Rex v Shamosewitz and Schatz

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and CG Maasdorp JA
• Judgment Date: 15 November 1915
• Citation: 1915 AD 682
• Hearing Date: 15 November 1915
• Court: Appellate Division

Innes, C.J.:

As I remarked at an earlier stage, it is to be regretted that the Crown is not represented. In applications of this nature the Court is entitled to the assistance of someone representing the Attorney-General, if only to know the attitude which he takes up; and if for any reason it is considered impossible for the Crown to appear, some notification should be sent to the Court. As it happens, however, we are able to deal with the present matter at once; for though we have given full weight to Mr. Blaine's arguments, we are not prepared to accede to the petition. Without dealing in detail with every point, I shall endeavour to follow the order which he adopted in discussing the more important ones.

Innes, C.J.

Taking first the objections to the indictment as a whole, the most important one was put in this way: The accused, it was said, could not properly be severally charged; the charge related to their dealings with the partnership estate; and in regard to such dealings, criminal acts in contravention of the statutory provisions in question must be joint; they cannot be several. Now that contention involves, indeed, it is based upon, the idea that a partnership is, for purposes of the insolvent law, a separate persona, distinct from its members. That is clearly not so as a general principle, for although partners stand to one another in a special relationship, having a distinctive operation both upon their property and their dealings, still the partnership is not in law a persona apart from its members. Has it been made one for insolvency purposes? It is treated, it may be said, in some respects as if it were. The estate of a firm is separately sequestrated and separately distributed. But that is necessary in order to adjust the claims of competing classes of creditors. I know of no section which lays down the principle that a partnership is to be considered in sequestration proceedings as a distinct legal persona, nor of any section which is clearly inconsistent with the contrary view. And there are clauses which plainly intend to include in the term "insolvent" the individual members of a sequestrated partnership-the 53rd and 54th sections, for instance. To say that their provisions applied, in cases of partnership sequestration, to joint attendances and joint replies by the partners would be absurd. Other examples could, doubtless...