paid; get your attorney to phone me'.

Thereafter, and in the hope of avoiding the private prosecution, the respondent made a number of unsuccessful settlement approaches to the appellant. From his D evidence in cross-examination it appears that the appellant anticipated such overtures. In this connection he said:

'The cheques . . . that I presented were stopped. Negotiations . . . or interaction took place. I phoned Mr Botha, he said: "Get your attorney to phone me." I then started asking around and I found out from other casino operators that Mr Pierre Botha is well known on the circuit and this is a common modus operandi of his, and . . . one or two casino operators said look . . . in a few E days' time he will come and pay you and . . . he will strike a deal . . .'

The appellant testified that the respondent had made him a number of different offers. At one stage the respondent offered to pay him R150 000, whereupon the appellant told him 'You have to do better than that'. At a later stage (so the appellant conceded after some hedging) it was 'possible' that the respondent had F offered to increase his offer to R290 000. The last figure mentioned was no less than R310 000. I quote again from the cross-examination:

' . . . to come back to the last time that he (the respondent) saw you, the amount actually came to R310 000 and you said: "If you pay me R310 000 I will let you off the hook"? - That is G possible.'

A document which admittedly featured in the settlement discussions (exh J) was handed in at the trial. It contains calculations in the appellant's own hand. The figures at the foot of exh J reflects a total of R310 000. When the respondent's counsel refreshed the appellant's memory by reference to the contents of exh J he H was constrained to concede its correctness. The appellant went on to explain that after the settlement talks involving the sum of R310 000 the respondent had undertaken to 'get back' to him, but that the respondent had failed to do so. The appellant was also cross-examined on a conversation between the parties during I the course of the trial itself. The appellant admitted that in the course thereof he had informed the respondent that he (the appellant) had contacted 'The Star' and 'Beeld' newspapers; and that he also telephoned Mr Prinsloo of the Law Society. J

Hoexter JA

A The appellant told the trial court that he had embarked upon the private prosecution not in an attempt to extract money from the respondent, but in order to teach him a lesson:

'I want to show him that the law applies to everybody . . . and I want to show him that a man who is expected to uphold the law . . . has to obey the law as well. That is my...