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[2015] ZASCA 59
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Ndwambi v S (611/2013) [2015] ZASCA 59; 2016 (2) SACR 195 (SCA) (31 March 2015)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 611/2013
DATE: 31 MARCH 2015
Not Reportable
In the matter between:
MUVHUSO CALVIN
NDWAMBI
...................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Neutral Citation:
Ndwambi v The State
611/2013
[2015] ZASCA 59
(31 March 2015)
Coram:
Navsa ADP, Leach and Willis JJA and Schoeman and Meyer AJJA
Heard: 11 March 2015
Delivered: 31 March 2015
Summary:
Criminal Law – fraud –
whether intent to deceive and prejudice proved – appellant
correctly convicted of
fraud.
ORDER
On
appeal from:
Free State High Court, Bloemfontein (Van Zyl and
Moloi JJ sitting as court of appeal):
‘The
appeal is dismissed.’
JUDGMENT
Meyer
AJA (
Navsa ADP and 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 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 the
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 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 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
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
Inspector de Klerk, also a member of
the same branch, went to the
petrol station ahead of 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.
[4]
When Oberholzer and the informer arrived, Oberholzer too observed the
car in the parking area but the appellant and his co-accused
were at
that stage standing behind it. They parked next to the car.
The appellant’s co-accused walked to the
driver’s side of
Oberholzer’s vehicle and he was introduced to her as the
prospective buyer of the rhino horn.
She fetched a wrapped
article from between the seats in the front of the car and then
climbed into the rear of Oberholzer’s
vehicle and informed him
that it was the rhino horn. He unwrapped the article and it
appeared to him to be real rhino horn.
She told him that the
rhino horn originated from Mozambique, that it belonged to the
appellant and that the asking price was the
sum of R350 000.
Oberholzer requested her to call the appellant so that he could
discuss the transaction with him, but she
refused, saying that the
appellant was observing the surroundings to ensure that everything
was in order. Her statement that
the appellant was observing
accorded with what appeared to Oertel and De Klerk. Oberholzer
and the appellant’s co-accused
agreed to the asking price of
R350 000.
[5]
Oberholzer gave a pre-arranged signal to his colleagues who then
approached the appellant and his co-accused. Oertel introduced
himself and the police officers to the appellant’s co-accused
and he arrested her. Oberholzer and De Klerk approached
the
appellant. They introduced themselves to him and Oberholzer
arrested him. He immediately denied that he knew his
co-accused
and said that he had only given her a lift from a nearby bridge to
the petrol station. De Klerk’s search
of the car revealed
that the appellant was a police officer: his police
identification card, service pistol and police dockets
were found.
A few works of art belonging to the appellant’s co-accused were
also found in the boot of the car.
[6]
The appellant’s co-accused conducted an arts and craft’s
business at Hartbeespoortdam. The appellant testified
that he
had been introduced to her during June/July 2003 because she had
required transport for the conveyance of her works of
art from
Johannesburg to Brits. Since then at her instance he had
transported her on 3 occasions to Brits. His co-accused,
however, denied that he had ever transported her anywhere before 29
October 2003. She, according to the appellant, had telephoned
him early during the morning of 29 October 2003, while he was at home
in Kagiso, and requested him to transport her to Kroonstad
where she
was
scheduled to meet a
client. According to the appellant he was on official duty that
day but had decided not to go to work
because he was tired. He
contradicted himself by also testifying that he stayed off duty
because he was ill. The appellant
acceded to the request to
transport his co-accused to Kroonstad. He had driven from
Kagiso to the Hillbrow Police station
where he was stationed.
That was where they had agreed to meet. His co-accused had a
few works of art and a plastic
bag with her but he could not see what
it contained and did not ask about it. She had directed him to
Kroonstad and to where
he should park at the filling station.
They had got out of the car but he merely stood around viewing the
surroundings.
He denied any complicity in the transaction and
testified that he had been very surprised when the police officers
arrived, arrested
him and searched the car. He had seen the
rhino horn for the first time at the police station, after his
arrest.
