S v Nedzamba

• Jurisdiction: South Africa
• Judge: Liebenberg J
• Judgment Date: 02 April 1993
• Citation: 1993 (1) SACR 673 (V)
• Hearing Date: 02 April 1993
• Counsel: SJ Renke for the accused at the request of the Court DB Manyuha for the State
• Court: Venda Supreme Court

Liebenberg J:

This is a matter which came before us on automatic review. F

The accused was charged with one count of theft and one count of fraud. He pleaded guilty to both counts and after the magistrate questioned him in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977, he was convicted on both counts. According to the charge sheet and the facts admitted by the accused during his questioning by the magistrate, the accused stole two blank cheque forms from the cheque book of the G complainant and thereafter he made out one cheque to cash and presented it to the bank in order to withdraw an amount of R960 from the complainant's account. The magistrate convicted him on both counts. The counts were taken together for purposes of sentence and he was sentenced to a fine of R1 000 or ten months' imprisonment of which R200 or two months' imprisonment was suspended for two years, on condition that the accused was not convicted of an offence involving dishonesty committed during the H period of suspension

'and a further two months' imprisonment which is suspended for two months on condition that the accused refund an amount of R960 to complainant in two instalments with effect from 15 July 1992, at the rate of R480 through the magistrate Thohoyandou'.

When the matter initially came before Du Toit AJ, he raised the I following queries:

'1.

Kindly furnish reasons for the conviction on count 1, theft of 2 (two) "cheque leaves". Is the maxim "de minimis non curat lex" not applicable?

2.

Is the sentence a competent one? Is the magistrate legally entitled to impose the further "two months'" imprisonment which is suspended for two months on condition that accused refund an amount of R960 to complainant in two instalments with effect from J 15 July 1992 at the tune of R480?'

Liebenberg J

A The magistrate's reply to the first query is not completely clear. It however, appears as if the magistrate concedes that the conviction on count one should be set aside. His reasons for making this concession are however, somewhat uncertain. It does appear though that he is prepared to make the concession, although theft has been proved, on the basis that what the accused really wanted to do was to defraud the bank with the cheques. With regard to the actual question, namely whether the de minimis B rule should apply, the magistrate expresses no views at all.

In written submissions by the Attorney-General, he expressed the view that the maxim should not apply to count 1 and that the conviction on that count should stand. He however, seems to base this submission on the fact that one cheque was eventually used to perpetrate a fraud and not on the commercial value of the unused cheque forms. C

In view of the aforegoing approaches the matter was enrolled in order to hear argument on whether the maxim should be applied in respect of count 1.

As far as the facts are concerned, no evidence was presented as to the actual value of the stolen cheque forms. Mr Renke, who appeared amicus curiae for the accused, submitted that the two cheque forms should, for D purposes of this matter be treated as two pieces of paper having a value equal to the amount which the owner had to pay the bank to supply the forms to him. According to the facts admitted by the accused, the two stolen cheque forms were forms supplied by the Standard Bank of South Africa Ltd. It is well known that this is one of the major banking institutions in this country. The fact that it is the normal practice with banks to charge their clients an amount in respect of each cheque book E issued to them is so notoriously well known that I am of the view that I am entitled to take judicial notice of that fact. This was obviously also the view of Buys J, who delivered the judgment of the Full Bench in S v Murbane 1992 (1) SACR 298 (NC). At 301G-H he stated: 'Enigiemand met 'n tjekrekening weet dat handelsbanke nie tjekboeke gratis uitdeel nie. 'n Tjekblad het dus 'n inherente waarde'. In favour of the accused I will, F however, accept that the value of each cheque form is relatively small.

It is by now well settled that the de minimis rule is of...