Rex v Alexander and Others

• Jurisdiction: South Africa
• Citation: 1936 AD 445

Rex Respondent v Alexander and Others Appellants
1936 AD 445

1936 AD p445

Citation	1936 AD 445
Court	Appellate Division
Judge	Wessels CJ, Curlewis JA, Stratford JA, Beyers JA and De Villiers JA
Heard	April 21, 1936; April 22, 1936; April 23, 1936; April 24, 1936; April 27, 1936; April 28, 1936
Judgment	May 4, 1936

Flynote : Sleutelwoorde

Criminal procedure — Indictment — Variance between evidence and charge — Fraud — Verdict upon facts not alleged in indictment — Act 31 of 1917, section 225 (3).

Headnote : Kopnota

It is essential that an indictment, especially one containing charges under the crimen falsi, should allege in clear and unmistakable language what the charges are which the accused has to meet.

An indictment for fraud alleged that the accused, the secretary and directors of a company, had a mandate from the company to buy certain options on farms; that the secretary bought the options in collusion with the directors from option holders for the company and then fraudulently sold them to the company at an enhanced price retaining for themselves portion of such price. The court below found that the accused had no mandate from the company to purchase the options, but found the directors guilty of fraud by concealing from the company the fact that they had received a large parcel of shares from the secretary as a bribe to induce the company to acquire the option. The secretary was found guilty of being particeps criminis and the instigator of the fraud.

Held, on appeal, that there was no charge in the indictment to the effect that the secretary acted fraudulently in bribing the directors or that the directors received a bribe from him; that section 225 (3) of Act 31 of 1917 could not be invoked as the accused had been prejudiced by the variance between the evidence and the charge and that the conviction should be set aside.

The case of Rex v Mahomed (1929 AD 58), applied.

1936 AD p446

Case Information

Appeal on certain questions of law reserved and a special entry arising out of the judgment of SOLOMON, J., sitting with assessors in the Witwatersrand Local Division. The indictment as finally amended, upon which the appellants had been tried, was as follows.

Alexander Simpson Welsh, in his capacity of Attorney-General of the Transvaal Province, who as such prosecutes for and on behalf of His Majesty the King, presents and informs the Court that (1) Bernard Alexander, (2) Meyer Lichtenstein, (3) Norman Martin Maplesden Wickee, (4) Julius Alexander, (5) William Oakley Thomas, and (6) Sir Johannes Gerard van Boeschoten, hereinafter collectively called the accused, are guilty of the crime of Falsity, and that Herbert Sheridan Mockford is guilty of the crime of Aiding and Abetting the accused in the commission of the crime of Falsity: In that

(1) Whereas at all material times the said Bernard Alexander, Wickee, Oakley Thomas, and van Boeschoten were the Directors of the Doornhoek Platinum Mines Ltd., later styled the Doornhoek Mines Ltd and hereinafter called the Company, the said Julius Alexander was an alternate Director of and solicitor to the Company, and the said Lichtenstein was secretary to the Company.

(2) And whereas from and after the 26th day of April, 1934, it was the purpose and intention of the Company to acquire options to purchase the mineral rights of gold-bearing farms in the Transvaal.

(3) And whereas on or about and between the 30th day of April and the 8th day of May, 1934, the said Lichtenstein purchased from a syndicate of persons options to purchase the mineral rights of certain farms in the district of Vereeniging for a consideration of 27,750 shares of 5s each in the Company.

(4) And whereas the said Lichtenstein in so purchasing acted in collusion with the other accused and with the intent, common to all the accused, that the said options should be sold to the Company to their profit.

(5) And whereas the Directors made payments amounting to some £600 in respect of option dues for the benefit of the Company.

(6) And whereas on or about the 11th May, 1934, the Directors of the Company resolved to convene a general meeting of the Company for the 18th, May, and did convene such meeting to consider the acquisition of the said options and in pursuance thereof to increase the capital of the Company.

(7) And whereas on the 17th May, 1934, the Directors resolved to purchase the said options for the Company from the said Mockford for a consideration of 120,000 shares of 5s each in the Company.

(8) And whereas at the said general meeting on the 18th May, 1934, the said Bernard Alexander, with the knowledge and consent of the other accused, represented to certain Van Geen, Irvine; Sumner and other shareholders then and there assembled in such meeting that the allotment of 120,000 shares of 5s each in the Company was required for the acquisition of the said options and the compensation of the Directors for the payment referred to in paragraph (5) above. "The representation, as herein set out, is the substance and effect of the speech of the said Bernard Alexander at the said general meeting as recorded in the Company's minutes."

