Rex v Levy and Others Appellants

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Wessels JA, Curlewis JA and Stratford JA
• Judgment Date: 29 April 1929
• Citation: 1929 AD 312
• Hearing Date: 09 April 1929

Curlewis, J.A.:

This case comes before us from the Cape Provincial Division on certain questions of law reserved and a special entry. The appellants were tried before GARDINER, J.P., and two Assessors on a charge of bribery, or alternatively of corruption in contravention of sec. 2 (b) of Act No. 4 of 1918. They were convicted on the principal charge, and at their request the Court reserved the following questions.

1.

Whether exceptions 1, 3 and 4 to the indictment should have been overruled.

2.

Whether it was competent to admit the evidence as a whole a against all the accused jointly, in their capacity as partners in terms of sec. 384 (3) of Act No. 31 of 1917, inasmuch as the partnership no longer exists.

3.

Whether the books alleged to have been the books of the late partnership should have been admitted, not only as showing the state of mind of the late partners, but also as evidence of the occurrence of the matters therein purported to be recorded.

4.

Whether the schedule and other records of the Requisite Store should have been admitted as evidence against the accused.

5.

Whether there was evidence sufficient in law to convict the accused.

A special entry was also made as follows:

The accused alleged that the proceedings were irregular or illegal, inasmuch as the application for a commission to take

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the evidence of J. P. J. Brunt, and for a postponement, was refused and thereby legal evidence was excluded.

Before us Mr. Stallard, who appeared for the appellants, abandoned the third point reserved, and under the first point reserved he abandoned the third and fourth exceptions mentioned therein.

The indictment, after setting out the names and occupations of the three accused, continued thus:-

". . . lately carrying on business in partnership as the firm of Levy Brothers and Company, are in their capacity as such partners all or each or one or more of them guilty of the crime of bribery . . . . ." (I omit any reference to the alternative charge.) In that, whereas at all times material, the said accused were carrying on business together in partnership as importers at Cape Town aforesaid as the firm of Levy Bros & Co. (hereinafter called 'the firm'), and whereas Jan Piet Joubert Brunt, George Fisher and Carl Henry Prime were at all such times officers of the Public Service of the Union of South Africa in the employment of the Administration of the Cape of Good Hope, having as such officers duties on its behalf in connection with the purchase of goods for the Cape Provincial Requisites Store (hereinafter called 'the Store'), a branch of the said Administration, the said accused as partners aforesaid did on behalf of the firm and at Cape Town in the district of the Cape on the several dates set out in column 2 of the Schedule 'A' attached hereto wrongfully, unlawfully and corruptly make to the officers mentioned in Column 3 of the said Schedule 'A' the unauthorised payments of money set out in Column 4, opposite their respective names, in consideration of such officers in their office and in relation thereto, purchasing or having purchased, influencing or having influenced the purchase from the said firm during the period 1st November, 1921, to the 31st December, 1924, of goods for the Store, the actual dates of the purchases and the class of goods in respect of which each payment was made being to the prosecutor unknown, and thus the accused did commit the crime of bribery."

Secondly:

"That the accused in their capacity as partners aforesaid, are all and each or one or more of them guilty of the crime

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of bribery: In that, whereas at all times material, the said accused were carrying on business together in partnership as importers in Cape Town is the firm of Levy Brothers & Company (hereinafter called 'the firm'), and whereas Ernest Byrne, was at all such times an officer of the Public Service of the Union of South Africa in the employment of the Ad ministration of the Province of the Cape of Good Hope, having as such officer duties on its behalf as storekeeper of the Cape Provincial Requisites Store, a branch of the Administration, the said accused as partners aforesaid, did on behalf of the firm and at Cape Town in the district of the Cape, and on or about the several dates set out in Column 2 of the Schedule 'B' attached, wrongfully, unlawfully and corruptly give to the said Ernest Byrne the unauthorised payments of money set out respectively in Column 3 of the said Schedule 'B' for doing or having done in his office of storekeeper,: acts tending to the advantage of the firm in respect of the sale by the firm of goods to the Store; and thus the accused did commit the crime of bribery."

The schedule attached to the indictment sets out 18 items of payment under the first count and 9 under the second count; the accused were convicted in respect of 12 under the first and 8 under the second count.

It will be convenient to deal with the first and second points reserved under one heading, because as argued before us they both involve the interpretation of sec. 384 of Act 31 of 1917. As counsel has abandoned under the first point exceptions numbers 3 and 4 to the indictment, there remains only to be considered exception No 1 which was:-

"That it is incompetent to charge the accused jointly in their capacity as partners in terms of sec. 384 (3) of Act 31 of 1917, inasmuch as the partnership no longer exists, or other wise."

Counsel did not support this exception in so far as it was founded on the fact that the partnership no longer exists, but he supported it on the ground of the words "or otherwise." On these words "or otherwise" he based his main argument, and his contention was to the following effect. He urged that it was not competent to proceed against the individual partners because no criminal proceedings had been instituted against the partnership; that it was a

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condition precedent, before the partners could be charged and held liable, that there should be a prosecution of the partnership; he maintained that sub-sec. (3) of sec. 384 makes the whole of sub-sec. (1) applicable in the case of a Partnership, and that sub-sec. (1) pre-supposes the criminal prosecution of a company, and that unless such a prosecution is under way the rest of the sub-section does not come into operation as against the secretary, manager, director or chairman; he contended that neither a company nor a partnership can be capable of mens rea, which is essential to the common law crime of bribery, and therefore neither a company nor a partnership can be charged with bribery; that sec. 384 is inapplicable where mens rea is necessary in a crime, and that therefore sec. 384 is of no avail to the Crown in the prosecution of the appellants.

The first remark I have to make on this is that this is a question which does not seem to have been reserved by the lower court. The only question which appears to me to arise under the first point reserved and the first exception is, that as, according to the indictment, the partnership of Levy Brothers has ceased to exist, there can be no proceedings against the partnership, and that consequently sec. 384 cannot apply, and the accused cannot be charged jointly as partners. From the record that would seem to be what the first exception was understood to mean and the way it was dealt with in the lower court. What was brought into issue was the legal position of the partners seeing that the partnership had ceased to exist. The dissolution of the partnership was the basis of the first exception, and it is also the basis of the second point reserved. But Mr. Stallard contended that be was entitled to raise and argue this point because of the words "or otherwise" contained in the first exception.

It does not seem necessary for me to decide whether, strictly speaking, we have jurisdiction to deal with this point as not having been specially reserved, or whether the words "or otherwise" in the exception entitle the appellants to raise the point before us, because it seems to me desirable, in view of what counsel has urged in connection with the fifth point reserved, and especially on the question of onus, to deal with the interpretation of sec. 384 (3), which has now been raised.

The learned JUDGE-PRESIDENT in his reasons for dismissing the first exception and in dealing with sec. 384 (3) on the question of the liability of the partners, in view of the dissolution of the part-

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nership stated: "Now I have not found in the law prior to Act 31 of 1917 or in that Act itself, any provision for charging a partnership as such only; proceedings always embody the names of the partners." And after referring to Gibbings & McKensie Limited v The Bloemfontein Municipality (1922 OPD 77), the learned JUDGE-PRESIDENT...