S v Essop

• Jurisdiction: South Africa
• Judge: Steyn J and Marks AJ
• Judgment Date: 23 May 2014
• Docket Number: AR 931/2004
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 07 March 2014
• Citation: 2014 JDR 1040 (KZP)

Steyn J and Marks AJ:

[1]

We have had the benefit of reading the judgment prepared by our brother Gorven J in this matter. We are however respectfully unable to agree with his reasoning or the findings that support the order proposed by him. We cannot support the order for reasons that will follow hereunder:

[2]

An objective analysis of the charge sheet, read with the preamble thereto is silent as to whether any prejudice was caused and to whom. In our view, the charge sheet is defective for want of an essential averment. In the light of the aforesaid it becomes necessary to deal with the elements of the said crime.

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Fraud is defined as: "unlawfully making, with intent to defraud a misrepresentation which causes actual prejudice or which is potentially prejudicial to another". [1] (Emphasis added.) The elements of fraud that must be proved by the State are a misrepresentation, unlawfulness, the intent to defraud and prejudice, actual or potential. [2] Prejudice is required for the simple reason that some sort of harm needs to be caused and for purposes of the crime the harm is labelled as prejudice. [3] The importance of prejudice as an element of the crime being averred in the charge sheet has been emphasised by Cillié J in S v Van Aswegen [4] :

"Die grondslag van benadeling synde 'n element van die misdryf bedrog lê by tjekbedrog daarin dat die klaer vanweë aanvaarding van die tjek as betaling werklik of potensieël in 'n swakker posisie is as wat hy sou wees indien hy nie die tjek as betaling aanvaar het nie. Dit is die nadeel wat in die klagstaat uiteengesit moet word en deur die beskuldigde in art 112 – verrigtinge erken moet word."

[3]

On a procedural level it is required of the State to inform the accused of all the essential averments, and a charge sheet should contain all the essential allegations to be proved by the prosecution in order to sustain a guilty verdict. [5] Section 84 of the Criminal Procedure Act [6] reads as follows:

"Essentials of charge

(1)

Subject to the provisions of this Act and of any other law relating to any particular offence, a charge shall set forth the relevant offence in such manner and with such particulars as to the time and place at which the offence is alleged to have been committed and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.

(2)

Where any of the particulars referred to in subsection (1) are unknown to the prosecutor it shall be sufficient to state that fact in the charge." [7] (Emphasis added.)

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[4]

The purpose of section 84 is to enable an accused person to consider whether the charge should be contested and what evidence to tender to challenge the averments contained in the charge sheet. Without sufficient information about the legal and factual basis, an accused is at a disadvantage to defend himself against the charge preferred against him. [8] The right to be duly informed of a charge is guaranteed in section 35(3)(a) of the Constitution of the Republic of South Africa, 1996, which reads:

"Every accused person has a right to a fair trial, which includes the right –

(a)

To be informed of the charge with sufficient detail to answer it;" [9] (Emphasis added.) [10]

Gorven J in his judgment considers section 35(3)(a) to be no different from the requirement of "clear and unmistakable language" as stated in Alexander. [11] We disagree. In light of this view it is necessary to consider the right and the circumstances under which it would be violated. It goes without saying that any infringement would not be considered in the abstract but in having regard to the circumstances of each case.

[5]

Precision in drafting charge sheets, especially in cases of fraud has long been recognised. In S v Heller and Another [12] the Court in placing reliance on Alexander supra stated it as follows:

"What I have to decide is whether, in regard to the fraud charges, the State has at this stage of the trial adduced prima facie proof not merely that the

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accused have committed fraud but have committed it in the manner alleged in the indictment, because precision in pleading and charging fraud is generally, and a fortiori in a case of this complexity and magnitude, essential (R v Alexander, 1936 AD 445)."

