Rex v Sandig

• Jurisdiction: South Africa
• Judge: Stratford ACJ, De Villiers JA, De Wet JA and Watermeyer AJA
• Judgment Date: 28 April 1937
• Citation: 1937 AD 296
• Court: Appellate Division

De Wet, J.A.:

The accused was together with Cilliers, Lazarus Sandig, Archie Sandig and Lourens van Niekerk charged with the crime of defeating the ends of justice and in the alternative with corruption in contravention of sec. 2 (b) of Act 4 of 1918. He was found not guilty on the main charge but guilty on the alternative charge and sentenced to pay a fine of £500 and in addition be imprisoned with hard labour for two years. Cilliers was found guilty on the main charge and his case has been fully dealt with by the ACTING CHIEF JUSTICE. Lazarus Sandig pleaded guilty to the alternative charge, his plea was accepted and he was sentenced to nine months' imprisonment with hard labour. He subsequently gave evidence for the Crown. Archie Sandig and Van Niekerk were acquitted on both charges.

The trial took place before a Judge and two assessors. At the conclusion of the trial the following questions of law were reserved in respect of the accused Samuel Sandig:

(a) That there was no legal evidence to support the finding of the Court that the accused was guilty as found and

De Wet, J.A.

(b) That the Court misdirected itself on the evidence inasmuch as there was no proper evidence on record to sustain the conclusion:

(i)

That the accused was party to the payment of any bribe to Opperman or Basson;

(ii)

that Lazarus Sandig consulted with the accused about the payment of the £125, that is the bribe in issue.

Though stated as two questions, the second one is merely an elaboration of the first and was so treated in argument.

In addition to the question of law reserved there was a special entry on the record in respect of certain alleged irregularities but this was not proceeded with.

It will be seen that the sole question for determination is whether there was legal evidence to support the finding of the Court. The test to be applied in determining this question has been laid down by this Court and is to the effect that the Court will only interfere if the trial Court taking a reasonable view of the whole of the evidence could not properly have returned the verdict. Rex v Shein (1925 AD 6); Rex v Kumalo (1930 AD 193). The difficulties of applying this test have more than once been pointed out and are not lessened in a case like the present in which a mass of evidence has been adduced most of which does not affect the charge on which the accused has been found guilty and in which the evidence of certain witnesses has been specifically rejected either in whole or in part by the trial Court.

The alternative charge against the accused alleged that either alone or in conjunction with one or more of the others he wrongfully, unlawfully and corruptly offered to Opperman and Basson, being police officers serving under the Crown and as such agents in terms of the Act, a reward of £50 each if they secured a conviction under the liquor law of one Abelson, a liquor licensee, and the imposition of a fine of not less than £5 and, whereas Opperman and Basson caused to be preferred by their principal, the Crown, certain charges as specified against Abelson and Abelson was convicted on these charges and fined £10, the accused, all and each or one or more of them, thereafter wrongfully, unlawfully and corruptly gave Opperman and Basson £50 each.

In the course of the case it was established that an arrangement as alleged had been made by one Joffe with Opperman and

De Wet, J.A.

Basson and that a reward of £100 had been paid to them by Joffe and it was admitted that such an offer and payment constituted a contravention of the Act as charged. On argument before us it was, however, contended that the evidence entirely failed to show that the accused was directly or indirectly a party either to the making of the offer or to the payment.

The finding of the Court was that Samuel Sandig was a party to the arrangement from an early stage. Further that although the payment of the £100 made by Joffe was admittedly part of the proceeds of a cheque for £125 given by Lazarus Sandig, the Court saw no reason to doubt Lazarus Sandig's evidence that he consulted with Samuel Sandig about the payment of the £125.

On the case against this accused the principal witness for the Crown was Joffe whose evidence was accepted by the Court. His evidence is that he was approached by Lazarus Sandig who told him that he suspected Abelson of having been behind the trapping of himself and that he wanted Joffe to get certain detectives to trap Abelson and that it was at the instance of Lazarus Sandig that he made the arrangements with Opperman and Basson. Lazarus Sandig in his evidence denied this. He stated that the initiative was taken by Samuel Sandig who came to him and said that something had to be done to stop the trapping business and that the only way to stop it was to pay Abelson (whom he suspected of being concerned in the trapping of the Lombardy Bottle Store belonging to Samuel and Lazarus jointly) out in the same way. In cross-examination he elaborated this by stating that Samuel definitely asked him to assist him by getting the police to trap Abelson. Lazarus further stated that he refused to have anything to do with the matter and was subsequently told by Joffe that he had been approached by Samuel Sandig in the same way. Though the Court considered the evidence of Lazarus Sandig very unsatisfactory and rejected it wherever in conflict with that of Joffe, the Court did not reject it entirely and came to the conclusion that his account of the initial conversation between him and Samuel Sandig, in so far as it referred to the suggestion made to him by Samuel Sandig was substantially true. It is difficult to see how we could hold that this conclusion was one which the Court could not reasonably arrive at, especially in view of the further supporting incidents found by the Court (see Rex v Kumalo (1916 AD 480)). It is true

De Wet, J.A.

that according to Lazarus Sandig's evidence nothing was said by Samuel Sandig as to payment to the detectives for the trapping but I think there is a great deal of force in the contention of the Attorney-General that when a private person for his own private purposes induces a detective to take steps to trap some other person, it is a reasonable inference that the detective will not undertake such a mission without the promise of a reward. However that may be, we have the further finding, already mentioned, of the Court accepting the evidence of Lazarus Sandig that he did afterwards consult with Samuel Sandig about the payment of the £125.

With regard to the initial conversation with Lazarus Sandig great reliance for the accused was placed on the following passage in the judgment of the Court: "As against Samuel Sandig, however, no more can be found proved than what...