Rex v Foord

• Jurisdiction: South Africa
• Citation: 1948 (3) SA 507 (A)

Rex v Foord
1948 (3) SA 507 (A)

1948 (3) SA p507

Citation	1948 (3) SA 507 (A)
Court	Appellate Division
Judge	Centlivres JA, Schreiner JA and Davis AJA
Heard	May 14, 1948
Judgment	May 14, 1948

Flynote : Sleutelwoorde

Criminal Procedure — Verdict — General verdict — When competent — Act 31 of 1917, section 126 — Southern Rhodesia Criminal Procedure and Evidence Act, section 131 — Scope of — Correction of verdict — Powers of appellate tribunal — When to be made.

Headnote : Kopnota

If a provision in a statute creates two or more offences an accused may, under section 131 of the Southern Rhodesia Criminal Procedure and Evidence Act, or section 126 of Act 31 of 1917 (Union), be charged with committing any or all of those offences or he may be charged in the alternative of having committed some or one of these offences. And if, under either of these sections, a charge in the alternative is laid, any conviction that follows should properly be of one only of the alternative offences. But if the statutory provision really only creates one offence, which may be committed in one or more of the various ways enumerated, then neither section 131 nor section 126 comes into operation and the verdict may be in the general form of guilty of the charge as laid.

The power which an appellate tribunal has to correct the form of the verdict or, where it is appropriate, to remit for correction by the trial court, should be exercised whenever there can be no prejudice to the accused.

A correction which does no more than bring the verdict into line with the charge and the evidence is unlikely ever to prejudice an accused.

The decision of the High Court, Southern Rhodesia, in Rex v Foord (1948 (1), S.A.L.R. 722), confirmed.

Case Information

Application for leave to appeal from a decision in the High Court, Southern Rhodesia (HUDSON, C.J., and THOMAS, J.). The facts appear from the judgment of SCHREINER, J.A.

S. Miller, for the applicant: Applicant must satisfy the Court that he would have reasonable prospects of success on appeal if leave were granted and that the case is not trivial; see Rex v Nqubane and Others (1945 AD at pp. 186 - 7); Rex v Nxumalo (1939 AD at p. 588); Rex v du Plessis (1935 TPD at pp. 335 - 6). As to appeals from Southern Rhodesia, see Act 18 of 1931, sec. 4; Rex v Owen (1942 AD at p. 391). As to the first count, sec. 12 of Act 12 of 1942 (S.R.) creates four separate offences; applicant was charged in the alternative with committing three of those offences; cf. Rex v Schech (1927 TPD 839 at pp. 840 - 2); Rex v Griffiths (1928 CPD 337); Rex v Masow (1940 AD at p.

1948 (3) SA p508

89); Rex v Shamosewitz (1915 AD 682). It was essential therefore that the magistrate specify the offence of which the applicant was convicted. See Rex v Schech (supra); Rex v Wilmot (24 C.A.R. 63); Rex v Sherwood (1942, 1 K.B. 127); Rex v Wells (91 L.T. 98); Rex v van Rensburg (1931 OPD 183); Rex v Nte (1935, E.D.L. 305); and cf. Rex v Somni (1946 OPD 1); Rex v Phiri (1947 (3) S.A.L.R. 273); Rex v Shalala (1937 TPD 384). Failure to do so was an irregularity, prejudicial to applicant. See cases quoted supra. As to the second count, mens rea is an essential element of the offence of 'possessing ammunition' created by sec. 12 of the Act. Although the maximum penalty provided by the section should not have been imposed, applicant as a first offender was not given due consideration by the Court; cf. Rex v Coetzee (1936 AD 471); Rex v Sandig (1937 AD 296); Rex v Swanepoel (1945 AD 444); Rex v Mahametsa (1941 AD 83); Rex v Sitebe (1934 AD 56).

A. J. Smit, K.C., for the Crown: The verdict on count one is not bad for duplicity; sec. 12 of Act 12 of 1942 creates one offence, but provides four different ways in which that offence may be committed; see Gardiner & Lansdown, S.A. Criminal Law & Procedure (5th ed., vol. 1, at pp. 240 - 1); Rex v Shamosewitz (1915 AD at p. 694); Rex v Ah Foo (1926 CPD at pp. 169 - 70); Rex v Bernstein (1927 TPD at pp. 488, 491); Rex v Levitas (1927 TPD at pp. 953 - 4); Rex v Collier (1928 NPD 123); Rex v Bonafede and Another (1933 CPD at p. 364); Rex v Ah Chong (1934 TPD at p. 361); Rex v Rouse (1934, E.D.L. at pp. 53 - 4) and cf. Rex v Somni (1946 OPD at p. 4); Rex v Phiri (supra); Rex v Emily Louw (1946, G.W.L.D. at p. 7). Alternatively, the section creates at most only two offences and applicant was properly charged and convicted of only one offence. Cf. Rex v Levitas (supra); Rex v Roux (supra). In the circumstances a general verdict of guilty was not irregular. See Rex v Levitas (supra, at p. 955); Rex v Masembuka (1931 TPD 429). If the general verdict of guilty is bad because the charge discloses more than one offence, this Court will correct it. There was no prejudice to the applicant. The evidence...