Rex v Kruse

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Feetham AJA
• Judgment Date: 21 May 1946
• Citation: 1946 AD 524
• Hearing Date: 19 March 1946
• Court: Appellate Division

Rex Respondent v Kruse Appellant
1946 AD 524

1946 AD p524

Citation	1946 AD 524
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Feetham AJA
Heard	March 19, 1946
Judgment	May 21, 1946

Flynote : Sleutelwoorde

Criminal law — Fraud — Prejudice — Fraudulent design successful — Failure by Crown to prove that prejudice induced by representation alleged — Representation calculated to prejudice.

Headnote : Kopnota

Where an accused makes a false representation in order to induce the representee to part with his property and he obtains the property, if the false representation is of such a nature as, in the ordinary course of things, to be likely to prejudice the complainant, the accused cannot successfully contend that the crime of fraud is not established because the Crown has failed to prove chat the false representation induced the complainant to part with the property.

1946 AD p525

An accused induced a shopkeeper to part with two rings which the accused disposed of. He obtained the rings on approval, stating that he would return in five days' time to settle for the ring he decided to keep and giving the complainant a cheque for the price of the two rings as security. The cheque was drawn on a bank at which at the time the accused had no account. The false pretence relied on by the Crown in the indictment was the representation that the cheque was a good and available cheque. The accused having been convicted of fraud,

Held, on certain questions of law reserved, that there was evidence upon which a reasonable man could properly find that the complainant was induced to part with the rings by the representation that the cheque was a good and available cheque, this representation having been a material factor in inducing the complainant to part with the rings.

Held, further, that in any event as the representation alleged was made with the fraudulent intention of deceiving the complainant and was one which was likely, in the ordinary course, to influence a shopkeeper in the circumstances in which it, was made and thus to cause prejudice, even if the evidence had been consistent with the view that other factors and not the representation alleged had induced the complainant to part with the rings, the accused would nevertheless have been properly convicted of the crime of fraud.

The cases of Rex v Jolosa (1903, T.S. 694); Rex v Herzfelder (1907, T.H. 244) and Rex v Jones and More (1926 AD 350), discussed.

Case Information

Appeal upon certain questions of law reserved by MILLIN, J., sitting without a jury in the Witwatersrand Local Division.

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

P. J. van Blerk, for the appellant: In the case of an indictment for fraud, there must be ex facie the indictment a casual relationship between the perversion of the truth and the actual or potential prejudice and it is essential for the Crown to prove that the false pretence was substantially the inducing cause of the handing over of the property (Rex v Herzfelder (1907, T.H. 244); Rex v Jones. & More (1926 AD 350); Gardiner and Lansdown's, South African Criminal Law and Procedure (4th ed., vol. II, p. 1416)). As to the object of an indictment, see Rex v Alexander and Others (1936 AD at 457). Further on the facts.

W. M. van den Berg, for the Crown: A false representation made with intent to defraud may constitute falsity even though it does not cause or participate in causing, the complainant to act to his prejudice (Rex v Hendrickz (1938, W.L.D. 277 at 278-9); van Heerden and Others v Rex (T.P.D. April 9, 1945, Justice Summary of Decided Cases, 1945, Case No. 55)). The crime of falsity is complete when a person wilfully makes a false representation with intent to defraud, if that representation is calculated to cause prejudice; where such a representation does not cause or participate in causing actual prejudice and actual prejudice is caused as a result of other

1946 AD p526

circumstances, it is not necessary for the Crown to show that the actual prejudice is related to the false representation by way of cause and effect (Moolchund v Rex (1902, 23 N.L.R. 76 at 81); The King v Firling (1904, 18 E.D.C. 11 at 16, 18-19); S.A.L.J., vol. 51, at pp. 41-43, 49 and 55. The law looks at the matter from the point of view of the deceiver (Rex v Dyonta and Another (1935 AD 52 at 57). It was sufficient, for the Crown to prove that the representation was calculated to cause prejudice (Rex v Herzfelder (1907, T.H. 244 at 2477248); Rex v Jones & More (1926 AD 350 at 352-353); S.A.L.J., vol. 51, at pp. 41-43, 45-47, 49-54; Rex v Persotam (1938 AD 92 at 97); Rex v I. Alexander & Others (1946 AD 110). It is submitted that the variance between the evidence and the allegation in the indictment that the accused actually obtained the rings by means of the false representation charged in the indictment is not fatal Rex v Nader (1935 TPD 97); I for authorities as to variance between evidence and charge, see Rex v Mahomed (1929 AD 58); Rex v Dwarika and Another (1932 AD 335); Rex v Alexander and Others (1936 AD 445); Rex v Mahomed (1940 AD 96); Rex v Bruins (1944 AD 131); for authorities as to worthless cheques, see Rex v Oakley (1935 OPD 38 at 40); Pullen v Rex (N.P.D. 1941, April 1; 1941 (2) P.H. H. 163); Rex v Mohr (I 944 TPD 105).

van Blerk in reply.

Cur. adv. vult.

Postea (May 21st).

Judgment

Tindall, J.A.:

Two questions of law were reserved by the trial court, of its own motion under sec. 372 of Act 31 of 1917, in this case in which the accused was convicted of the crime of fraud. The case was tried by MILLIN, J., without a jury in the Witwatersrand Local Division, and the following facts may be taken to be undisputed for the purposes of the present inquiry. On Friday, 9th March, 1945, the accused entered the shop of the complainant, Jack Slier, the proprietor of a jeweller's business called Holland Diamond Cutting Works and situate in Eloff Street, Johannesburg, and asked to be shown some engagement rings, stating that he was about to proceed to Dundee, Natal, where he intended to become engaged to be married. Slier showed the accused various rings

1946 AD p527

Tindall, J.A.

from which the latter selected two, priced at £35 and £34, respectively. The accused proposed that he should give Slier a cheque for £69 as security for the rings and stated that he would return on the following Wednesday, the 14th March, to settle the matter. The accused signed a receipt for the two rings headed "On Approbation", the document stating that the rings remained Slier's property until invoiced and containing the following note: "One ring will be returned and a refund will be given".

At the same time the accused gave Slier a...