[7]
It is not necessary to refer in any detail to the evidence of the
appellant’s co-accused. She, in turn, attempted
to shift
the blame to the appellant. She had travelled to the garage,
she testified, to meet a client who was interested
in buying her
works of art. The appellant had taken her there in order to
sell his rhino horn to the same client, who was
also interested in
buying a rhino horn for display in his bar. The client had
asked her to find him someone who would sell
a rhino horn to him and
the appellant was introduced to her as a person wishing to sell one.
Hence their journey together
to Kroonstad. She saw the rhino horn for
the first time when it was shown to her at court.
[8]
The appellant’s counsel conceded that the trial court correctly
rejected the evidence of the appellant and that of his
co-accused.
That concession was correctly made. The appellant’s
exculpatory version was so wholly improbable as to
be plainly
untruthful and palpably false. I do not propose to go into all
the unsatisfactory features to his evidence referred
to by the trial
court in its well-reasoned judgment. I need only highlight a few
matters which go to show the untruthfulness of
his account.
[9]
The appellant’s version that his co-accused, on the occasions
mentioned by him, would have travelled with her works of
art from
Hartbeespoortdam to Johannesburg in order for him to then transport
her from Johannesburg to Brits is wholly improbable.
Hartbeespoortdam is much closer to Brits than Johannesburg is to
Brits. Furthermore, the unavoidable inference is that the
appellant and his co-accused had not gone to the filling station in
order for the appellant to sell works of art to a prospective
buyer.
The appellant’s co-accused did not have any works of art with
her when she got into Oberholzer’s vehicle
in order to
negotiate the sale. She only took along with her what appeared to
have been a rhino horn. The works of art were
found in the boot
of the car immediately after their arrest. The fake rhino horn
was the only object found in Oberholzer’s
vehicle.
[10]
But the matter goes further. The evidence relating to contact
between their respective cell phones revealed 32 calls
from the
appellant’s cell phone to that of his co-accused and 38 calls
from her cell phone to his during the period 22-29
October 2003.
The appellant was unable to proffer any plausible explanation for the
constant contact between their respective
cell phones in the days
running up to their attendance at the petrol station. Also, the
appellant’s denial to the police
officers at the time of his
arrest that he did not know his co-accused is palpably false.
That is what prompted the police
to obtain the records relating to
their cell phones. Clearly, that evidence was obtained in order
to refute the appellant’s
version at the time of his arrest
that he did not know the appellant and that he had merely given her a
lift from a nearby bridge
to the petrol station.
[11]
The trial court’s assessment of all the evidence, its adverse
credibility findings relating to the appellant and his
co-accused and
its rejection of their evidence cannot be assailed nor can its
favourable credibility findings concerning the three
State witnesses
– Oertel, Oberholzer and De Klerk. The accounts of the
State witnesses were satisfactory and accord
with the probabilities.
They corroborated each other in material respects. A reading of
the record leaves not the slightest
doubt that all of the State
evidence was honest and accurate.
[12]
It is common cause that the article sold was a mere imitation of a
rhino horn. The trial court did not convict the appellant
and
his co-accused of the statutory offence of contravening s 14(2), read
with ss 1, 11, 12, 40-42 and Schedule 3 of the Nature
Conservation
Ordinance 8 of 1969 (FS), with which they were charged in the
alternative. Criminal liability, in terms of the
provisions of
the Ordinance, is imposed inter alia for the unauthorised possession,
conveyance, buying and selling of ‘any
product from any part of
the body of a wild or exotic animal of a species specified in
Schedule 3’. A rhino is so specified.
[13]
This brings me to the appellant’s first contention that the
proven facts as found by the trial court did not establish
the
element of intent to defraud, and in particular the aspect of intent
to deceive. Intent to defraud has two principal
aspects:
intention to deceive and intention to induce a person to alter or
abstain from altering his or her legal position.
The intention
to defraud can be with direct intent or by
dolus eventualis
.
(See JRL Milton
South African Criminal Law and Procedure
Vol
II 3
rd
Ed at 730.)
[14] The
locus
classicus
, as was pointed out by Prof Milton, at 731, in regard
to intent to deceive is
Derry v Peek
[1889] UKHL 1
;
(1889) 14 App Cas 337
, at
374, in which Lord Herschell said that-
‘
.
