Phillips v Botha

• Jurisdiction: South Africa
• Citation: 1995 (3) SA 948 (W)

Phillips v Botha
1995 (3) SA 948 (W)

1995 (3) SA p948

Citation	1995 (3) SA 948 (W)
Case No	JAP 0481/94
Court	Witwatersrand Local Division
Judge	M J Strydom J and Heher J
Heard	February 15, 1995
Judgment	April 5, 1995

Flynote : Sleutelwoorde

Criminal procedure — The prosecution — Private prosecution — Locus standi of private prosecutor — In terms of s 7 of the Criminal Procedure Act 51 G of 1977 private prosecutor has to establish that he has some substantial and peculiar interest in the issue of the trial which arises from an injury which was caused to him by the commission of the offence — He does not have to establish the existence of a right of redress in the civil courts — Where accused disputes the prosecutor's interest in the issue, H such issue more properly raised under s 106(1)(h) as a plea that the prosecutor has no title to prosecute — Failure to plead to the charge under that section does not prevent the accused from raising the issue later.

Criminal procedure — The prosecution — Private prosecution — Locus standi of private prosecutor — Must be a causal connection between the 'injury' I suffered by the private prosecutor and the commission of the offence — Private prosecution for fraud where accused had stopped payment of cheques which he had issued in payment for gambling chips at an illegal casino — Fraudulent representation that cheques would be met not having caused loss to appellant as it had merely induced appellant to provide respondent with some gambling chips which had no inherent value — Private prosecutor J lacking locus standi.

1995 (3) SA p949

Headnote : Kopnota

A In order to establish a right to prosecute privately under s 7 of the Criminal Procedure Act 51 of 1977 for an alleged offence which the Attorney-General has declined to prosecute, the prosecutor has to establish that he has some substantial and peculiar interest in the issue of the trial and that it arises out of an injury which was caused to him by the commission of that offence. (At 951D-F.) In general, he does not have to establish the existence of a right of redress in the civil courts and its absence will not, per se, destroy his title to prosecute where he has established his interest and causally connected injury. (At 961H-I/J, B summarised.)

Where the accused in a private prosecution disputes whether the prosecutor has a substantial and peculiar interest in the issue of the trial arising out of some injury consequent on the offence, such issue is more properly raised under s 106(1)(h) of the Act as a plea that the prosecutor has no title to prosecute. However, the failure to plead to the charge under that section does not prevent the accused from raising the issue later, since absence of title in the prosecutor is fundamental to the proceedings C and constitutes a jurisdictional void which cannot be filled by inaction or even waiver. (At 951F-G/H.)

In terms of s 7(1)(a) of the Criminal Procedure Act 51 of 1977, the appellant privately prosecuted the respondent in a magistrate's court on 22 alleged counts of fraud arising from respondent having stopped payment of 22 cheques with which he paid for chips to gamble with in appellant's casino. It was common cause that, as the gambling activities at the D casino contravened the Gambling Act 51 of 1965, the conduct of both the appellant and respondent was prima facie illegal and that appellant had no legal right to enforce payment of the debts. The appellant established prima facie that the respondent knew, when he went to the casino, that his gambling debts would be legally unenforceable against him and that he went with the mental reservation that, should it prove desirable for him to do so, he could cause the cheques to be stopped. At the end of the prosecution case, the magistrate granted an application for the discharge E of the respondent on the ground that appellant had failed to prove that he had a 'substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the offence' within the meaning of s 7(1)(a) of the Criminal Procedure Act. The magistrate held that, as the appellant had no right to claim payment of gambling debts in the civil courts, he had no title to F prosecute. The magistrate relied heavily on the dictum in Mullins and Meyer v Pearlman 1917 TPD 639 at 643 that '(i)t is, I think, clear that where no right of civil redress exists the right of private prosecution would cease'. On appeal, the Court held

(a) that the magistrate had erred in discharging the respondent on this ground, in that the dictum, read in its context, did not make a right of civil redress a prerequisite of the appellant's right to prosecute and that s 7(1)(a) contained no reference to a right of civil redress (at 961G/H-H); further

