S v Ndwambi

• Jurisdiction: South Africa
• Citation: 2016 (2) SACR 195 (SCA)

S v Ndwambi
2016 (2) SACR 195 (SCA)

2016 (2) SACR p195

Citation	2016 (2) SACR 195 (SCA)
Case No	611/2013; [2015] ZASCA 59
Court	Supreme Court of Appeal
Judge	Navsa ADP, Leach JA, Willis JA, Schoeman AJA and Meyer AJA
Heard	March 11, 2015
Judgment	March 31, 2015
Counsel	PW Nel for the appellant, instructed by the Justice Centre, Bloemfontein.; AM Ferreira for the state.

Flynote : Sleutelwoorde

Fraud — Elements of — Prejudice — Intention to prejudice — Police trap — Contention that state had never intended to pay for fake rhino horn and that therefore no prejudice — Matter looked at from point of view of deceiver.

Fraud — Elements of — Misrepresentation — Knowledge that representation C false — Proof of — Accused failing to give acceptable explanation and would be impermissible speculation in circumstances to hold that misrepresentation unknowingly made.

Conservation — Rhino horn — Sale of fake rhino horn — Sentence — Police official attempting to sell fake rhino horn to police trap — Sentence of six years' imprisonment confirmed on appeal. D

Headnote : Kopnota

The appellant, a police official, was convicted in a regional magistrates' court of committing fraud in that he had been complicit in a transaction in which his co-accused had sold a very good imitation of a rhino horn to a police trap. He was sentenced to six years' imprisonment. Having appealed unsuccessfully E to the High Court against his conviction and sentence, he argued in the present appeal that the proven facts had not established all the elements of the crime of fraud, in that there was no evidence that he had intended to deceive, nor of prejudice. It was contended that, as the state's evidence was to the effect that the police had no intention to pay for the rhinoceros horn, there could be no prejudice. The trial court had rejected his evidence F that he had no knowledge of the contents of the bag containing the fake horn that his co-accused had carried to the vehicle involved in the police trap. It also rejected his assertion that he had thought that his co-accused had been going to meet a client in connection with her works of art. The present court agreed with the trial court's assessment of the evidence, its adverse credibility findings relating to both the appellant and his co-accused, and ultimate rejection of their evidence. It also agreed that there G was not the slightest doubt that the state evidence was honest and accurate.

Held (per Meyer AJA; Navsa ADP, Leach JA and Schoeman AJA concurring), that in the circumstances of the case any suggestion that the appellant and his co-accused had not known that the object was a fake lacked a factual foundation and would therefore amount to impermissible speculation. It lay exclusively within their power to show what the true facts were but they H had failed to give an acceptable explanation. The prima facie inference that the false representation was made knowingly thus became conclusive. (Paragraph [17] at 201h – 202a.)

Held, further, as to the issue of prejudice, that the contention by the appellant ignored the long-standing principle that the law looked at the matter from the point of view of the deceiver, and not the deceived, and that it was I immaterial whether the person to be deceived was actually deceived or whether the prejudice was only potential. In any event, objectively, some risk of harm — which did not have to be financial, proprietary or even to the person to whom the representation had been addressed — might have been caused, given the contribution of such transactions to the illegal trade in rhinoceros horn in South Africa. (Paragraphs [18] – [22] at 202b – 203d.) J

2016 (2) SACR p196

A Held, as to sentence, that, when the reprehensible nature of the conduct was assessed, together with the intention to deceive and the fact that the accused was a policeman who was supposed to be on official duty at the time, the sentence of six years' imprisonment was appropriate. The appeal was dismissed. (Paragraph [23] at 203e – f.)

Held (per Willis JA, dissenting), that it was not proved beyond a reasonable B doubt that the appellant was an accomplice to the crime of fraud, even though he clearly was an accomplice to some kind of crime. To come to the conclusion that he was guilty of fraud, one had to draw inferences that could not be justified — the replica was of such a superlatively good quality that it was only the day after the arrest, when it was confirmed by the C forensic laboratories, that the scandal of the imitation was revealed. In the circumstances it could not be concluded beyond a reasonable doubt that the appellant knew either that he was an accomplice to a false representation being made or that he knew that the horn was fake. Neither was it proved that the appellant foresaw that a false representation might be made in regard to the sale of a rhino horn that was a fake, or even that he foresaw the possibility that a fake rhino horn might be sold. (Paragraphs [28], [32] D and [45] at 205d – g, 206e – 207a and 211b – c.)