. . fraud is proved when it is shown that a false representation has
been made (1) knowingly or (2) without belief in the truth,
or (3)
recklessly, careless whether it be true or false. Although I
have treated the second and third as distinct cases,
I think the
third is but an instance of the second, for one who makes a statement
under such circumstances can have no real belief
in its truth.’
[15]
Ex parte Lebowa
Development Corporation Ltd
1989 (3) SA 71
(T), at 101E-I, is
also apposite. There Stegmann J said the following regarding fraud by
dolus eventualis
:
‘
The
essence of fraud involving
dolus
eventualis
appears to
be the deceit practised by the representor in suggesting that to be
true which he knows may not be true. He knowingly
exposes the
representee to a risk (that the representation may be false) and
deceitfully leaves the representee ignorant of his
exposure to that
risk.
Any
such case of fraud by
dolus
eventualis
may, I
think, be analysed further to disclose another fraud underlying and
accompanying the first. When anyone makes a representation
of fact
whilst not knowing whether his representation is true or false, he
thereby actually makes two distinct representations
of fact. The
first represents as fact that which he does not know to be either
true or false. The second is a misrepresentation
of fact relating to
his own state of mind: it is a representation (usually implied) that
he has an honest belief in the truth of
the first representation.
Such second representation is one that he knows to be false, and it
therefore establishes a case of fraud
by
dolus
directus
simultaneously with the fraud by
dolus
eventualis
relating
to the first representation.’
[16]
The appellant found himself on the horns of a dilemma at his criminal
trial: saying that he honestly believed the imitation
was real
could potentially have exposed him to conviction of attempt on the
alternative statutory charge (compare eg JM Burchell
South African
Criminal Law and Procedure
Vol I 3
rd
Ed at 351 et
seq); whilst saying that he did not hold such belief, would have
exposed him to a conviction of fraud. Instead,
he falsely
distanced himself from the transaction. He denied knowledge of
what was contained in the bag or wrapping that
his co-accused carried
to Oberholzer’s vehicle and he testified that to his knowledge
his co-accused was going to meet a
client in connection with her
works of art. His evidence and that of his co-accused having
been rejected left the trial court
without the benefit of credible
evidence from either of them and, with only the State evidence to
determine their respective guilt
or innocence of the charges they
faced. It is trite law that a court is entitled to find that
the State has proved a fact
beyond reasonable doubt if a prima facie
case has been established and the accused fails to gainsay it.
(See
S v Boesak
2000 (1) SACR 633
;
[2000] ZASCA 24(SCA)
, paras
46-47.)
[17]
The appellant’s co-accused represented to Oberholzer that the
item she was offering for sale was a rhino horn and that
it
originated from Mozambique. The asking price for what had been
expressly represented to be a rhino horn was R350 000.
The
representation, it is common cause, was false. The prima facie
inference, unless gainsaid by credible and reliable evidence,
is that
the false representation had been made knowingly, or without belief
in its truth in the sense described in
Derry
, or without
knowledge whether it was true or false but knowingly exposing
Oberholzer or the State to a risk that it may be false
and
deceitfully leaving him ignorant of the exposure. Any
suggestion that they did not know that the representation was false
lacks a factual foundation and would therefore amount to
impermissible speculation or conjecture. It lay exclusively
within
the power of the appellant and his co-accused to show what the
true facts were but they failed to give an acceptable explanation.
The prima facie inference became conclusive in the absence of
rebuttal.
[18]
The other requisite, which it is contended had not been proved by the
State was prejudice, actual or potential. The appellant
contends that
because the State’s evidence was to the effect that the police
had no intention to pay for the rhino horn there
could be no
prejudice. This contention, however, ignores the longstanding
principle that the law looks at the matter from
the point of view of
the deceiver and not the deceived.
[19]
The accused in
R v Dyonta & another
1935 AD 52
were
convicted of fraud in that they falsely pretended to a Mr Potgieter
that certain stones were diamonds in order to induce him
to pay a
certain price for the stones. The accused had been arrested
immediately after they had handed the stones to Potgieter
who,
although he had pretended to be buying, had no intention of buying
them. He had informed the police of the proposed
sale and they
were accordingly on hand when the delivery took place. The
matter came before this court on a question of law
reserved at the
request of the State: whether there could be a conviction for
fraud when the person to whom the representation
was made at no stage
intended to act on the representation.
