S v Avon Bottle Store (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Beyers JA, Botha JA and Van Winsen JA
• Judgment Date: 07 June 1962
• Court: Appellate Division

Beyers, J.A.:

The three appellants and five other persons all of them connected with the Avon Bottle Store, were charged in the Cape regional F court with malpractice in the conduct of the bottle store business. The eight accused are described in the charge sheet as follows:

"Accused No. 1:	Avon Bottle Store (Pty.) Ltd., a corporate body, trading at Voortrekker Road, Parow, as represented by Louis Miller, a director of the said corporate body.
Accused No. 2:	Jasper Smit, holder of a bottle liquor licence at premises called 'Avon Bottle Store', Voortrekker Road, Parow, a director accused No. 1, in his personal capacity.
Accused No. 3:	Louis Miller, a director of accused No. 1, in his personal capacity.
Accused No. 4:	Joseph Miller, a servant of accused No. 1, in his personal capacity.
Accused No. 5:	Johannes Hermanus Christoffel Stafford, a servant of accused No. 1, in his personal capacity.
Accused No. 6:	Wilhelmina Lotter, a servant of accused No. 1, in her personal capacity.
Accused No. 7:	Frank Louis Isaacs, a servant of accused No. 1, in his personal capacity.
Accused No. 8:	William Henry Dickson, a servant of accused No. 1, in his personal capacity.'

The first appellant is the above-mentioned accused No. 1, the second appellant is accused No. 3 and the third appellant, accused No. 5. The three appellants shared the same fate at the trial: each was found guilty on three of the four charges preferred against them. The following sentences were imposed:

Botha JA

Accused No. 1:	Count 1 - A fine of £300.
	Count 2 - A fine of £50.
	Count 3 - A fine of £50.
Accused No. 3:	Count 1 - Six months' imprisonment.
	Count 2 - A fine of £50.
	Count 3 - Sentence proposed for three years.
Accused No. 5:	Count 1 - Six months' imprisonment.
	Count 2 - A fine of £25.
	Count 3 - A fine of £25.

Other convictions and sentences imposed, were:

Accused No. 2:	Sentence postponed for three years, in terms of sec. 352 (1) (a) bis of Act 56 of 1955.
Accused No. 4:	Count 1 - A fine of £25.
Accused No. 6:	Count 1 - A fine of £50.
	Count 2 - A fine of £25.
	Count 3 - A fine of £25.
Accused No. 7:	Count 3 - A fine of £25.
Accused No. 8: was acquitted on all counts.

In addition to the above sentences the licence held in the name of accused No. 2 was declared forfeited in terms of sec. 168 bis of the Liquor Act, 30 of 1928.

D The three appellants and accused No. 4 appealed to the Cape Provincial Division against their respective convictions and sentences. The appeal of accused No. 4 was upheld, but in the case of the three appellants the appeals were disallowed on all counts. They now appeal to this Court with the leave of the Provincial Division. They are referred to in the E judgment of the Provincial Division as accused Nos. 1, 3 and 5, and they will be similarly referred to in this judgment.

(The learned Judge of Appeal then referred to the judgment of the Court a quo, analysed the facts and concluded.)

The only sentence affecting accused No. 1 which was attacked on appeal F is the order, in terms of sec. 168 bis of Act 30 of 1928, declaring forfeit the bottle liquor licence issued in the name of Jasper Smit. I have read what my Brother VAN WINSEN has to say in regard to the argument addressed to us in this connection. I agree with him that the order of forfeiture must stand.

I have also read the judgments of my Brothers BOTHA and VAN WINSEN G dealing with the appeals of accused Nos. 3 and 5 respectively. I agree with these judgments.

In the result the appeal of the first appellant (accused No. 1) is dismissed.

The appeal of the second appellant (accused No. 3) succeeds to the H extent that the sentence of six months' imprisonment on the first count is altered to a sentence of three months' imprisonment.

The appeal of the third appellant (accused No. 5) is dismissed.

Judgment

Botha, J.A.:

I agree with my Brother BEYERS that the appeal of the first accused should be dismissed. Having come to the conclusion that the evidence of Mrs. Field, as confirmed by the other evidence referred to by BEYERS, J.A., proves the commission of the offences charged

Botha JA

in the first, second and third main counts and for which the first accused, the company, was liable to prosecution, it follows that the third and fifth accused, a director and servant respectively of the A company, are in terms of sec. 381 (5) of Act 56 of 1955 deemed to be guilty of the said offences, unless it is proved that they did not take part in their commission and that they could not have prevented them.

In its case against, inter alios, the third and fifth accused, the State, however, relied not only on the provisions of sec. 381 (5) of Act 56 of 1955, but also on an alleged course of conduct showing that all B the accused acted together with a common purpose to commit the offences charged. For a conviction based on the provisions of sec. 381 (5) it would be sufficient for the State to prove that the offences charged were in fact committed, that the appellant company was, by reason of the provisions of sec. 381 (1) of Act 56 of 1955, liable to prosecution therefor, and that the third and fifth accused were either C directors or servants of the appellant company, and if the accused failed to discharge, on a balance of probabilities the onus placed upon them by the concluding provisions of sec. 381 (5), they would be deemed guilty of the offences charged. In such a case there could be no room for the application of the so-called cautionary rule of practice D relating to accomplice evidence (R v Ncanana, 1948 (4) SA 399 (AD)) except perhaps where proof that the accused is a director or servant depends upon the acceptance of the evidence of an accomplice, for the whole purpose of that rule is 'to ensure that, even if the section (sec. 257) is satisfied, there is some further guarantee that the right man has been brought to trial' (Rex v Mpompotshe and Another, 1958 (4) SA 471 (AD) at p. E 476) and there can be no danger of a person being untruthfully implicated by an accomplice in an offence in the commission of which that person is by statutory enactment expressly implicated.

F The conviction of the third accused of the offences set out in the first and second main counts and of the fifth accused of the offences set out in all three main counts, were, however, based not on the provisions of sec. 381 (5) but on a finding by the magistrate that they actively participated in the commission of those offences. This finding was based mainly on the evidence of the accomplice, Mrs. Field.

G Now it has been made quite clear in a long series of cases in this Court that while a trial Court is in terms of sec. 257 of Act 56 of 1955 legally entitled to convict an accused person on the single evidence of an accomplice where the offence has, by competent evidence other than the single and unconfirmed evidence of the accomplice, been proved to H have been actually committed, caution in dealing with the evidence of an accomplice is still imperative. (Rex v Nqamtweni and Another, 1959 (1) SA 894 (AD) at p. 898). In R v Ncanana, supra at p. 405, SCHREINER, J.A., states that no rule of practice requires a trial Court to acquit in the absence of evidence, other than that of the accomplice, connecting the accused with the crime charged, but emphasizes that

'what is required is that the trier of fact should warn himself . . . of the special danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a possible motive to tell lies about an innocent

Botha JA

accused, but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to...