S v Essop

• Jurisdiction: South Africa
• Citation: 2014 (2) SACR 495 (KZP)

S v Essop
2014 (2) SACR 495 (KZP)

2014 (2) SACR p495

Citation	2014 (2) SACR 495 (KZP)
Case No	AR 931/2014
Court	KwaZulu-Natal Division, Pietermaritzburg
Judge	Gorven J, Steyn J and Marks AJ
Heard	March 7, 2014
Judgment	May 23, 2014
Counsel	JWB Wolmarans for the appellant, instructed by the Justice Centre, Pietermaritzburg.; IP Cooke for the respondent.

Flynote : Sleutelwoorde

Indictment and charge — Defective charge — Amendment of on appeal in terms of s 86(1) of Criminal Procedure Act 51 of 1977 — State aware of defect in charge-sheet when accused applied for discharge at end of G state's case but electing not to apply for amendment at that stage, but applying on appeal — Amendment would prejudice accused as he no longer had opportunity to lead evidence to rebut assertion that state wished to introduce — Application for amendment refused.

Fraud — Elements of — Prejudice — Where charge-sheet defective for want of H allegation that accused's conduct caused prejudice and whether prejudice could be inferred — Charge defective — Mere inference that accused's conduct caused prejudice not sufficient since that inference would violate accused person's constitutional rights in terms of s 35(3)(a) of Constitution. I

Headnote : Kopnota

The appellant was charged in a regional magistrates' court with 69 counts of fraud involving an amount of R837 000 and was convicted on all counts and sentenced to five years' imprisonment. On appeal he challenged his conviction and contended, inter alia, that the charge-sheet was defective in that it did not make the necessary allegation of prejudice. The allegation against the appellant was that he, as a shipping manager, authorised cheque J

2014 (2) SACR p496

A requisitions to be made by his employer in respect of freight charges, documentation charges and vallue-added tax payable on imported goods. He had allegedly misrepresented to his employer that it was indebted to Overseas Freight Carriers (OFC) and induced his employer to draw cheques in favour of OFC whereas in fact he was the sole proprietor of OFC and his employer did not owe OFC any money. The state applied on appeal to B amend the charge-sheet to correct this deficiency, even though at the conclusion of the state's case at the trial it had pertinently been brought to its attention in the appellant's application for discharge that the charge-sheet was defective, but it had proceeded with the trial without applying for an amendment.

Held, that in terms of s 35(3)(a) of the Constitution every accused person had C the right to a fair trial which included the right to be informed of the charge with sufficient detail to answer it. Any infringement was not to be considered in the abstract but by having regard to the circumstances of each case. (Paragraph [39] at 514 c.)

Held, further, that in a trial on a charge of fraud a mere inference that the accused's conduct caused prejudice was not sufficient since that inference would violate the accused person's constitutional rights in terms of D s 35(3)(a). (Paragraph [42] at 515 e.)

Held, further, that the charge-sheet in the present matter did not even once suggest that the appellant's conduct caused prejudice to his employer, either actual or potential. Had it done so it is conceivable that he might have advanced evidence to disprove such fact. Despite having made certain E admissions, the appellant pertinently placed in issue that the presentation of a cheque requisition was an authorisation and that such presentations were without the knowledge of his employer. He specifically denied that he had made a misrepresentation to his employer and denied that he had acted wrongfully or unlawfully. The risk of being prejudiced was real for the appellant if the element of prejudice was allowed to be inferred, as F the appellant no longer had the opportunity to adduce evidence to rebut the fact that his employer did not suffer any prejudice. (Paragraph [43] at 516 c–f.)

Held, further, that the purpose of a properly formulated charge-sheet was to bring awareness and clarity as to what the state intended proving. When the accused had to infer from facts, he had to make a deduction which created G uncertainty. The law reports were testament to the fact that courts, at times, draw the wrong inferences from facts proved before them. An accused should not have to figure out what challenges he faced, he should be informed. (Paragraph [44] at 516 f–g.)

Held, further, that to allow an amendment in the circumstances of the case would lead to an injustice as the state had had ample opportunity to cure the defect H and had elected not to do so. The proceedings should not be validated by allowing an amendment that would cause real or potential prejudice, as envisaged by s 86(4) of the Criminal Procedure Act 51 of 1977, to the appellant. (Paragraph [55] at 520 f–g.) Appeal allowed.