[20] Wessels CJ, in
delivering the unanimous judgment of the court, reaffirmed the law as
laid down in two previous judgments of
this court, thus (at 57):
‘
If
the misrepresentation is one which in the ordinary course is capable
of deceiving a person, and thus enabling the accused to
achieve his
object, the fact that the person to whom the representation is made
has knowledge or a special state of mind which
effectually protects
him from all danger of prejudice does not entitle the accused to say
that the false representation was not
calculated to prejudice.’
And, in answering the
point of law in favour of the State, he concluded as follows (at 57):
‘
The
law looks at the matter from the point of view of the deceiver.
If he intended to deceive, it is immaterial whether the
person to be
deceived is actually deceived or whether his prejudice is only
potential.’
[21] This approach has
been consistently followed over more than eighty years. In
S
v Mngqibisa
2008 (1) SACR 92
;
[2007]
ZASCA 119
(SCA), para 9, Mlambo JA said this:
‘
Further
clarification regarding the nature of the false representation came
in
R
v Kruse
1946 AD 524
at 533 where the court stated that
“
.
. . if the false representation is of such a nature as, in the
ordinary course of things, to be likely to prejudice the complainant,
the accused cannot successfully contend that the crime of fraud is
not established because the Crown has failed to prove that the
false
representation induced the complainant to part with his property.”
This
approach has consistently been followed over the years. See
R v
Dyonta and Another
1935 AD 52
at 57;
R v Heyne and Others
1956
(3) SA 604
(A) at 622;
S v Kruger and Another
1961 (4) SA 816
(A) at I 832D - E; and
S v Friedman
(1)1996 (1) SACR 181
(W).’
(Also
see
S v Brown
2015
(1) SACR 211
;
[2014] ZASCA 217
(SCA), para 118.)
[22]
In the present case, an intention to deceive was proved. It was
calculated to prejudice. Objectively, some risk of harm
could
have been caused. It need not be financial or proprietary or
necessarily even to the person it was addressed (see
R v Heyne &
others
1956 (3) SA 604
(A), at 622F). In assessing
prejudice it is significant to note that even though the transaction
in question involved fake
rhino horn it must indubitably be so that
transactions of this kind contribute to the illegal trade in rhino
horn, which we as
a country must all be concerned about. The
appellant was thus rightly convicted of fraud.
[23]
As to sentence: although the appeal was also directed against
sentence, counsel for the appellant and for the State are ad
idem
that the sentence of six years’ imprisonment is appropriate.
I agree. In sentencing the appellant the trial
court exercised
its discretion judicially and the sentence does not induce a sense of
shock (see
S v De Jager
1965 (2) SA 616
(A) at 628H-629B).
All the relevant factors and circumstances were well considered and
duly taken into account by the trial
court. When the
reprehensibility of the conduct is assessed as well as the intention
to deceive it is important to bear in
mind that one is dealing with a
policeman who was supposed to be on official duty at the time.
Interference with the imposed
sentence is, therefore, not warranted.
[24] In the result the
following order is made:
‘The appeal is
dismissed.’
PA Meyer
Acting Judge of Appeal
Willis JA (dissenting)
[25] Having
read the judgment of Meyer AJA, I regret that I am unable to agree
that the magistrate and the high court hearing the
first appeal
correctly found that the appellant was guilty of fraud. I should have
found the appellant guilty of an attempt to
contravene s 14 (2) of
the Nature Conservation Ordinance 8 of 1969 and made an appropriate
adjustment to sentence. The contravention
of the Ordinance was
alleged as an alternative count. This section reads as follows:
‘
(14)
(2) Except under authority of a permit which may be issued by the
Administrator, no person shall-
(a)
possess,
convey, buy, sell, grant, exchange, process or manufacture any
product from any part of the body of a wild or exotic animal
of a
species specified in Schedule 3;
(b)
sell any such
processed part or product; or
(c)
possess any
processed part of product of a rhino horn.’
