Rex v Persotam

• Jurisdiction: South Africa
• Citation: 1938 AD 92

Rex Respondent v Persotam Appellant
1938 AD 92

1938 AD p92

Citation	1938 AD 92
Court	Appellate Division
Judge	Stratford JA, De Wet JA and Watermeyer JA
Heard	November 1, 1937
Judgment	November 6, 1937

Flynote : Sleutelwoorde

Criminal law — Fraud — Purchase of goods — Implied representation of intention to pay price — Evidence — Prima facie proof

Headnote : Kopnota

An allegation in an indictment that an accused represented that he was "able and willing to pay" on a certain date in the future for goods purchased on credit means that the accused represented that he intended to pay for such goods and is an allegation of a present intention.

There is an implied representation of good faith by a purchaser of goods oft credit and an implication of a representation of intention by the purchaser to fulfil his promise and pay on the due date arises from the fact of making the bargain.

Where a Judge sitting without a jury had come to the conclusion that there was prima facie proof of certain charges and stated that in the absence of all explanation by the accused the prima facie case became conclusive.

Held, that the Judge sitting as a juror was entitled to reason as he had done. The case of Rex v Jacobson and Levy (1931 AD 478), referred to.

1938 AD p93

Case Information

Appeal on certain questions of law reserved by GREENBERG, J., sitting with assessors at the Klerksdorp Circuit Local Division. The facts appear from the judgment of STRATFORD, J.A.

M. Bliss, for the appellant: On the question whether there was evidence of a misrepresentation payment on sight draft is a sale on credit. See Rex v Salaam (1933 AD 318). In fraud the perversion of the truth must be such as to amount to a false representation of an existing fact. See Gardiner and Lansdown Criminal Law of SA (3rd ed., Vol. 2 p. 1132). A promise that something will be done or will occur in the future is not of itself sufficient. See Halsbury's Laws of England (Hailsham ed., Vol. 9 pp. 567, 569); Rex v Aspinall and Others (2 Q.B.D. 48); Rex v Ballard (1935 CPD 256); Rex v Maklakla (1929 T.P.D. 336 at p. 340); Rex v Blythe (1916 T.P.D. 450); Rex v Swart (12 S.C. 421 at p. 422); Rex v Dilayi (1911, E.D.L. 151); Rex v Jones (26 T.L.R. 226); Rex v Jones (1898, 1 Q.B. 119 at pp. 123-4); Rex v Goodhall (168 E.R. 898); Rex v Thommee (18 E.D.C. 233); Rex v Woodman (14 Cox C.C. 179); Rex v Jakeman (110 L.T at p. 833); Rex v McCallum (11 Cr. App. Rep. 3 at p. 4) and compare Rex v Payne (1937, 2, P.H., H. 172). Rex v Larkins (1934 AD 91 at pp. 93-4) and Rex v Havenga (1925 T.P.D. 349) are distinguishable.

There must be a causal relationship between the false representation as charged and the prejudice. See Rex v Herzfelder (1907 T.H. 244); and Rex v Brandfort (7 S.C. 169 at pp. 173-4).

If the real pretence that operated on the complainants mind is not alleged in the indictment, the conviction cannot be supported. See Halsbury ibid p. 573; Rex v Bulmer (10 L.T. 580); Rex v Jones (50 L.T. 726 at p. 727); Rex v Smith (11 Cr. App. Rep at 81 p. 83).

The false pretence must be strictly proved. See Rex v Henry and Ward (1 Cox C.C. 101).

If there is a substantial variance between the pretence laid and that proved and the indictment is not amended, the accused cannot be convicted. See Halsbury ibid p. 570 Note (o) and Rex v Wepener (1933, S.A. Law Journal 527).

The Court will not consider as criminal offences purely civil matters for which civil remedies, are available. See Rex v Jones (supra) and Rex v Boden (18 E.D.C. 60).

The Crown did not make out a prima facie case for the accused to meet. See Ex parte Minister of Justice in re Rex v Jacobson

1938 AD p94

STRATFORD, J.A.

and Levy (1931 AD 466 at pp. 473, 478). Rex v Potgieter (1936 AD at p. 133) is distinguishable.

S. J. de Jager, K.C., Attorney-General, O.F.S., for the Crown: The allegation in the indictment means that the sellers were induced to part with their goods by reason of the fact that the accused held out that he was in a position and was willing and intended to pay for the...