S v Goertz

• Jurisdiction: South Africa
• Judge: Van Winsen J and Fagan J
• Judgment Date: 22 October 1979
• Hearing Date: 24 September 1979
• Court: Cape Provincial Division

Fagan J:

Appellant was tried and convicted in the regional court at Cape Town on a charge of contravening s 424 (3) of the Companies Act 61 of 1973. A sentence of 12 months' imprisonment was imposed. The conviction and sentence are appealed against.

Section 424 (3) provides as follows:

C 'Without prejudice to any other criminal liability incurred, where any business of a company is carried on recklessly or with such intent or for such purpose as is mentioned in ss (1), every person who was knowingly a party to the carrying on of the business in the manner aforesaid, shall be guilty of an offence.'

The intent and purpose mentioned in ss (1) are 'intent to defraud D creditors of the company or creditors of any other person' and 'any fraudulent purpose'.

Appellant was charged, according to the particulars on the chargesheet, only with carrying on the business of a company 'recklessly'. He was found guilty on that basis. It is accordingly not necessary to deal with the intent and purpose mentioned above.

E The issues at the hearing of the appeal were firstly the interpretation to be placed upon the word 'recklessly'; secondly whether the evidence established that appellant had carried on the business of a company recklessly; and thirdly whether the sentence should be reduced.

Mr Van Reenen, who appeared for appellant, submitted that the word F 'recklessly' was used in s 424 (3) in the sense of dolus eventualis. To obtain a conviction under the section, he contended, the State had to prove that appellant carried on a company's business whilst foreseeing detriment to the company as a real possibility and nonetheless persisted in his conduct. Mr Uys, who appeared for the State, submitted that the G word 'recklessly' was used in s 424 (3) in its ordinary meaning and that such meaning required an objective test to be applied, namely whether a reasonable businessman would have carried on business in the manner in which appellant did.

Counsel informed the Court that carrying on business recklessly was not an offence under the forerunner of s 424 (3), namely s 185 bis of the H Companies Act 46 of 1926 as amended, nor under the company laws of England on which s 185 was modelled. In the context in which the word 'recklessly' appears in s 424 (3) it has not been judicially defined.

The meaning of the word as intended by the Legislature must be determined. The Legislature is presumed to have used the word in its ordinary sense unless the context shows that a different meaning was intended. The ordinary sense of the word is sought in dictionaries. As meanings of 'recklessly', the Oxford English Dictionary gives

'in a reckless manner, carelessly, negligently, without regard to consequences, rashly, through carelessness, accidentally'.

Fagan J

'Reckless' Is Defined in Relation to Actions and Conduct As

'characterized or distinguished by negligent carelessness or heedless rashness'.

A The Afrikaans text, which is the signed version, employs the word 'roekeloos'. In the Handwoordeboek van die Afrikaanse Taal its meaning is given as

"sonder sorg, onverskillig, onbesonne, vermetel, nie op gevaar lettende nie".

The Tweetalige Woordeboek of Bosman, Van der Merwe and Hiemstra lists as its English equivalents 'reckless, rash, foolhardy'.

In S v Van Zyl 1969 (1) SA 553 (A) the Appellate Division had occasion to B consider the meaning of the word 'roekeloos' ('recklessly') as used in s 138 (1) of Ord 21 of 1966 (C). In terms of that section it is an offence to drive a vehicle on a public road recklessly or negligently. Heavier penalties are provided for reckless driving than for negligent driving. C The words 'recklessly' and 'negligently' are not defined in the Ordinance, save that s 138 (2) provides that:

'Without restricting the ordinary meaning of the word 'recklessly', any person who drives a vehicle in wilful or wanton disregard for the safety of persons or property shall be deemed to drive that vehicle recklessly.'

The appellant had been convicted of reckless driving. The evidence D established that he drove in a grossly negligent manner but not that he foresaw the danger arising from...