Schedule
3 includes ‘all rhinoceroses’.
Section
40 provides for a penalty and shall be guilty of an offence as
follows:
‘
(1)
Any person who-
(a)
contravenes or fails to comply with a provision of section 2 (3), 7,
14 (2), 15
(a)
,
16
(a)
or 33;
…
shall
be guilty of an offence and liable upon conviction –
(i)
In the case of an offence referred to in paragraph (a), to a fine not
exceeding R 100 000 or to imprisonment
for a period not
exceeding 10 years or to both such fine and such imprisonment;
…’
The
question of prejudice or potential prejudice as an element of fraud,
took up much space in counsel’s heads and some time
was spent
hearing argument on this point during the hearing of the appeal. This
issue also provided the main reason why the high
court granted
special leave to appeal to this court. Following
R
v Heyne
[1]
I agree with Meyer AJA that at least
potential prejudice has been established in this case. This aspect
therefore need not detain
me.
[26]
Concerning the alternative charge, after setting out the facts, the
high court said:
‘
Voortspruitend
uit voormelde, in besonder die feit dat die voorwerp ‘n
nagemaakte renosterhoring was, kon daar uiteraard nie
‘n
skuldigbevinding op die alternatiewe aanklag wees nie.’
This may be
translated as follows:
‘
Arising
from the above, in particular the fact that the item in question was
a fake rhinoceros horn, there could not, in the nature
of things, be
a conviction on the alternative count.’
(My
translation.)
I shall revert to the issue of the alternative count later. I
accept, however, that the appellant cannot be found guilty
of dealing
in rhinoceros (rhino) horn.
[27] In his
judgment the magistrate said:
‘
Beskudigde
1 het duidelik die wanvoorstelling gedoen deur voor te gee dat dit ‘n
egte Renosterhoring is. Die ander elemente
is ek tevrede, naamlik
wederregtelikheid, kousale verband, potensiële nadeel en opset
is teenwoordig. Beskuldigde 2 het baie
duidelik saamgewerk met
beskuldigde 1. Hy het haar al die pad vervoer vanaf Johannesburg na
Kroontad. Hy het observasie gehou,
terwyl sy die transaksie moes
afhandel. Uit die staanspoor het sy ook vir die Staatsgetuie gesê
dat hulle twee saam in die
ding was, maar dat sy die onderhandelinge
behartig. Dit is volgens die Staatsgetuies wie se weergawe deur die
Hof aanvaar is. Sy
hele houding en optrede is duidelik dat hy sou
deel in die opbrengs en ek is tevrede dat hy as medepligtige net so
skuldig soos
beskudigde 1 is.’
This may be
translated as follows:
‘
Accused
1 clearly made the misrepresentation by claiming that this was a
genuine rhinoceros horn. I am satisfied that the
other
elements, namely, unlawfulness, causal connection, potential
prejudice and intention were present. Accused 2 clearly worked
together with accused 1. He transported her all the way from
Johannesburg to Kroonstad. He kept watch while she concluded the
transaction. From the outset, she [accused 1] said to the State
witnesses that the two of them were working together in the matter
but that she took care of the negotiations. This is according to the
version of the State witnesses, which I accept. His
[accused
2’s] entire conduct and actions clearly show that he would
share in the proceeds and I am satisfied that he, as
an accomplice,
was just as guilty as accused 1.’
This passage was referred to by the high court with approval.
[28] I accept
that:
(i)
The appellant worked together with accused 1 in the transaction; and
(ii)
He transported her from Johannesburg to Kroonstad; and
(iii)
He kept watch for her during the transaction with the police
officers; and
(iv)
Accused 1 told the police from the outset that she and the appellant
worked together even though she took care of the negotiations;
(v)
The appellant would share in the proceeds of the crime; and that he
was an accomplice to a crime.
I am also of the opinion that the totality of the evidence compels
the conclusion that the appellant could not reasonably have
believed
that he was involved in something other than a ‘rhino horn’
transaction. In other words, he could not have
believed, for example,
that he was dealing in drugs, the illegal diamond trade or something
completely lawful. My difference of
conclusion from Meyer AJA on this
point is therefore a narrow one. My point of departure from the
magistrate, the high court and
my colleagues is that I do not accept
that it was proven, beyond a reasonable doubt, that he was an
accomplice to the crime of
fraud, even though he clearly was an
accomplice to some kind of crime or another. To come to the
conclusion that the appellant
is guilty of fraud, one must draw
inferences that I do not think can be justified in this case.
