Rex v Cilliers

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Stratford ACJ, De Villiers JA, De Wet JA and Watermeyer AJA
• Judgment Date: 28 April 1937
• Citation: 1937 AD 278

Stratford, A.C.J.:

The appellant, Cilliers, was tried at Johannesburg by a Court consisting of a Judge of the Transvaal Provincial

Stratford, A.C.J.

Division and two assessors on a charge of defeating the ends of justice. He was convicted and sentenced to imprisonment with hard labour for 5 years. After sentence at the request of counsel for the appellant two questions of law were reserved under sec. 372 of the Criminal Procedure and Evidence Act, No. 31 of 1917:-

"(1) Whether there was any legal evidence to support the finding of the Court that the accused was guilty as found; and

"(2) whether the facts found entitled the Court to convict the accused of the charge as alleged in the indictment."

There was also a special entry, but the question of irregularity raised therein was not seriously argued, and in any event on the view we take of the first point of law reserved it is unnecessary to discuss it.

Mr. Ramsbottom, for the appellant, quite properly in my opinion, addressed us first on the second question reserved. On this question the material allegations in the indictment are the following:-

The appellant with four others (called hereinafter the accused) are all or some of them guilty of the crime of defeating the ends of justice.

In that between the 1st August and 31st December, 1932 . . . the accused (one, some or all) did . . . unlawfully conspire with Opperman and Basson to defeat the ends of justice and in pursuance of this conspiracy did between the lot and 28th August, 1932 (one, some or all) . . . corruptly with intent to defeat the ends of justice instigate . . . Opperman and Basson to trap Abelson (proprietor of a bottle store) by hook or by crook and cause him to be fined not less than £5 and in pursuance of this conspiracy Opperman and Basson caused to be preferred in the magistrate's court Johannesburg against Abelson charges of contravening certain sections of Act 30 of 1928 (then follows the allegations against Abelson) by selling liquor to Goedvolk during unauthorised hours. The said Opperman, Basson and Goedvolk in pursuance of the said conspiracy falsely swore at the trial of Abelson that he (Abelson) had supplied liquor as alleged, and in consequence of such false evidence Abelson was convicted and the ends of justice were defeated.

Then follows further allegations of payments made by the other accused in pursuance of the said conspiracy to Opperman, Basson

Stratford, A.C.J.

and Van Niekerk and finally it is alleged that "in pursuance of the said conspiracy" the appellant made a payment or was responsible for a payment of £10 to Goedvolk.

The indictment then concludes "and thus the accused did all and each or one or more of them commit the crime of defeating the ends of justice." It will be observed that the manner in which it is alleged the crime of defeating the ends of justice was committed is clearly set out in this indictment commencing with the words "in that" and ending with the sentence "and thus the accused did, etc."

Before proceeding to analyse the indictment it is important to bear in mind that the word conspiracy used in it must be given its ordinary grammatical meaning and not the technical meaning it has in English criminal law.

The several acts of the accused which the Crown alleges constituted the offence are then the following:-

(1) Between 1st August and 31st December (these dates are relied upon by the Attorney-General) the accused conspired with Opperman and Basson to defeat the ends of justice. This particular is obviously insufficient to indicate the manner in which the crime was committed, it merely informs the accused that he is alleged to have acted in concert with others. So that the next allegation is an amplification of the first: it is -

(2) Between let and 28th August, 1932, the accused did all and each or one or more of them . . . unlawfully and with intent to defeat the ends of justice incite, etc., Opperman and Basson to trap one Abelson by hook or by crook and cause him to be fined.

Taking these two allegations together we have the complete terms of the conspiracy or agreement. It is clear then that the accused (including the appellant) were parties of the first part and Opperman and Basson were parties of the second part and that in terms of the agreement the latter were to do the acts it is subsequently alleged they did. They were the chosen and agreed instruments for obtaining a conviction against Abelson by hook or by crook. As the Attorney-General attached importance to the dates alleged in (1) (above), I pause here to contrast it with the dates alleged in (2). It seems to me obvious that the incitement alleged in (2) was part of the conspiracy or agreement alleged in (1). The dates must be made to correspond. In any event one cannot have the bare conspiracy later than the incitement.

Stratford, A.C.J.

So that the conspiracy must have been between the 1st and 28th August. Thenceforth Opperman and Basson were launched on their wicked course to obtain unscrupulously a conviction against Abelson. If this is the proper and sensible way of reading these two allegations the Attorney-General can get no assistance for his argument that the conspiracy is alleged to have taken place possibly as late as December, 1932.

The Indictment then proceeds to allege the consummation of the crime by those instigated to commit it:

(3) Opperman and Basson caused certain charges to be brought against Abelson and

(4) They and Goedvolk gave false evidence against Abelson with the result that he was convicted and fined.

The allegation of the crime and the manner of its commission are now complete and the inferential conclusion is stated "and the ends of Justice were defeated." The averments that follow are in effect further counts, they are:

(5) That the three Sandigs on certain dates made corrupt payments to Opperman and Basson.

(6) That the Appellant paid or caused to be paid a sum of money to Goedvolk for his assistance in obtaining the conviction of Abelson.

This last charge the Court expressly finds was not proved.

It is then manifest that the criminal responsibility of the Appellant for the acts of others alleged in (3), (4) and (5) is made in this Indictment to rest upon the averments in (1) and (2). If the latter was not found to be proved by the Court then (subject to the question of prejudice which I will discuss later) the Appellant cannot on this Indictment be held guilty of complicity in the sets alleged in (3), (4) and (5). Now it is of paramount importance to ascertain the proper import of the two allegations of conspiracy and instigation.

Conspiracy must be given its ordinary dictionary meaning viz., an agreement between two or more persona to do an evil act in concert (see Standard Dictionary). Criminal conspiracy in English law is shortly defined as an agreement of two or more persons to do an unlawful act or to de a lawful act by unlawful means (see Russell on Crimes, 8th ed., vol. I, p. 151). We have no such crime in our law; and an accessory before the act is with us a principal - a socius criminis, and an accessory after the act is not (see Rex

Stratford, A.C.J.

v Mlooi & Others 1925 AD 131): "Whoever instigated, procures or assists the commission of the deed is a socius criminis, and may be indicted, convicted and punished as if he were the principal offender. (Rex v Peerkhan & Lalloo 1906, T.S p. 802; Rex v Jackelson 1920 AD p. 490). Nor does his liability depend upon the liability of the latter; as pointed out in Rex v Parry (1924 AD .401) it flows from his own part in the transaction, coupled with the existence of mens rea in relation to the crime itself." (per INNES, C.J., p. 134). But though in our law there is no crime of criminal conspiracy as above defined, we, recognise the notion of association in crime and when accused are charged as socii criminis having a common purpose we apply the English rule of evidence, making statements and acts of one in furtherance of the common purpose admissible against the other or others. It is in connection with this rule of evidence that the allegation and proof of association for a common criminal purpose becomes so important...