Rex v Jones and More

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, Wessels JA, Curlewis AJA and JER De Villiers AJA
• Judgment Date: 12 April 1926
• Citation: 1926 AD 350
• Hearing Date: 25 March 1926
• Court: Appellate Division

Rex Respondent v Jones and More Appellants
1926 AD 350

1926 AD p350

Citation	1926 AD 350
Court	Appellate Division, Bloemfontein
Judge	Innes CJ, Solomon JA, Wessels JA, Curlewis AJA and JER De Villiers AJA
Heard	March 25, 1926
Judgment	April 12, 1926

Flynote : Sleutelwoorde

Criminal law — Fraud — Indictment — Prejudice.

Headnote : Kopnota

An indictment upon a charge of fraud must contain an allegation, either express or implied, that there has been prejudice, and the absence of such an allegation would constitute a fatal defect in the indictment, for it would not disclose an offence.

A summons in a Magistrate's Court charged appellants with the crime of fraud on five counts in each of which it was alleged that in consequence of false and fraudulent representations made by the accused, which varied in the different counts, the complainants were induced to buy shares in a company at the price of £1 per share. In three of the counts the shares were stated to be of the value of £1 each and in the other two counts no value was attached to them. The appellants having been convicted.

Held, on appeal, that in the absence of any express allegation of prejudice, and as it did not appear from the facts set forth that the complainants suffered some loss in money, the indictment did not disclose an offence and that the conviction must be set aside.

The decision of the Natal Provincial Division in Rex t, Jones and More, reversed.

Case Information

Appeal from a decision of the Natal Provincial Division (CARTER, J., and HATHORN, J.), sitting as a court of appeal from a decision of the magistrate's court, Weenen.

The facts appear from the judgment of SOLOMON, J.A.

INNES, C.J., pointed out that the court below had not only decided the preliminary point of law, but had also subsequently dismissed an appeal on the merits, and that it was not advisable that the case should be heard in compartments.

1926 AD p351

With consent of counsel, the Court granted leave to appeal on condition that the case was argued merely on the law point, and not on the merits.

C. A. Beck, for Jones: The indictment does not disclose the offence of fraud, as there is no allegation of prejudice. Prejudice must be specifically alleged unless it appears sufficiently from the facts set out in the indictment. It is necessary to prove actual prejudice when the accused has effected his purpose. See Gardiner and Lansdown's SA Criminal Law and Procedure (1st ed.), vol. II., Ch. I., p. 1,137, and R v Herzfelder (1907 T.H. 244, at pp. 246 and 250).

The meaning of the word "potential" when applied to prejudice is narrower than the word "possible." See R v Firling (18 E.D.C. 11, at p. 19). R v Akbar (36 N.L.R. 497, at p. 502) was wrongly decided, as it is in conflict with R v Herzfelder (supra).

More appeared in person.

F. C. M. Voigt, for the Crown: The indictment sufficiently discloses prejudice in terms of the decision in R v Herzfelder (supra).

Beck replied.

Cur adv vult.

Postea (April 12th).

Judgment

Solomon, J.A.:

The appellants were convicted by the magistrate for the district of Weenen, Natal, of the crime of fraud, and were sentenced to be imprisoned for four months with hard labour. On appeal to the Natal Provincial Division, the conviction and sentence were confirmed, and an appeal is now brought to this Court.

At the hearing in the Provincial Division, a preliminary objection was taken that "the summons does not disclose the crime of fraud, in the absence of any allegation that the alleged statements of the accused, though relied upon by the several complainants, resulted in actual prejudice to them or any of them; nor do such statements show that they were calculated, if acted upon, to cause prejudice." This objection was overruled, and the appeal was then heard on the merits. In this Court the same point was taken by counsel for the appellants, and the appeal was based entirely upon the ground that the indictment does not disclose the crime of fraud.

1926 AD p352

Solomon, J.A.

It does not appear from the papers before us whether this objection was taken before the magistrate, but indeed it is immaterial whether it was or not, for if the indictment is defective and does not disclose the offence charged, then it is clear that the conviction cannot stand. The decisions of this Court in Rex v Herschell (1920 AD 575) and Rex v Myburgh (1922 AD 249) are conclusive on this point. The accused in the latter case had been convicted of a contravention of sec. 139 (3) of the Insolvent Act 32 of 1916 in that he had "wrongfully and unlawfully" given an undue preference. The section in question makes it an offence for a person "knowingly" to give an undue preference. It was held that the omission of the word "knowingly." from the indictment was a fatal defect, inasmuch as that was a necessary and material ingredient in the offence charged, and that without it the indictment did not disclose an offence. The conviction on that charge was, therefore, quashed, though no objection had been taken to the sufficiency...