[29] I
agree that in her evidence in the witness box, accused 1 made accused
2 out to be a dealer. I accept that the appellant was
a poor witness
and that his version cannot be accepted.
[30]
It is, however, trite that the fact that the accused is an
unsatisfactory - even a lying witness – does not necessarily
justify the conclusion of his guilt.
[2]
Care must be exercised in not drawing an inference of guilt merely
because he was lying.
[3]
Ultimately, guilt is about the inferences that, as a matter of logic,
may be drawn.
[4]
Inference must carefully be distinguished from conjecture or
speculation.
[5]
[31] I
do not see the relevance of Meyer AJA’s reliance on
S
v Boesak.
[6]
In that case it was said that:
‘
If
there is evidence calling for an answer, and an accused person
chooses to remain silent in the face of such evidence, a court
may
well be entitled to conclude that the evidence is sufficient in the
absence of an explanation to prove the guilt of the accused.
Whether
such a conclusion is justified will depend on the weight of the
evidence
.’
[7]
(Emphasis added.)
In
this case the appellant, unlike Boesak, did give evidence in court.
In any event, the weight of evidence in this case does not
justify
the conclusion that the appellant was guilty of fraud. Despite the
appellant’s lies and accused 1 having said
that the
appellant was the ‘dealer’ in rhino horn, I do not think
it can safely be concluded that the appellant either
knew of the
falsity of representations which accused 1 made to the police about
the horn or that he knew it was a fake.
[8]
In any event, it has been trite since
R
v Ncanana
[9]
that the evidence of a co-accused should be treated with caution.
[10]
In my opinion, in a case such as this, corroboration of accused 1’s
evidence on the directly relevant issue of his
state of
knowledge was needed before any inference as to his guilt on the
count of fraud could be made.
[11]
[32] The major difficulty for the State in this case is that the fake
rhino horn was of a superlatively good quality. It was so
good, in
fact, that it was only the day after the arrest had been effected,
when the object had been sent to the forensic laboratories,
that the
scandal of the imitation was laid bare for all to see. There were, no
doubt, some red faces. The photographs handed in
to court as exhibits
tell a story. Made of synthetic fibre, the fake horn, as
traded, looked indistinguishable from the real
thing. When it was
sawn through near the tip, it became apparent that it had even been
stuffed with paper and sawdust – presumably
so that it would
not sound hollow when handled and so that the weight would appear to
be authentic.
[33] Inspector Oberholzer was one of the police officers involved in
the setting up of the trap and effecting the arrest of the
two
accused. He had 20 years of experience as a police officer, 15
of which were in the diamond and gold division and six
in the
combatting of crime relating to threatened species. He said at
the time when he first saw the horn it looked ‘definitief
eg’
(‘definitely genuine or authentic’ – my
translation).
[34] Although the evidence was that the appellant had been a police
officer, there was no evidence that he was any kind of expert
in what
may constitute a rhino horn. Indeed, he said he worked in the section
of the police dealing with murder and robbery and
denied any
knowledge of dealing in endangered species of animals. This was not
disputed by the State.
[35] As
was said in
R v Blom
:
[12]
‘
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
(1)
The proved facts should be such that they exclude every reasonable
inference save the one to be drawn. If they do not exclude
other
reasonable inferences, then there must be a doubt whether the
inference sought to be drawn was correct.’
[13]
Blom
was referred to in
S
v Mtsweni
, which, as I have already
indicated, related, in turn, to the inferences to be drawn in a
situation that may include the fact that
the accused was lying.
[14]
Applying
Blom
,
it cannot in my opinion be concluded, beyond reasonable doubt, that
the appellant either knew that the item traded as rhino horn
was a
fake or that he did not.
[15]
All that may safely be concluded is that he intentionally, and aware
of the likely unlawfulness of his conduct, took part in dealing
in an
item which subsequently turned out to be fake. Of what – if
anything – does this make him guilty?