[6]

In Nesane v S [13] the SCA dealt with the issue of essential averments, albeit in relation to the penalty provision, that was omitted from the charge sheet. Maya JA stated:

"Section 35(3)(a) of the Constitution of the Republic of South Africa, 1996 grants an accused the right to be informed of a charge with sufficient detail to answer it. As to what the accused's ability to answer a charge entails, Cameron JA remarked as follows in S v Legoa:

'[U]nder the constitutional dispensation it can certainly be no less desirable than under the common law that the facts the State intends to prove to increase sentencing jurisdiction under the [Criminal Law Amendment Act of] 1997 … should be clearly set out in the charge sheet. … Whether the accused's substantive fair trial right, including his ability to answer the charge, has been impaired, will therefore depend on a vigilant examination of the relevant circumstances.'" (Original footnotes omitted.)

As recently as 2012 the SCA has repeated the earlier warnings issued in Legoa [14] and Makatu [15] that care be exercised in drafting and preparing charge sheet(s) and indictment(s) to ensure that they correctly reflect all the necessary averments. [16]

[7]

In S v Langa [17] the majority of the Court recognised the principle that a fair trial demands that an accused has the requisite knowledge in sufficient time to make critical decisions which will bear on the outcome of the case as a whole. [18] It is for this very reason that a charge sheet ought to inform an accused with sufficient detail of the charge he or she should face. It should set forth the relevant elements of the crime that has been committed and the

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manner in which the offence was committed. In casu Gorven J finds that the appellant should have inferred that his conduct caused prejudice, and in doing so, he relies on R v Jones and More. [19] We disagree that a mere inference would suffice, since such inference would violate an accused person's constitutional right to a fair trial specifically section 35(3)(a). [20] What should be borne in mind is the development of our procedural law. In S v Thobejane [21] Marais J, as he then was, dealt with sufficient information in terms of the common law as follows:

"At common law the accused, according to the principles of a fair trial, is entitled to sufficient information to:

(a)

Enable him to understand what the charge against him is and what conduct on his part is alleged to constitute an offence, and

(b)

Sufficient information to enable him to instruct his legal adviser and to prepare his defence (which in practice would largely overlap with (a) above), and

(c)

Insofar as the charge sheet and summary of facts supplied by the State is inadequate for the above purposes to such further disclosure or information that may be required to achieve such purposes." [22] (Emphasis added.)

What was considered just and fair in 1926, in all likelihood would not per se pass constitutional muster in 2014. In Shabalala and Others v Attorney General of Transvaal and Another [23] the Court dealt with an accused person's right to the information contained in the docket, Mahomed DP stated the following:

"What a fair trial might require in a particular case depends on the circumstances. The simplicity of the case, either on the law or on the facts or both; the degree of particularity furnished in the indictment on the summary of substantial facts in terms of section 144 of the Criminal Procedure Act; the details of the charge read with such particulars." [24]

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[8]

The details relating to the prejudice caused and to whom are important particulars and should have been furnished. In the present matter it was not once suggested to the appellant that his conduct caused prejudice to NFM actual or potential. Had that been brought to his attention, it is conceivable that he might have advanced evidence to disprove such fact. The appellant, despite having made certain admissions in terms of section 115(2)(b) of the Act, pertinently placed in issue that the presentation of a cheque requisition was an authorisation and that such presentations were without the knowledge of NFM. In paragraph 3 of his plea explanation he specifically denied that he made a misrepresentation to the complainant as alleged and denied that he acted wrongfully or unlawfully and committed the crime of fraud. The admissions therefore were qualified by paragraphs 2 and 3 of the section 115 statement. It has to be borne in mind that the risk of being prejudiced is real for the appellant if it is allowed that the element of prejudice be inferred, since the appellant no longer has the opportunity to adduce evidence to rebut the fact that the company did not suffer any prejudice.

[9]

The purpose of a properly formulated charge sheet is to bring awareness and clarity as to what the State intends proving. When an accused has to infer from facts, he/she has to make a deduction which creates uncertainty. The law reports are testament to the fact that courts, at times, draw the wrong inferences from facts proved before them. [25] An accused should not have to figure out what challenges he faces, he should be informed.

[10]

In Rex v Jones and More [26] Solomon JA at page 354 states the following:

"In my opinion, however, it is not...