Rex v Scholtz

• Jurisdiction: South Africa
• Citation: 1949 (3) SA 887 (O)

Rex v Scholtz
1949 (3) SA 887 (O)

1949 (3) SA p887

Citation	1949 (3) SA 887 (O)
Court	Orange Free State Provincial Division
Judge	De Beer JP and Brink J
Heard	June 20, 1949
Judgment	June 30, 1949

Flynote : Sleutelwoorde

Criminal procedure — Appeal — Grounds of — General verdict of guilty on charge laid in the alternative — Not a valid ground of appeal — Duty of Appellate Tribunal.

Headnote : Kopnota

On charges of theft or alternatively theft by conversion a magistrate had recorded a general verdict of guilty on all counts, although he had verbally told the accused and the accused had understood that he had been convicted on the main counts. In an appeal,

Held, as the accused had not been prejudiced, that the Court was precluded by the terms of the proviso to section 103 (4) of Act 32 of 1944 from setting aside the conviction and sentence.

Held, further, that a general verdict meant that the accused was found guilty on the main counts.

Held, further, that if a general verdict should give rise to any ambiguity the record should be remitted to the magistrate to correct or the Court of Appeal should itself do so in terms of section 98 (2) of Act 32 of 1944.

Rex v Foord (1948 (3), S.A.L.R. 507) applied.

Case Information

Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.

H. F. de Wet, for the appellant: The magistrate erred in not stating whether he found appellant guilty on the main or on the alternate charge; the omission is fatal to the conviction; see Rex v Schech (1927 TPD at 839 - 40), Rex v Van Rensburg (1931 OPD at 182 - 3); Rex v Somni (1946 OPD 2); Rex v Olivier (1945 OPD 105 - 6); Rex v Mataung (1947 (1), S.A.L.R. 736).

W. M. van den Berg, for the Crown: A Court of Appeal has power to correct the form of the verdict, or, where it is appropriate, to remit for correction by the trial Court. This power should be exercised whenever there can be no prejudice to the accused. See Rex v Shalala (1937 TPD 384); Rex v Sookram (1938 NPD 156); Rex v Mfetshane (1946 TPD 582); Rex v Phiri (1947 (3), S.A.L.R. 273); Rex v Foord (1948 (3), S.A.L.R. 507).

De Wet, in reply.

Cur adv vult.

Postea (June 30th).

Judgment

De Beer, J.P.:

The appellant in this matter appeared before the

1949 (3) SA p888

De Beer JP

magistrate at Clocolan charged with having committed seven counts of theft and alternatively with having committed seven counts of theft by conversion. As all the seven counts and alternatives follow the same pattern I shall here set out the first only. This reads:

'COUNT 1.

That the said Harold Harding Scholtz is guilty of the crime of theft, in that upon divers dates between the 1st and 20th days of February, 1949, and at or near Clocolan in the said district, the said accused whilst employed in the capacity of a clerk and collector of native taxes in the Public Service of the Union of South Africa at the magistrate's office, Clocolan, did wrongfully and unlawfully steal money amounting to £6 15s. (six pounds fifteen shillings) sterling or thereabouts, the property or in the lawful possession of His Majesty the King in his Government of the Union of South Africa, with the custody or care of which said money the accused was entrusted and which came into his possession by virtue of his said employment.

Alternatively:

That the said Harold Harding Scholtz is guilty of the crime of theft; in that the said Harold Harding Scholtz being in the employ of the Public Service of the Union of South Africa as a clerk and collector of native taxes at the magistrate's office, Clocolan, and as such authorised to receive and take into his possession moneys for and on account of the said Public Service of the Union of South Africa did on divers dates between the 1st and 20th days of February, 1949, and at Clocolan aforesaid receive and take into his possession in his aforesaid capacity for and on account of the said Public Service of the Union of South Africa from H. Cadle a sum of money amounting in all to the sum of £6 15s. (six pounds fifteen...