Rex v Myers

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA and Greenberg JA
• Judgment Date: 19 November 1947
• Hearing Date: 07 October 1947
• Court: Appellate Division

Greenberg, J.A.:

The accused, together with one Dyssell, was convicted by LEWIS, J., sitting with assessors, in the Port Elizabeth Circuit Local Division, on two counts of fraud. The indictment on which he was charged contained three counts, but the first count was withdrawn by the prosecutor at the outset of the trial, before the accused had pleaded. The second count alleged that during July, 1943, the accused and Dyssell had falsely and fraudulently represented to a Mrs. Ward that they

'were able or about to acquire or had the right to acquire a large consignment of goods from an estate, that the said goods had arrived at Port Elizabeth in the custody of the South African Railways and Harbours and that they the accused required an amount of £600 in order to effect the purchase of the said goods',

and that by means of this representation she had been induced to pay them £600. The charge on the third count was a false and fraudulent representation, made during the period February to September, 1943, to one Greeff that the two accused

'were able or in a position or had the right to acquire from the South African Railways, Port Elizabeth, a large consignment of goods . . .. and that they required certain moneys to obtain the release of the said goods from the South African Railways and that he, the said Greeff, could purchase from them the accused such part of the goods as he may desire at cost price.'

Greenberg JA

and that by means of this representation Greeff had been induced to pay them the sum of £3,450 odd.

After conviction of both accused on both counts, the Court, on the application of Myers' counsel, reserved the following question of law:

'Whether there is legal evidence on which a reasonable man could properly convict the accused, the said Joseph Aubrey Myers, of the crime of fraud.'

During the course of the hearing of the appeal, on the application of Mr. Reynolds, who appeared for the accused, and with the consent of counsel for the Crown, Mr. van der Walt, two further questions of law were added, viz.:

'(1) Whether or not the trial Court's conclusion that the accused acted recklessly, not caring whether his representations were true or false, is a finding which amounts to no more than a finding of negligence. (2) Did the trial Court misdirect itself on the question whether or not negligence amounts to an intention to defraud.'

The issues which arise in this matter were summarised by LEWIS, J., in giving the Court's reasons for the conviction, in these terms:

'I propose to consider first the charges against the accused Myers. The substance of the charges against him on both counts is that he represented to the two complainants, Mrs. Ward and Greeff, that there were then in the custody of the South African Railways, at Port Elizabeth, certain goods over which goods Myers had acquired or was able to acquire a right of purchase. and that in consideration of moneys to be advanced to him by complainants he would pay Mrs. Ward good interest on her loan and that he would afford to Greeff the opportunity of purchasing from him such portion of the goods as he might desire at cost price. It is not disputed by Myers that he made such representations. Nor is it disputed by him that such representations were false in fact. The evidence called for the Crown proves beyond all doubt that no such goods were then or at any time in the custody of the South African Railways at Port Elizabeth. But the defence raised on behalf of Myers is that he did not make these representations wilfully, i.e. either with knowledge of their falsity or with such recklessness as to lead the Court to conclude wilfulness. His case is that he was led to make these representations, relying on information given him by the accused, Dyssell, which he believed to be true. The nature of the relations between Myers and Dyssell calls for some mention at this point. Myers was the proprietor of a petrol filling station in Port Elizabeth. Dyssell was a checker in the South African Railways at Port Elizabeth. They met in 1941, when Dyssell lived in the neighbourhood of Myers' filling station; he bought petrol off Myers and they soon became on intimate terms. From the evidence it appears that Dyssell mentioned to Myers that there was to be a sale of valve-grinders and electric batteries by public auction on behalf of the Railways at Port Elizabeth, and he enquired whether Myers was interested. Owing to the scarcity and difficulty of obtaining these goods at the time, Myers was interested, and

Greenberg JA

ultimately Dyssell, at Myers' request, purchased these goods for him at a cost of £7, on which transaction Myers made a profit of £200. The success of this transaction led to the discussion of possible further business between the parties, and at this point the evidence of Myers and Dyssell is in material conflict.'

The learned Judge then dealt with Dyssell's evidence of the relationship between the two accused in connection with the transactions which formed the subject of the enquiry, but before referring to this it is necessary to ascertain what happened to the money received by Myers from Mrs. Ward and Greeff. Myers' version is that he paid to Dyssell £7,811 5s., which was made up of the amounts received from the two complainants and sums which he had received, in connection with the same goods, from other persons, and £2,719 14s. 1d. which came from his own resources. Dyssell, whose estate was subsequently sequestrated, said in a statement made by him in the insolvency proceedings that between October, 1942, and July, 1943, in connection with the transactions involved in the trial, he had received from Myers amounts totalling £3,668. In cross-examination at the trial, he admitted that he had 'got a great deal more than £3,668' from Myers. It appears that some time after the £600 had been obtained from Mrs. Ward, who was on very friendly terms with Myers, she became suspicious of Dyssell and made investigations into his dealings. Myers says that as a result of these investigations and of further enquiries made by him, he realised that the representations which Dyssell had been making to him in regard to the existence of the goods, which he in turn had made to Mrs. Ward and Greeff, and on the faith of which he had paid the amount of over £10,000 to Dyssell, were false, and he consulted his attorney with a view to taking criminal proceedings against Dyssell; on the advice of his attorney, however, civil proceedings were instituted in the form of an action against Dyssell in the Eastern Districts Local Division, for the sums of £7,811 5s. and £2,719 14s. 1d., together with a claim of £29 0s. 3d., not relevant to the present case.

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