Cases cited

E Southern Africa

Ex parte Lebowa Development Corporation Ltd 1989 (3) SA 71 (T): dictum at 101E – I applied

Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and Others 1978 (1) SA 914 (A): referred to

Goodrich v Goodrich 1946 AD 390: referred to

R v Blom 1939 AD 188: referred to F

R v Davies 1928 AD 165: referred to

R v Davies and Another 1956 (3) SA 52 (A): referred to

R v Dyonta and Another 1935 AD 52: discussed and applied

R v Heyne and Others 1956 (3) SA 604 (A): dictum at 622F applied

R v Hymans 1927 AD 35: referred to

R v Kantor 1969 (1) SA 457 (RA): referred to G

R v Kruse 1946 AD 524: referred to

R v Makokosa and Another 1927 TPD 106: referred to

R v Mlambo 1957 (4) SA 727 (A): referred to

R v Myers 1948 (1) SA 375 (A): referred to

R v Ncanana 1948 (4) SA 399 (A): referred to

R v Wallendorf and Others 1920 AD 383: referred to H

Rowe v Rowe 1997 (4) SA 160 (SCA): referred to

S v Bell 1963 (2) SA 335 (N): referred to

S v Bernardus 1965 (3) SA 287 (A): referred to

S v Boesak 2000 (1) SACR 633 (SCA) (2000 (3) SA 381; [2000] ZASCA 24): referred to I

S v Boesak 2001 (1) SACR 1 (CC) (2001 (1) SA 912; 2001 (1) BCLR 36; [2000] ZACC 25): referred to

S v Brown 2015 (1) SACR 211 (SCA) ([2014] ZASCA 217): referred to

S v Campbell 1991 (1) SACR 503 (Nm): referred to

S v De Jager and Another 1965 (2) SA 616 (A): referred to

S v Dladla 1980 (1) SA 526 (A): referred to

S v Dougherty 2003 (2) SACR 36 (W) (2003 (4) SA 229): referred to J

2016 (2) SACR p197

S v Du Preez 1972 (4) SA 584 (A): referred to A

S v Dube 1994 (2) SACR 130 (N): referred to

S v Essack and Another 1974 (1) SA 1 (A): referred to

S v Hlomza 1987 (1) SA 25 (A): considered

S v Johannes 1980 (1) SA 531 (A): referred to

S v Magidson 1984 (3) SA 825 (T): referred to

S v Mkhize [2014] ZASCA 52: referred to B

S v Mngqibisa 2008 (1) SACR 92 (SCA) ([2007] ZASCA 119): dictum in para [9] applied

S v Mtsweni 1985 (1) SA 590 (A): referred to

S v P 1972 (3) SA 412 (A): referred to

S v Steynberg 1983 (3) SA 140 (A): referred to

S v Van der Mescht 1962 (1) SA 521 (A): referred to C

S v White 1973 (4) SA 174 (W): referred to

The State v Kruger and Another 1961 (4) SA 816 (A): referred to.

England

Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722 (HL) ([1940] AC 152): referred to D

Derry v Peek (1889) 14 App Cas 337: dictum at 374 applied.

Case Information

PW Nel for the appellant, instructed by the Justice Centre, Bloemfontein.

AM Ferreira for the state.

An appeal from a decision in the Free State Division, Bloemfontein E (Van Zyl J and Moloi J), dismissing an appeal from a conviction and sentence in a regional magistrates' court.

Order

The appeal is dismissed. F

Judgment

Meyer AJA (Navsa ADP, Leach JA and Schoeman AJA concurring):

[1] Arising from an incident that occurred on 29 October 2003 at the Shell Ultra City, Kroonstad, where a fake rhinoceroses (rhino) horn was G sold in a police trap for R350 000, the appellant, Mr Muvhuso Calvin Ndwambi, and a co-accused were convicted in the regional court, Kroonstad, of the crime of fraud committed in the course of a police trap. The appellant was found to have been complicit in the transaction. He was sentenced to six years' imprisonment. The appellant appealed unsuccessfully to the Free State High Court against his conviction and H sentence. The court a quo, however, granted him leave to appeal to this court against both.

[2] The appellant contends in this court that the proven facts as found by the trial court did not establish all the elements of the crime of fraud. The evidence did not, he contends, prove either the required intent to I deceive, which is an aspect of the element of intent to defraud, or the element of prejudice.

[3] Inspector Oberholzer, who was attached to the Bloemfontein Diamond and Gold branch of the South African Police Service (SAPS), received information from an informer that the appellant's co-accused J

2016 (2) SACR p198

Meyer AJA (Navsa ADP, Leach JA and Schoeman AJA concurring)

A wished to sell a rhino horn. This prompted the police to set a trap at 11h00 on 29 October 2003 at the Shell Ultra City, Kroonstad (the filling station). Captain Oertel, who was attached to the same branch of the SAPS, was in command of the police action. He and Insp De Klerk, also a member of the same branch, went to the filling station ahead of B Oberholzer and the informer to observe and assist Oberholzer in the action. Upon their arrival they observed the appellant sitting in the driver's seat of a red Volkswagen Golf motor vehicle (the car) parked in the parking area of the petrol station, and his co-accused sitting next to him.

C [4] When...