Rex v Hendrikz

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA, Beyers JA and De Villiers JA
• Judgment Date: 18 September 1934
• Citation: 1934 AD 534
• Hearing Date: 03 September 1934
• Court: Appellate Division

De Villiers, J.A.:

The appellant was tried in the magistrate's court on a charge of fraud, on three counts. I shall first deal with count No. 1; indeed it will not be necessary to say much about counts Nos. 2 and 3, as the facts in the three counts closely resemble each other in all essential respects. By count No. I the accused was charged with the crime of fraud in that he represented in December, 1933, to a certain police constable Stone that he was the agent of a certain insurance company, and that if Stone insured himself with the company, he (Stone) would be able to obtain a loan from the company immediately upon the insurance being accepted by the company and that by that representation he induced Stone to take out a life insurance policy for £600 in

De Villiers, J.A.

the company, whereas in fact the accused knew that he was not an agent foe the company, and that Stone would not be able to obtain a loan on the policy from the company immediately upon the acceptance of the insurance. Evidence was led in support of these averments, and the magistrate found on the evidence that the averments were proved to his satisfaction. In the case of Stone, the misrepresentation as to the "immediate loan" induced Stone to take out a policy for £600 and to pay several monthly instalments of £2 6s. each, in respect of the premium for the first twelve months. He, in fact, signed an irrevocable "stop order" out of his salary, for the whole period of twelve months, so it may be taken for the purposes of this judgment that Stone has been induced by the false representation as to the "immediate loan 99 to pay a sum of 227 12s as premium for the first twelve months of the insurance. Stone applied to the company, at its office, for an immediate loan" in January, 1934, but his application was refused. The accused was convicted on all three counts. He appealed unsuccessfully to the Transvaal Provincial Division, and now appeals to this Court, having obtained special leave. Now if I understand Mr. Roos correctly, he does not challenge the magistrate'.,; findings of fact generally, though he raises some points as to the evidence with which I shall deal later. In any case the magistrate's findings of fact are so fully supported by the evidence that I do not propose to discuss the credibility of the witnesses or the probabilities of the facts alleged by them I pass at once to the point raised by Mr. Roos concerning the admissibility of certain evidence. The prosecution led evidence as to the contents of the insurance policy issued to Stone, viz. evidence that this policy contained no clause entitling the insured to a loan. The policy however was not produced or put in. Mr. Roos contends that the best evidence of the contents of the policy was the policy itself, and that oral evidence as to its contents was therefore inadmissible by virtue of sub-sec. (1) of sec. 268 of Act 31 of 1917, as substituted by sec. 30 of Act 39 of 1926. This sub-section provides that: "Subject to the provisions of sub-sec. (2) every party on whom it is incumbent to prove any fact, matter, or thing shall be bound to give the best evidence of which from its nature, such fact, matter, or thing is capable: and no evidence as to any fact, matter, or thing shall be admissible whenever it is in the power of the party who proposes to give such evidence to produce

De Villiers, J.A.

or cause to be produced better evidence as to such fact, matter, or...