(9) And whereas the Company in general meeting aforesaid approved of the allotment of 120,000 shares for the acquisition of the said options and the compensation of the Directors as aforesaid and of a proposal by the Directors to

1936 AD p447

increase the capital of the Company by 200,000 shares of 5s each, out of which to allot the said 120.000 shares.

(10) And whereas on or about the 4th day of June, 1934, the said Mockford entered into a fictitious and collusive agreement with the said Lichtenstein, whereby the said Lichtenstein purported to cede the said options to the said Mockford.

(11) And whereas the said Mockford on or about the 4th day of June, 1934, entered into an agreement with the Company whereby he ceded the said options to the Company for a consideration of 120.000 shares of 5s each in the Company.

(12) And whereas the said Mockford agreed with the other accused on the 5th June, 1934, to hold 92,250 of the said shares for and on behalf of the other accused.

(12a) And whereas of the said 92,250 shares 35,125 represented the profit of the said Lichtenstein in the re-sale to the Company and 57,125 profit to be divided between the other accused, the Directors of the Company.

(13) And whereas the said Mockford received and came into possession of the said 120,000 and thereafter between the 1st June and 21st September, 1934, sold the same, as to 92,250 thereof for the benefit of the other accused and distributed the proceeds between them.

(14) The accused did wrongfully unlawfully, falsely and with intent thereby to, defraud and to the prejudice of the Company and the shareholders thereof give out and pretend as set out in paragraph (8) hereof, and did wrongfully, unlawfully, falsely and with intent thereby to defraud, conceal and hide from the Company between 17th May and 4th June, 1934, and at Johannesburg in the district of Johannesburg, the facts set out in paragraphs 2, 3, 4, 5, 7, 10 and 12 (a) hereof which facts they well knew, and did by means of the said false pretence or fraudulent concealment or both such pretence and such fraudulent concealment induce the Company to the prejudice of the Company and the shareholders thereof to allot in consideration of the acquisition of the said options 120,000 shares of the Company of 5s each which number of shares were not required as represented by the accused but were in truth and in fact required as to 32,125, for the purpose of paying an unlawful profit to the said Lichtenstein, and, as to 57,125, for the purpose of paying an unlawful profit to the other accused.

And thus the accused did commit the crime of Falsity and the said Herbert Sheridan Mockford was then and there present Aiding and Abetting the accused the said crime to commit.

Secondly: That (1) Bernard Alexander, (2) Meyer Lichtenstein, (3) Norman Martin Maplesden Wickee, (4) Julius Alexander, (5) Herbert Sheridan Mockford, (6) William Oakley Thomas, and (7) Sir Johannes Gerard van Boeschoten, hereinafter collectively called the accused, are guilty of the crime of Falsity In that

(1) Whereas at all times material to this charge the said Bernard Alexander, Wickee, Oakley Thomas and van Boeschoten were Directors of the Doornhoek Platinum Mines Ltd., a company incorporated under the laws of the Union, and now styled the Doornhoek Mines Ltd., and hereinafter called the Company; and the said Julius Alexander was an alternate Director of and solicitor to the Company; and the said Lichtenstein was secretary to the Company up to the 14th June, 1934, and on and from that date a Director of the Company; and the said Mockford was on and from 21st June, 1934, a Director of the Company...

(2) And whereas those of the accused described above as Directors were the sole Directors of the Company at the times mentioned above.

(3) And whereas it was the purpose of the Company at all material times from

1936 AD p448

the 26th April, 1934, to acquire options to purchase mineral rights over gold bearing farms in the Transvaal.

(4) And whereas from the 8th June, 1934, the Directors of the Company had in contemplation the acquisition for the Company of options to purchase the mineral rights over certain gold-bearing farms in the district of Pretoria; and on or about 14th June, 1934, exercising the powers in that behalf of the Company resolved to increase the capital of the Company by 300,000 shares of 5s each for the purpose of such acquisition.

(5) And whereas on or about the 19th June, 1934, the said Meyer Lichtenstein purchased the said options as to some of them from the Capital Gold Mining Company Limited, and the Upper Reef Gold Mining Company Limited, and certain Sim and other persons associated with him for a consideration of £200 cash and...