S v Aitken and Another

• Jurisdiction: South Africa
• Citation: 1988 (4) SA 394 (C)

S v Aitken and Another
1988 (4) SA 394 (C)

1988 (4) SA p394

Citation	1988 (4) SA 394 (C)
Court	Cape Provincial Division
Judge	Van den Heever J and Friedman J
Heard	March 21, 1988
Judgment	March 31, 1988

Flynote : Sleutelwoorde

Criminal law — Persons, liability of — Mens rea — Proof of — Magistrate convicting appellants of theft on the basis that dolus eventualis was an acceptable form of intent — Nothing less than guilty knowledge suffices to justify a conviction in an offence where dolus required and culpa was insufficient — Suspicion by accused of wrongfulness by another resulting in possible financial gain for accused C should be such that honest man would be put to inquiry — Lack of inquiry should be motivated by dishonesty and in circumstances where accused knew conduct wrongful — A conviction would then be founded — Court quashing conviction in the circumstances — Theft — Dolus eventualis — Whether sufficient — Magistrate convicting appellants on basis of dolus eventualis being an acceptable form of intent — Appellants entering a joint venture to move to growth point at Atlantis and being paid an incentive from the Decentralisation Board — Move handled by a company E which had defrauded the Board and its own clientele for many months — Prosecutor contending that State had established dolus eventualis in that the appellant suspected the Board might pay more than they were entitled in terms of the scheme and were reconciled to this happening — State not establishing case — No reason for appellants to be sharper than Board or any other of company's clients — Conviction and sentence F quashed.

Headnote : Kopnota

Assuming that there might be some virtue in using the concept of dolus eventualis in assessing the evidence in a theft charge, that concept cannot be used to short-circuit a century of jurisprudence and constitute a mere suspicion (by the accused) of wrongfulness (by another person which could possibly result in financial gain for the accused) G into proof beyond reasonable doubt of knowledge of wrongfulness. In logic more would be necessary to satisfy the requirement of the law. The strength and source of the suspicion could be such that an honest man would be put upon inquiry - information from others, a report by the police and so on. Lack of inquiry may have been due to naiveté, stupidity, sensitivity or dishonesty. It is only the latter motivation which would provide the final nail of logic in the coffin of conviction that an accused knew that his conduct was wrongful.

H The Government had created a Decentralisation Board to assist industrialists to move to various growth points, including Atlantis. The cost of removal and other long-term incentives were given to industrialists to move to such an area. A certain company, AMS, had handled a variety of moves, including that of the appellants. AMS it was later discovered had fraudulently fleeced the Board by being paid out on bogus quotations. The directors of AMS, W and N fled to England. Appellants had formed a joint venture and had approached AMS to organise I and negotiate, for a fee, the move of their company to Atlantis. The Board paid out a sum of R117 600. From the sum contractors had been paid R11 989,25. AMS took its own fee, being 20% of the sum paid by the Board, namely R23 500. The balance was paid to first appellant (R38 470,57) and second appellant (R35 442). Appellants were charged with fraud or alternatively theft 'in the period 20 September 1984 to 6 February 1985 for an amount of R109 986,55'. The prosecutor had contended that the State had established dolus eventualis in that the J appellants suspected that the Board might

1988 (4) SA p395

A pay more than the amount to which they were entitled in terms of the scheme and were reconciled to this happening should it in fact occur. The magistrate adopted this proposition as an acceptable form of intent to justify a conviction for theft. The appellants were convicted and sentenced to five years' imprisonment each, suspended for five years. In an appeal,

Held, that nothing less than guilty knowledge would be sufficient to justify a conviction in an offence where dolus was required and culpa B insufficient.

Held, further, on the facts, that AMS has succeeded in pulling the wool over many eyes for many months: there was no reason why appellants should have been sharper than the Board or any other of AMS's clients. Appeal allowed and convictions and sentences set aside.

Case Information

Appeal from certain convictions and sentences in a magistrate's court. C The facts appear from the reasons for judgment.

W G Burger SC for appellants.

W J Downer for the State.

Cur adv vult.

D Postea (March 31).

Judgment

Van den Heever J:

The background of this case is not disputed. It may be summarised as follows:

In order to encourage the creation of employment opportunities in various areas which the Government has decided require such a stimulus, it created a Decentralisation Board in control of funds which that body E applies towards achieving the Government's objective. The Board considers applications for financial assistance from industrialists thinking of moving to a declared growth point and decides whether to hold out any carrot to an applicant and of what such incentive(s) should consist.

F Atlantis is an area pinpointed for favour. The incentives in fact available in 1984 and 1985, which is the time relevant to the present decision, were of two kinds: immediate and long-term. The former included, but was not strictly limited to, anticipated actual costs of moving the industry to its new location. The latter consisted of subsidising for a number of years certain expenses such as rental, staff housing, transport costs and so on.

The Board in 1985 took applications at face value. The evidence of Mr G Pienaar, the then Deputy Director of the Decentralisation Board, shows a total absence of any attempt to verify facts alleged in applications submitted. This enabled Messrs Worsley and Neanor, who created a company called Atlantis Management Services (Pty) Ltd ('AMS') for the purpose, to fleece the Board of large sums, a handsome proportion of which was used to line the pockets of these two gentlemen.

H The modus operandi of these two was simple. AMS operated from a good address and appeared to have useful connections. It would obtain an appointment from a client to effect relocation of the client's industry by conducting the exercise from start to finish, that is to handle I everything from dealing from scratch with the Decentralisation Board to obtaining premises and dealing with the cartage contractors, electricians, all involved in the physical move, up to the stage of satisfying the Board by means of an auditor's certificate that the removal had been completed. At that stage the Board would pay out its J grant and AMS would be paid its not inconsiderable fee.

1988 (4) SA p396

Van den Heever J

A The problem was that AMS with the connivance of accomplices prepared bogus quotations and invoices which were submitted to the Board, which paid out on the strength of these until it dawned on the Board that the dozen and more moves by industrialists to Atlantis handled by AMS seemed to have cost the Board proportionately far, far more than moves to other areas over much longer distances handled by others.

B The police were called in. They searched the premises of AMS and found certain documents which revealed that an amount of R117 600 had been paid out by the Board to Ruflor, which was the new name under...