R v Schreuder

• Jurisdiction: South Africa
• Judge: De Villiers J and Botha J
• Judgment Date: 06 December 1956
• Citation: 1957 (4) SA 27 (O)
• Court: Orange Free State Provincial Division

G De Villiers and Botha, JJ.:

The appellant appeared in the regional magistrate's court, Bloemfontein, on a charge containing 14 counts in all: Counts 1 to 5 each has a main, a first alternative, a second alternative, and a third alternative charge whereas count 11 has a main, first alternative and a second alternative charge. He pleaded not guilty to all the charges, but during the trial changed his plea on count 10 to H one of guilty. The magistrate, after a protracted trial, found appellant guilty on the main charges in counts 1, 2 and 4, the third alternative charges in counts 5 and 6, and on counts 10, 12, 13 and 14. He acquitted appellant on counts 3, 7, 8, 9 and 11. The sentences imposed were the following: In respect of the main charges in counts 1, 2 and 4 six months' imprisonment with compulsory labour on each count; in

De Villiers and Botha, JJ

respect of the third alternative charges in counts 5 and 6 taken together six months' imprisonment with compulsory labour; in respect of count 10 six months' imprisonment with compulsory labour; in respect of A counts 12, 13 and 14 taken together a fine of £150 or three months' imprisonment with compulsory labour: appellant now appeals against the aforesaid convictions and sentences in counts 1, 2, 4, 5, 6, 12, 13 and 14 and against the sentence on count 10. It is proposed to deal with each count separately.

[The learned Judge then proceeded to deal with certain of the counts, not material to this report, and proceeded.]

B This is a convenient stage to deal with the third alternative charges to counts 1, 2, 4, 5 and 6. The third alternative charge to count one alleges:

'That the accused is guilty of the offence of contravening sec. 135 (3) (a) read with sec. 143 (1) (c) of Act 24 of 1936, as amended, and further read with secs. 182 and 185 of Act 46 of 1926, as amended and C further read with sec. 384 of Act 31 of 1917, as amended:

In that whereas -

(i)

the company 'Vaptor Coolers (Pty.) Ltd.' was at all times relevant to this charge a registered company in terms of Act 46 of 1926, as amended;

(ii)

the accused was at all times relevant to this charge a servant, agent or manager having the sole or practical control of the affairs of his employer or principal, namely the above-mentioned company;

(iii)

the estate of the said company was liquidated provisionally on D the 4th December, 1952, and is or was unable to satisfy all its liabilities in full;

Now therefore the accused as herein described, did prior to the sequestration (sic) of the said estate, to wit, during or about the period February, 1952, to March, 1952, and at Bloemfontein, in the afore-mentioned district and division, wrongfully and unlawfully contract with Miss E. A. McGill and/or Dr. McGill and/or the person or firm or company known as Hugo A. Schreuder and/or the person or firm or company known as Hugo A. Schreuder (Pty.) Ltd., a debt of £15 or more, E namely a debt of £720 or thereabout, without any reasonable expectation of being able to discharge the said debt.'

The charge against appellant is essentially one of contravening sec. 135 (3) (a) of the Insolvency Act, 1936, which provides that -

'(3) An insolvent shall be guilty of an offence and liable to imprisonment for a period not exceeding two years if, prior to the sequestration of his estate - (a) he contracted any debt of fifteen G pounds or more or debts to the aggregate of fifty pounds or more, without any reasonable expectation of being able to discharge such debt or debts.'

It is not alleged that the appellant contracted the said debt in his personal capacity but as

'a servant, agent or manager having the sole or practical control of the affairs of his employer or principal'

G namely, the company known as Vaptor Coolers (Pty.) Ltd. His liability under sec. 135 (3) (a) of Act 24 of 1936 is therefore alleged to be based on either (1) sec. 143 (1) (c) of Act 24 of 1936 as read with sec. 182 of Act 46 of 1926: or (2) sec. 185 of Act 46 of 1926.

Sec. 143 (1) (c) of Act 24 of 1936 provides that -

'(1) A person who -

(c)

as a servant or agent has or had the sole or practical control of H any property or of the affairs of his employer or principal and who does or omits to do in relation to that property or to the affairs of his employer or principal or of the insolvent estate of his former employer or principal, any act which, if done or omitted by him in the like circumstances in relation to his own property or affairs or to any property belonging to, or the affairs of his insolvent estate, would have constituted an offence under this Act, shall be deemed to have committed that offence.'

and sec. 182 of Act 46 of 1926 provides that -

'In the case of every winding-up of a company unable to pay its debts the

De Villiers and Botha, JJ

provisions of the law relating to insolvent estates shall, in so far as they are applicable, be applied mutatis mutandis in respect of any matter not specially provided for by this Act or the rules framed under sec. 220.'

Sec. 185 of Act 46 of 1926 Is to the Following Effect

'If any person who is or has been a director, manager, secretary or other officer of a company, which is being or has been wound up under the provisions of this Act and which is or was unable to satisfy all its A liabilities in full, has committed any act or made any omission in relation to any assets, books or documents, business or affairs of such company, which, if such act had been committed or such omission made by a person whose estate was sequestrated on the date upon which the winding-up of such company commenced, in relation to any assets, books or documents, business or affairs, of himself or of his estate, would have constituted an offence under the law relating to insolvent estates, such past or present director, manager, secretary or other officer shall be guilty of such offence and liable on conviction to the penalties B provided therefor in the same manner as if his own estate had been sequestrated on the date upon which the winding-up of such company commenced, and as if he had committed such act or made such omission in relation to assets, books or documents, business or affairs of himself or his estate . . ..'

The first question that arises for consideration is whether sec. 143 (1) C (c) of Act 24 of 1936 as read with sec. 182 of Act 46 of 1926 renders a servant or agent of a company liable to prosecution for a contravention of sec. 135 (3) (a) of Act 24 of 1936. By his reference in the charge to sec. 182 of Act 46 of 1926, the draftsman obviously thought that that section incorporated into the Companies Act, 1926, the criminal provisions of the Insolvency Act, 1936. If that were so, a servant or D agent of a company would clearly have been liable...