Rex v City Silk Emporium (Pty) Ltd and Meer

• Jurisdiction: South Africa
• Judge: Hall AJ, and Assessors
• Judgment Date: 04 November 1949
• Citation: 1950 (1) SA 825 (GW)
• Court: Griqualand-West Local Division

Hall, A.J.:

In this matter the first accused is a proprietary

Hall AJ

company and it is cited as represented by Yousuf Cassim Meer in his capacity as a director or servant, and the second accused is Meer himself. The accused are charged jointly with contravening certain sections of the Insolvency Act and each of the seven charges in the indictment is substantially in the following form: -

'That the said accused are both and each or one or other of them guilty of the offences of contravening sec. 135 (a) of Act 24 of 1936 read with secs. 182 and 185 of Act 46 of 1926 as amended.

In that whereas the said accused No. 1 is a company duly registered in terms of Act 46 of 1926, as amended,

And whereas the said accused No. 1 was placed under provisional liquidation by order of the Cape Provincial Division of the Supreme Court on the 23rd May, 1947,

And whereas the said accused No. 1 prior to being wound up, carried on business in Kimberley in the District of Kimberley,

And whereas the said accused No. 1 is unable to satisfy all its liabilities in full and is insolvent,

And whereas the said accused No. 2 was from the 13th June, 1941, until 10th March, 1947, a director of the said accused No. 1 which is being wound up under the provisions of Act 46 of 1926 as aforesaid,

And whereas the said accused No. 2 during the period 24th November, 1946, to 23rd May, 1947, committed acts or made omissions in relation to any assets, books or documents, business or the affairs of the said accused No. 1 which, if such acts had been committed or such omissions had been made by him, if his estate was sequestrated on the date upon which the winding up of the said accused No. 1 commenced, in relation to any assets, books or documents, business or the affairs of himself or his estate, would by virtue of sec. 185 of Act 46 of 1926, as amended, have constituted the offence aforesaid,'

These premises are then, in all the counts of the indictment, followed by allegations that the two accused contravened, between specified dates, an appropriate section of the Insolvency Act.

The accused have filed a motion to quash the indictment and 10 grounds of exception to it. The notice to quash the indictment does not specifically state, as required by sec. 155 (1) of Act 31 of 1917, that the indictment is calculated to prejudice the accused, but Mr. van Wyk, who appears for the accused, has based his argument upon the prejudice which both the accused must suffer by reason of the grounds set out in the motion to quash. The indictment cites accused No. 1, the Proprietary Company, as represented by Meer in his capacity as director or servant. It states that the Company was placed in liquidation by order of Court dated 23rd May, 1947, and that Meer was a director of it until 10th March, 1947. The grounds for the motion to quash are that, throughout

Hall AJ

these proceedings, which include the preparatory examination, the accused, Meer, was ex facie the indictment and as a fact not a director or servant of the company, and that the Company has never been, nor is it now, before the Court. To the motion was attached an affidavit by Meer supporting these allegations.

The indictment cites the Company as being represented by Meer 'in his capacity as director or servant'. In the 6th paragraph of the extract from the indictment set out above it is stated that he was a director until 10th March, 1947, and it is nowhere stated in the body of the indictment that Meer was at any time a servant of the Company. If Meer ceased to be a director of the Company on 10th March, 1947, and he was not thereafter a servant of the Company, he could not have been a director or servant during...