G (b) that the appellant had a legal right not to be made the victim of a fraudulent misrepresentation that the respondent intended that the cheques would and could be met, as had been made by the respondent, and that the infringement of that right gave appellant 'a substantial and peculiar interest in the issue of the trial' within the meaning of s 7(1) (even though appellant was debarred from claiming relief on such infringement in the civil courts) and to that extent appellant H had established his title to prosecute (at 961H/I-I/J); however,

(c) That a causal connection between the 'injury' suffered by the private prosecutor and the commission of the offence was a sine qua non of the locus standi of the prosecutor; that here the injury was the financial loss appellant had suffered, which was due to appellant's legal inability to enforce the gambling debts and not due to the offence, namely the fraudulent representation that the cheques could and would be met, a representation which had caused no loss to appellant because it had merely induced appellant to provide I respondent with some gambling chips which had no inherent value; and that therefore appellant had not established the necessary causal connection between the injury and the commission of the offence (at 962D-G, paraphrased); accordingly,

(d) that for the reasons given in para (c) the magistrate had correctly discharged the respondent and the appeal had to be dismissed with costs (at 962G); and, in any event, the fact that these gambling debts were illegal and not merely unenforceable in the civil courts J meant that they did not give rise even

1995 (3) SA p950

A to natural obligations and that the respondent's fraud did not result in an injury to the appellant which the law recognised; that therefore the magistrate was correct in his other finding that appellant had not suffered an injury as contemplated by s 7(1), so that for this reason alone the appeal had to be dismissed with costs. (At 963B/C-C, 963H/I, 964A-B and 964B.) B

Case Information

Appeal from a decision in a magistrate's court discharging an accused in a private prosecution. The facts appear from the reasons for judgment.

G Borchers for the appellant.

B C Bredenkamp SC for the respondent.

Cur adv vult.

Postea (April 5). C

Judgment

Heher J:

The appellant instituted and conducted a private prosecution for fraud against the respondent in the magistrate's court.

D The charge sheet framed the allegations against the respondent as follows:

'The accused is guilty of 22 counts of the crime of fraud, alternatively one count of the crime of fraud, in that during the night of 21 July 1993 and in the early morning of 22 July 1993 at Rivonia in the regional division of the Southern Transvaal

(a)

E the accused delivered to Andrew Lionel Phillips the following cheques (the count number to which each cheque relates following in brackets):

(i)

twenty cheques for R2 500 each, drawn on the accused's banking account at the Trust Bank, President Street, Johannesburg F branch, numbered and dated as follows:

(Here followed details of 20 cheques dated variously 18, 19, 20, 21, 22 and 23 July 1993.)

(ii)

a cheque for R50 000 drawn on the accused's said banking account, numbered 2160 and dated 22 July 1993 (count 21);

(iii)

a cheque for R5 000 drawn on the banking account of Scholtz, Botha and Botes at the Midrand branch of the Trust Bank, G numbered 1900 and dated 22 July 1993 (count 22);

(b)

at the time he delivered each cheque to Phillips, the accused falsely and with intent to defraud pretended to Phillips that it was his (the accused's) unconditional honest intention that each H cheque should be, and that he had no reason to believe that each cheque would not be, honoured upon presentation thereof to the bank upon which it was drawn and that he had no intention of countermanding payment of any of those cheques;

(c)

by such false representation and on each occasion that he delivered a cheque to Phillips, the accused induced Phillips, to I the latter's loss and prejudice, actual or potential, to deliver to the accused casino gaming counters (known as chips) with a face value corresponding to the amount of the cheque or to allow the accused gambling facilities up to an amount equal to that of the cheque;

whereas in truth, when the accused gave out and pretended on each occasion as aforesaid, he did not have the unconditional honest intention referred J to above, he did not have good reason to believe that each such

1995 (3) SA p951

Heher J

A cheque would be met on presentation and either intended to countermand, or contemplated the possibility of countermanding, payment of the relevant cheque.

Therefore, in respect of each separate cheque, the accused is guilty of the crime of fraud, alternatively, if the accused's actions constitute one course of conduct, the accused is guilty of one count of B the crime of fraud.'

The respondent pleaded...