R v Jurgens

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: De Wet J and Steyn J
• Judgment Date: 13 March 1953
• Citation: 1953 (2) SA 383 (T)
• Hearing Date: 09 March 1953

De Wet, J.:

The appellant was originally charged with seven contraventions of the Insolvency Act and on one count of fraud but after a preparatory examination had been concluded and after certain evidence had been led on remittal to a magistrate under increased jurisdiction he A pleaded guilty to three contraventions of the Insolvency Act and to the charge of fraud. The first count alleged a failure to keep proper records of his transactions, the second that within two years preceding his sequestration he misrepresented the value of his assets to wit that he was the owner of nett assets to the value of £31,000, whereas in fact B he owned considerably less; the third count alleged that he obtained a loan of £100 after sequestration without disclosing the fact that he was sequestrated; the fourth that he negotiated nine promissory notes for £100 each signed by himself and endorsed by one Mare, obtaining a cash advance on the strength of certain misrepresentations C in regard to the person who had endorsed the notes.

He was sentenced to three months' imprisonment with compulsory labour on each count, half the sentence being suspended for three years on condition that he is not again convicted of fraud.

D Sentence was passed on the 21st January, 1953. Defendant was released on his own recognisances until 26th January, it being ordered that notice of appeal should be filed on or before the latter date. Notice of appeal was duly filed on the 26th January the only ground of appeal being that the sentence was excessive. Thereafter appellant was again released pending the conclusion of the appeal.

E When the appeal was called on the 2nd March, 1953. Mr. Melamet, for the appellant, asked for leave to withdraw the appeal. This application was opposed by the Crown.

The sequence of events after the noting of the appeal was as follows: F The Court is informed by Mr. Melamet that counsel was briefed for opinion (presumably after a copy of the record was obtained) and on the 17th February advised that this appeal should be abandoned and in consultation with the accused it was decided to act on this advice. But before a notice of withdrawal was served, the Attorney-General on the G 25th February telephonically informed appellant's attorney that the appeal would be heard on the 2nd March and on the 26th February served a notice intimating that an increase of sentence would be asked for at the hearing of the appeal. A notice withdrawing the appeal was served on the clerk of the court on the 27th February. The same notice was served on the Registrar and on the Attorney-General on the 28th February.

H The questions which arise for decision are firstly whether the Court has a discretion to refuse leave for the appeal to be withdrawn and secondly whether this discretion should be exercised adversely to the accused.

In terms of sec. 103 (3) of Act 32 of 1944 an appeal must be noted and prosecuted within the period and in the manner prescribed by the rules. The 'rules' according to the definition in

De Wet J

sec. 1 means the rules in the Schedule to the Act. The only relevant rule is No. 63 which provides for the preparation of the record and transmission to the Registrar within the prescribed period. What happens A thereafter in this Division is dictated not by any Rule of Court but by a long established...