S v Kellner

• Jurisdiction: South Africa
• Judge: Steyn CJ, Ogilvie Thompson JA and Botha JA
• Judgment Date: 12 March 1963
• Court: Appellate Division

E Steyn, C.J.:

In the Court below the appellant was tried on five counts of contravening sec. 67 (3) of the Cape Municipal Ordinance, 19 of 1951, by exacting or accepting, in his capacity as a member of the Council of the Municipality of Cape Town, rewards or considerations, not being the allowances to which he was entitled as a councillor, for or on account F of his services as a councillor, in connection with the matters described in the indictment. The trial was by jury, BEYERS, J.P., presiding. He was convicted on four counts, and now appeals against the convictions on the ground that there are various misdirections and other defects, amounting to irregularities, in the summing up to the jury. For G the purposes of this judgment I propose to refer to two of these. The first is the instruction to the jury that the witnesses who are alleged to have made payments to the appellant are not accomplices, and the consequential omission to direct the jury as to the proper approach in regard to the evidence of accomplices. The other is described in a special entry, the substance of which is contained in the following paragraphs:

'1.

H The learned Judge in his summing up failed to review the evidence fairly, held the accused up to ridicule and treated with contempt any suggestion that the State witnesses might not be telling the truth.

2.

The learned Judge conveyed to the jury that he was convinced of the guilt of the accused, and throughout the said summing up on the individual counts displayed a partiality towards the

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State to such a degree as to identify himself with the prosecution.'

The charge against the appellant, on the counts on which he has been A covicted, is that he 'exacted or accepted' payment, in three cases, i.e. from persons by the names of Dracoulis, Bowie and Berg, for his assistance as a councillor in obtaining the City Council's approval of plans submitted for the erection of buildings, and in the other case from a certain Jacobson, for his efforts in attempting to persuade the City Council to withdraw or relax its requirements in regard to the B provision of an adequate fire escape in an existing building. The provision under which the appellant was indicted, reads as follows:

'Any councillor who directly or indirectly exacts or accepts or agrees to accept or attempts to obtain for himself or for any other person, any gift, reward or other consideration whatsoever (other than the allowances to which he is entitled in terms of the preceding provisions of this section) for or on account of his services as a councillor or C his doing or refraining from doing or having done or refrained from doing, anything in his capacity as a councillor, shall be guilty of an offence, and on conviction be liable to a fine not exceeding five hundred pounds or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.'

After all the evidence had been led, counsel for the accused, relying D upon sec. 257 of the Criminal Code, applied for the withdrawal of three of the charges from the jury, on the ground that in regard to each of these counts the witnesses were accomplices, that there was no proof aliunde of the commission of the offence, and no confirmation of their evidence. In dismissing the application, BEYERS, J.P., held that the provision creating the offence is peculiarly concerned with city councillors as such and with payments for a type of activity peculiar to E them, that it creates no offence which the general public can commit, and that in any case the requirement of confirmation of the evidence of an accomplice under sec. 257 would not apply in regard to the offence charged where the witness, as in the case of these witnesses, did not attempt to incite or instigate the accused into taking money from him, F but paid the money, according to the evidence for the State, at the instigation of the accused. He accordingly rejected the contention that the witnesses in question are accomplices. He was dealing more particularly with the witnesses Dracoulis and Berg and the witness on the count in respect of which the appellant was acquitted, but apart from the question whether or not their testimony is confirmed by other G evidence, there is, in regard to the question whether or not they are accomplices, no distinction between these witnesses and the others who testify to having made a payment to the appellant. In the result the learned Judge, in charging the jury, instructed them that none of the witnesses is an accomplice, and dealt with the evidence on that basis.

H The indictment alleges in the alternative that the appellant either exacted or accepted payments in contravention of the section. 'Exact' may mean to demand and enforce a payment or to require by force or authority, but according to the Shorter Oxford English Dictionary and the Standard Dictionary of the English language it may also mean to claim, call for, demand or require. The latter is the sense reflected by the Afrikaans text, in which 'exacts' in rendered by the word 'eis', and that, I think, is its meaning in this section.

In this Court counsel for the State argued that the offence of exacting

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payment under this section would be complete as soon as a councillor demands or requires payment for his services as a councillor, and that compliance thereafter with the demand or requirement would not turn the person to whom it was addressed into an accomplice for the purposes of A sec. 257. That may or may not be so, but would only be relevant if the appellant has been convicted of exacting payments. The verdict of the jury gives no indication as to whether they convicted the appellant of exacting or accepting. The case put to them by the presiding Judge was one of accepting and not one of exacting. This appears from the following remarks in his summing up:

B 'The only question that arises is: did he do what he could for them out of the goodness of his heart or out of his sense of civic duty, or was his interest in their affairs, his efforts on their behalf, assisted or stimulated by the fact that they paid him money? And that is what we are really concerned with in this case - did they or did they not? There is really nothing else. We know who the person is that got the money, if anyone got any money, and all we are now concerned with is: Did they give him money or did they not give him money?'

C The possible alternative verdict was not mentioned at all. It must be inferred, therefore, that the jury found the appellant guilty of accepting the payments alleged, and the complicity or otherwise of the witnesses must be determined on the footing.

The first question then is, who is an accomplice for the puroses of sec. 257? That section provides:

D 'Any court or jury may convict any accused of any offence alleged against him in the charge on the single evidence of any accomplice, provided the offence has, by competent evidence, other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of such court or jury, as the case may be, to have been actually committed.'

The reference is to 'any accomplice'. The Afrikaans version, in the E signed text, speaks of ''n mededader'. The latter expression would, I consider, convey the concept of a person who takes part in the actual commission of an offence by his own act or omission. That would exclude, in the case of an offence which can only be committed by a person of a particular class, any person not of that class, because by reason of the nature of the offence, such a person could not participate in the F commission of the offence as such. That the Legislature did not use the expression in that sense, appears from the preceding provisions. Sec. 254 (1), under the heading 'Evidence of Accomplices', 'Getuienis van Mededaders', commences with the words: 'Where any person who . . . has been an accomplice, either as principal or accessory', 'Waar iemand wat G . . . 'n mededader was, hetsy as hoofdader of medepligtige'. Sub-sec. (3) of the same section speaks of 'accomplice', 'mededader', without the addition of the explanatory phrase in sub-sec. (1), but the reference is quite clearly to an accomplice or 'mededader' in the same sense. That also applies to 'accomplice', where it appears in sec. 255 under the H same heading. The heading to sec. 257 is 'Sufficiency of Evidence', but I cannot presume that the Legislature, having at the outset, in the first section dealing with the evidence of accomplices, indicated its understanding of the words 'accomplice' and 'mededader', has here fallen into the obscurity of inconsistent language by using the same words in relation to the same kind of evidence in a different sense, without any indication of an intended change in meaning. I accept...