Annotations:

Cases cited

Case law

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): referred to I

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2002 (1) SACR 79 (CC) (2001 (4) SA 938; J 2001 (10) BCLR 995; [2001] ZACC 22): referred to

2014 (2) SACR p497

Moloi and Others v Minister for Justice and Constitutional Development and Others A 2010 (2) SACR 78 (CC) (2010 (5) BCLR 497; [2010] ZACC 2): referred to

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; [1999] ZACC 11): referred to

R v Alexander and Others 1936 AD 445: referred to B

R v Heyne and Others 1956 (3) SA 604 (A): referred to

R v Jones and More 1926 AD 350: distinguished

R v Kruse 1946 AD 524: dictum at 532 applied

R v Naidoo 1948 (4) SA 69 (N): referred to

R v Wood 1927 AD 19: referred to

S v Chauke and Another 1998 (1) SACR 354 (V): referred to C

S v De Blom 1977 (3) SA 513 (A): referred to

S v F 1975 (3) SA 167 (T): referred to

S v Fielies and Another 2006 (1) SACR 302 (C) (2004 (4) BCLR 385): referred to

S v Gardener and Another 2011 (1) SACR 570 (SCA): referred to D

S v Heller and Another 1964 (1) SA 524 (T): dictum at 535H applied

S v Hugo 1976 (4) SA 536 (A): referred to

S v Kruger en Andere 1989 (1) SA 785 (A): referred to

S v Kuse 1990 (1) SACR 191 (E): referred to

S v Langa 2010 (2) SACR 289 (KZP): referred to

S v Lavhengwa 1996 (2) SACR 453 (W): dictum at 482 f – g applied E

S v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; [2002] ZASCA 122): referred to

S v Makatu 2006 (2) SACR 582 (SCA): referred to

S v Mashinini and Another 2012 (1) SACR 604 (SCA): referred to

S v Motha 2012 (1) SACR 451 (KZP): referred to

S v Mpando [2004] 4 All SA 229 (C): referred to F

S v Nesane [2009] 1 All SA 464 (SCA): applied

S v Ngobeni [2014] ZASCA 59: referred to

S v Ngumbela 2008 JOL 21934 (E): followed

S v Pillay and Others 1975 (1) SA 919 (N): referred to

S v Sewela 2007 (1) SACR 123 (W): applied

S v Thobejane 1995 (1) SACR 329 (T): applied G

S v Van Aswegen 1992 (1) SACR 487 (O): dicta at 490 b – d applied

Savoi and Others v National Director of Public Prosecutions and Another 2014 (1) SACR 545 (CC) ([2014] ZACC 5): referred to

Shabalala and Others v Attorney General of Transvaal and Another 1995 (2) SACR 761 (CC) (1996 (1) SA 725; 1995 (12) BCLR 1593; [1996] 1 All SA 64; [1995] ZACC 12): dicta in para [37] applied. H

Legislation cited

Statutes

Constitution, 1996, s 35(3)(a): see Juta's Statutes of South Africa 2012/13 vol 5 at 1-30

The Criminal Procedure Act 51 of 1977, s 86(1) and (4): see Juta's Statutes of South Africa 2012/13 vol 1 at 2-365 and 2-366. I

Case Information

JWB Wolmarans for the appellant, instructed by the Justice Centre, Pietermaritzburg.

IP Cooke for the respondent.

An appeal from a conviction of fraud in a regional magistrates' court. J

2014 (2) SACR p498

Order

(a)

A The appeal is upheld.

(b)

The following verdict is substituted for that of the court a quo:

'The accused is acquitted on counts 1 – 69.'

Judgment

Gorven J (dissenting):

[1] The appellant confronted 69 charges of fraud in the regional court, Durban. These arose out of his employment as the shipping manager at Non-Ferrous Metal Works SA (Pty) Ltd (NFM) over a period stretching from 2 December 1994 to 6 February 1998. The charge-sheet read as C follows:

'GENERAL PREAMBLE:

WHEREAS at all relevant times:

1.

The accused was employed by NON-FERROUS METAL WORKS SA (PTY) LTD (the complainant) at Jacobs, Durban, KwaZulu-Natal;

2.

D He was the shipping manager in charge of all managerial duties relating to the transportation of goods imported to and exported from the complainant, including the authorisation of cheque requisitions for payments to be made by the complainant in respect of freight charges, documentation charges and value added tax (VAT) payable on imported goods;

3.

Cheques were duly issued by the complainant in accordance with E the cheque requisitions authorised by the accused;

4.

The amounts for which the aforementioned cheques were issued by the Accused were in fact not owed by the complainant to ''Overseas Freight Carriers''.

'Therefore,

F The accused is guilty of the crime of FRAUD, in that on or about the date, as mentioned in column 1 of schedule A and at or near Jacobs in the Regional Division of KwaZulu-Natal the accused did wrongfully, unlawfully and with intent to defraud, misrepresent to the persons mentioned in column 5 and/or NON-FERROUS METAL WORKS SA (PTY) LTD, that the amount of moneys in column 2 of schedule A, was due and G payable to ''Overseas Freight Carriers'' and did then and thereby induce the said persons mentioned in column 5 of schedule A and/or F...