Rex v Myburgh

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Innes CJ, Solomon JA, De Villiers JA, Juta JA and Mason AJA
• Judgment Date: 10 March 1922
• Citation: 1922 AD 249
• Hearing Date: 22 February 1922

Juta, J.A.:

The appellant was charged with contravening the Insolvent Act No. 32 of 1916, on ten different counts, and found guilty on four counts, numbers two to five. Counts two and three charged him with contravening sec. 139 (3), in that he wrongfully

Juta, J.A.

and unlawfully gave, when his liabilities exceeded his assets, undue preferences to his wife, and to one Greling, creditors of his estate; count four charged him with contravening sec. 139 (4), in that he contracted debts to the aggregate amount of £50 and upwards without any reasonable expectation of being able to discharge the same. On counts two and three he was sentenced to a fine of £75 or three months' imprisonment with hard labour: on count four he received the same sentence: on count five he was cautioned and discharged. The reviewing judge pointed out that the magistrate had no power to inflict a fine, confirmed the convictions and quashed the sentences and remitted the case for a proper sentence to be passed to the magistrate, who thereupon passed the sentence of three months' imprisonment on counts two and three, and a similar sentence on count four. The accused appealed to the Provincial Court, which quashed the conviction on the fifth count but dismissed the appeal on the other charges and confirmed the sentences. He now appeals to this Court.

Apart from the merits of the case, an objection was taken in this Court that the admission of a certified copy of the evidence given at the second meeting of the insolvent was illegal. This objection was not taken before the magistrate, and it was not one of the grounds upon which the accused appealed to the Provincial Division. But the Crown does not object to this objection being now raised. It is clear, however, from sec. 169 of the Insolvency Act that if this copy was duly certified by the Master, its admission was legal. From the record it was not clear whether this was so or not. Both parties consented to the suggestion of the CHIEF JUSTICE that this particular document should he sent from the magistrate's court to this Court, it being admitted by the Crown that if it was not certified in accordance with the law, and therefore inadmissible in evidence, the whole case against the accused would fall to the ground, and the appeal should be allowed. That document has been duly transmitted to this Court, and it is duly certified by the Master as a true copy. Its admission was therefore legal. That being so the further grounds advanced for the accused must be considered.

Sec. 139, sub sec. 3, makes it a criminal offence if a person, "knowingly" gives an undue preference. The latter is...