The Director of Public Prosecutions v Schreiber

• Jurisdiction: South Africa
• Judge: Legodi J
• Judgment Date: 01 April 2010
• Docket Number: A169/08
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 08 March 2010
• Citation: 2010 JDR 0370 (GNP)

Legodi J:

This is an application for leave to appeal against the decision of this court, in terms of which the convictions imposed on the respondent on several counts of fraud were on appeal set aside. The matter was further remitted to the trial court to resume de novo.

2010 JDR 0370 p2

Legodi J

As a brief background, the respondent initially appeared in the Pretoria Regional court on 33 counts of contravening section 59 (1)(a) of the Value Added Tax Act 89 of 1991.

He was convicted of the 33 charges based on his plea of guilty or admissions made in terms of section 112 of Act 51 of 1977 and was sentenced to five years imprisonment. He was further ordered to compensate the South African Revenue Services in the amount of R491 470.65 in terms of section 300 of Act 51 of 1977.

At the hearing of the appeal, counsel for the respondent took the view that the respondent was charged as a representative of various corporate entities specified in the charge sheet and that, therefore, the only sentences that should have been imposed was a fine as envisaged in section 332(2)(b) of Act 51 of 1977.

It therefore became contentious during the appeal whether or not the respondent was charged in his representative capacity, the state contending that the respondent was charged in his personal capacity.

This court having found that the respondent was charged in his representative capacity, set aside both convictions and sentences as there had been no authorisation as required in terms of section 332(2)(a).

It is against this finding that the application for leave to appeal is now being sought. Leave to appeal is being sought by the state in terms of section 311 which entitles the state to appeal only on a question of law.

The grounds of appeal are:

2010 JDR 0370 p3

Legodi J

"2.1

Does the fact that the State referred in its charge sheet to the companies of whom the respondent was a director when he committed the crimes, warrant the inference that the State intended to charge only the companies in question?

2.2

Does the fact that section 332(5) of Act 51 of 1977 has been found to be unconstitutional prohibit the State from prosecuting a director, member or a servant of a corporate body in his personal capacity for crimes that he committed?

2.3

Is a court of appeal at liberty to quash a charge sheet where the procedure prescribed in section 85 and 86 of the Criminal Procedure Act, Act 51 of 1997, was not followed during the trial in the court a quo?

2.4

May a court of appeal remit a matter for a single trial to be held where the respondent is cited in his representative capacity on behalf...