S v Miles

• Jurisdiction: South Africa

S v Miles
1978 (3) SA 407 (N)

1978 (3) SA p407

Citation	1978 (3) SA 407 (N)
Court	Natal Provincial Division
Judge	Leon J and Kumleben J
Heard	February 7, 1978
Judgment	February 24, 1978

Flynote : Sleutelwoorde

Criminal procedure — Evidence — Document alleged to be in the possession H of accused — Document relevant to prosecution — Need to serve notice on accused to produce it — Such notice necessary before secondary evidence of its contents can be given — Notice to produce can be implied from the charge sheet.

Criminal procedure — Evidence — Misappropriation of money paid by complainant under a written contract — Written contract not produced — State not placing all available evidence before court — Failure by accused to testify — Such factor cannot be taken to strengthen or amplify the State's case.

1978 (3) SA p408

Headnote : Kopnota

When a document is known to be in the possession of an accused or in the possession of an opponent in a civil proceeding it is essential that a notice to produce be served upon him before secondary evidence as to its contents might be led.

When a party has been informed by necessary implication of the need for a specific document to be produced formal or express A notice to that effect is obviously unnecessary. In a criminal case one must therefore examine the nature of the charge as stated in the charge sheet and further particulars, if any, to determine whether such notice by implication has been given.

The complainant had entered into a written contract with a partnership of which appellant was a partner for the building of a house. From time to B time the complainant paid in money to the partnership account upon which only the appellant operated. Appellant misappropriated this money and was charged with theft. The written contract could not be found and the appellant gave no evidence. No notice had been served upon the appellant to produce the contract. The magistrate allowed secondary evidence of its contents to be given. In an appeal from a conviction,

Held, as it could not be said that the State in its search for the C document had acted with reasonable diligence and as there were no grounds for reading an implied notice into the charge sheet as framed that secondary evidence of its contents was inadmissible.

Held, further, as the evidence relating to the contract was readily available and ought to have been placed before the court and as the other evidence only circumstantially, in fact rather obliquely, tended to implicate the appellant, that his failure to give evidence did not amplify D or strengthen such evidence to the extent that it could be said that the contrectatio had been proved beyond reasonable doubt to have been unlawful.

Case Information

Appeal from a conviction in a magistrate's court. Facts not material to this report have been omitted.

P Pretorius for the appellant.

G J Viljoen for the State E

Cur adv vult.

Postea (February 24). F

Judgment

Kumleben J:

The appellant was convicted in the court a quo of the theft of R3 800 and sentenced to two years' imprisonment, the whole of which period was suspended on appropriate conditions. He appealed against the conviction and sentence but Mr Pretorius, who appeared on his behalf, confined his argument to the merits of the conviction.

G The charge sheet alleged that during the period from January to September 1974 the appellant stole an amount of R8 308,44 from the complainant, a Mr Meagher.

The background facts giving rise to this charge were not in dispute. The H appellant and a Mr Latham carried on business in partnership under the style of "Construction Services". This partnership for a fee undertook the supervision and construction of houses for clients. A prospective client would initially see Mr Latham. He would design the home and draw up the plans. The appellant would then take over and supervise the construction of the dwelling house. The customary fee was 15 per cent of the nett cost of the building. From time to time as the building progressed amounts of money would be paid to the partnership by or on behalf of the client to defray the building costs and for payment of the fee.

This was substantially the procedure followed when complainant

1978 (3) SA p409

Kumleben J

approached the partnership towards the end of 1973 in connection with a dwelling he proposed erecting at Westville. After preliminary discussion with Mr Latham, a written contract was concluded between appellant, on A behalf of the partnership, and complainant. (The fate of this document will be discussed in due course.) Initially the building of the house proceeded according to plan and in terms of their agreement. A banking account had been opened at the Trust Bank under the name "Construction Services/Meagher". Amounts were paid into this account by or on behalf of the complainant. The appellant, who had the sole right to make withdrawals B from this account, initially used the money for expenses incurred in connection with the erection of complainant's house. At a certain stage, however, the partnership was short of funds and sums from this account were withdrawn by appellant and used by him to meet other commitments of the firm. (For reasons which will later emerge it is not necessary to give C details of the amount thus used or to explain how the amount of R8 308,44 came to feature in the charge sheet.) The partnership failed to overcome its financial problems and in due course the partnership estate and inevitably the estates of the two partners were sequestrated. Mr Bruce, who was one of the State witnesses, was appointed trustee in the insolvent estates.

D By using the money for purposes unrelated to the dwelling house of complainant, the State alleged that appellant misappropriated it, and thus committed theft. The appellant, on the other hand, alleged that in terms of their agreement such monies were not in the nature of trust funds and could be used by him or the partnership for any purpose. It was his contention that the agreement gave rise to a "debtor/creditor" E relationship and that complainant's remedy was therefore exclusively a civil one. In R v Scoulides 1956 (2) SA 388 (A) at 394 SCHREINER JA explained the distinction between a trust relationship and other situations in these...