S v Delange

• Jurisdiction: South Africa
• Judge: Mthiyane, Heher JJA and Comrie AJA
• Judgment Date: 01 December 2004
• Docket Number: 563/2003
• Court: Supreme Court of Appeal
• Hearing Date: 11 November 2004
• Citation: 2005 JDR 0041 (SCA)

Mthiyane JA:

[1] The appellant, then a 50 year old farmer and advocate, was convicted in the regional court, Port Elizabeth, on 11 counts of fraud and sentenced to four years' imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977. All the counts were taken together for purposes of sentence. The appellant appealed to the Eastern Cape Division (before Jansen and Jennett JJ) but his appeal failed. He now appeals to this court, with the leave of the court a quo, against conviction only.

[2] Before going into the merits it is necessary to deal with two preliminary matters: the condonation application and the point in limine taken by the appellant. I deal first with the condonation application. The present appeal was noted late. The judgment of the court a quo was delivered on 30 May 2001 and leave was granted on 27 June 2001. Nothing appears to have been done until the appeal lapsed on 27 October 2001. The appellant applied for condonation of the late filing of the notice of appeal some 2 years and 4 months later. His explanation for the delay was that he had had difficulty in obtaining the record. This was refuted by counsel for the state, Mr Marais. Mr Marais did not appear in the court a quo, where the state was represented by Mr Van der Walt. The appellant himself has had different firms of attorneys and a different counsel, Mr

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Buchanan, representing him previously. Mr Cilliers appears for him in the present appeal.

[3] It is clear that there has been considerable delay in prosecuting the appeal. But, attempting to establish where the blame lies is not easy, especially where legal representatives have been changed in midstream and some have dropped out along the way. The matter is compounded further by the alleged difficulties in obtaining the record. Although this is moot, it is a factor which cannot simply be dismissed out of hand. Weighed up against all of this is the need for us to consider the prospects of success. Where it appears that the appellant has an arguable case, it would in my view not serve the interests of justice to shut the door on him by refusing to grant the requested indulgence. In the condonation application we are not required to be convinced that the appeal will probably succeed. [1] Because it appears that the appellant is not entirely to blame for the delay and has presented to us what appears to be an arguable case, I consider that he should be granted the relief he seeks. Accordingly, to the extent that the appeal might have lapsed, the appellant is allowed to reinstate it and his application for condonation of the late filing of the notice of appeal is granted.

[4] I proceed to consider the so-called point in limine, which is really a point of law. The charges against the appellant arose from claims for rebates which he

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submitted to the Department of Agriculture through a magistrate in Graaff-Reinet. He claimed that he had transported or caused to be transported stock fodder from Paarl to Lootsfontein, a farm in the drought stricken area. (I shall deal more fully with the facts later in the judgment.)

[5] It was submitted by the defence that the state had failed to prove its case in that the claims for rebates submitted by the appellant were made in the name of a close corporation, Plattebos Plase BK, ('Plattebos'), which owned the farm 'Lootsfontein' in the district of Graaff-Reinet. The appellant was the sole member of the said close corporation. The cheques issued by the Department of Agriculture in settlement of the claims were made out to Plattebos. Consequently, the appellant contended that any representation that occurred was made by the close corporation. The appellant denied that he acted in his personal capacity, contending that he had acted on behalf of the Corporation. Section 332(5) [2] Criminal Procedure Act 51 of 1977 ('the Act') deals with the criminal liability of corporate officials. In the present matter it does not appear from the charge sheet that the charges were preferred pursuant to the section. The appellant contends further that any offence that might have been committed could only have been committed by the close corporation.

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[6] It is clear that the appellant was charged in his personal capacity and not in a representative capacity. The charge sheet and further particulars refer to 'die beskuldigde' and 'hy'. The name of the close corporation is not even mentioned. Nor is there any invocation in those documents of any of the provisions of s 332 of the Act.

[7] The defence had access to the docket. The appellant knew from the outset that the state's case was that he had personally perpetrated the alleged frauds, albeit through the close corporation, of which he was the only member. Exhibit after exhibit was handed in, without objection, reflecting the appellant's personal role in the compilation and submissions of claims for rebates. In my view, the state was entitled to charge the appellant personally although he was a member of the close corporation, where its case was that he had personally committed the frauds. Dealing with a case in such a situation, Botha JA said the following in S v Hjul:

'If the appellant had been proved to have personally committed the alleged acts constituting the offence, he would have been guilty of the offence charged, irrespective of whether or not he was proved to be a director of the company, and reliance upon the provisions of s 381(5) [the equivalent, in the previous Criminal Procedure Act 56 of 1955 of s 332(5) of the Act] would have been unnecessary.' [3]

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[8] In the present matter the charge sheet is not ambiguous, but there is a variance between the charge sheet and the evidence. Thus, for example, in counts 1 to 11 of the charge sheet, it is alleged that the appellant misrepresented that he was entitled to the rebates and that he received payments. The evidence, on the other hand, disclosed that the close corporation under the appellant's personal direction claimed the rebates and received payment.

[9] Variance between the charge sheet and the evidence adduced is governed by s 86 of the Act which is usually read with s 88. Section 86 reads:

'Court may order that charge be amended

(1) Where a charge is defective for the want of any essential averment therein, or where there appears to be any variance between any averment in a charge and the evidence adduced in proof of such averment, or where it appears that words or particulars that ought to have been inserted in the charge have been omitted therefrom, or where any words or particulars that ought to have been omitted from the charge have been inserted therein, or where there is any other error in the charge, the court may, at any time before judgment, if it considers that the making of the relevant amendment will not prejudice the accused in his defence, order that the charge, whether it discloses an offence or not, be amended, so far as it is necessary, both in that part thereof where the defect, variance, omission, insertion or error occurs and in any other part thereof which it may become necessary to amend.

(2) The amendment may be made on such terms as to an adjournment of the proceedings as the court may deem fit.

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(3) Upon the amendment of the charge in accordance with the order of the court, the trial shall proceed at the appointed time upon the amended charge in the same manner and with the same consequences as if it had been originally in its amended form.

(4) The fact that a charge is not amended as provided in this section, shall not, unless the court refuses to allow the amendment, affect the validity of the proceedings thereunder.'

Section 88 reads:

'Defect in charge cured by evidence

Where a charge is defective for the want of an averment which is an essential ingredient of the...