[36] Section 256 of the
Criminal Procedure Act 51 of 1977 (the CPA)
provides that where the evidence does not prove the commission
of the offence with which an accused person has been charged but
proves the attempt to commit it, he or she may be found guilty of an
attempt to commit the offence. The section reads as follows:
‘
If
the evidence in criminal proceedings does not prove the commission of
the offence charged but proves an attempt to commit the
offence or an
attempt to commit any other offence of which an accused may be
convicted on the offence charged, the accused may
be found guilty of
an attempt to commit that offence or, as the case may be, such other
offence.’
[37]
In this case one must be wary of the trap of circuitous reasoning.
This was the reasoning adopted by appellant’s counsel.
It goes
like this: it cannot be proved that the appellant knew that the rhino
horn was a fake and therefore he cannot be guilty
of fraud but it
also cannot be proven that he did not know that it was a fake and
therefore he cannot be convicted of an attempt
to sell rhino horn.
The universe of possible options of what the appellant thought the
object to be is limited to two: either he
thought it was rhino horn
or he did not. It must be one of these two and, therefore, if it
cannot safely be concluded that he thought
it was not rhino horn, it
can at least safely be concluded that he thought that it was indeed
rhino horn and therefore, in my opinion,
that he was guilty of the
lesser offence of an attempt to contravene the ordinance.
[38]
In this regard, the reasoning of Didcott and Wilson JJ in
S v
Dube
[16]
is instructive. In that case the accused had been charged with
alleged possession of a machine gun and ten rounds of live ammunition
that its magazine contained, in the case of each, without the
requisite permit, and thus to have contravened ss 32(1)(
a)
and
32(1)
(e),
read with s 39(1)
(h)
of the then applicable
Arms and Ammunition Act 75 of 1969. The firearm in question was a
pistol, known as a ‘Stetchkin’.
It was of Russian origin
and had a calibre of nine millimetres. The accused admitted
possession of the firearm but claimed that
he did not know of its
potential for automatic or sustained fire and, accordingly, that it
was a machine gun. The magistrate disbelieved
him and, relying on
circumstantial evidence, concluded that the accused must, indeed,
have known that the firearm was a machine
gun. He convicted the
accused as charged. On appeal, Didcott J, with whom Wilson J
concurred, found: ‘That the appellant
knew the pistol to be
capable of automatic fire was not, I believe, established’.
[17]
The court set aside the conviction for possession of a machine gun
and substituted it with a conviction of possession of
a ‘plain
firearm’. In other words, the court, even though it could not
be certain that the mental element of the accused’s
state of
mind was that he thought the firearm was not a machine gun, it
accepted that he at least thought it was a ‘plain
firearm’
because only one of two options was possible and the less serious one
was therefore the safer one to conclude.
[39] As this is a minority
judgment and the issue of an intricate and technical nature I shall,
however, deal more fully with which
of the two options – that
is, whether the appellant should be found guilty of fraud or an
attempted contravention of the
ordinance - is to apply. In
Dube
the court referred to
S v Hlomza
[18]
in which Corbett JA, delivering the unanimous judgment of this court
said:
‘
The
true enquiry, as is indicated by the authorities quoted above, is
whether or not the appellant knew that possession or dealing
in the
tablets in question was or might possibly be, unlawful, irrespective
of whether he knew what law was being contravened and
what the
precise provisions of the law might be’.
The appellant in that case
had been charged with possession of methaqualone. Corbett JA
referred to
S v Magidson
[19]
with approval, where Ackermann J, with Gordon J concurring had found
that knowledge may be inferred by reference to
dolus
eventualis.
[20]
Corbett JA found that:
‘
It
seems very likely that appellant, living in the milieu which he did,
would have been aware that there was such a thing as an
illegal drug
trade and that certain types of tablets were the subject matter of
such trading.
’
[21]
What
is relevant here is that, although it was not proven that the accused
knew that he was dealing in methaqualone, it was proven
that he knew
he was dealing in tablets, the trade of which was prohibited.
That situation is different from one where a person
thinks he is
dealing in a prohibited object but in fact is not. I am mindful
of the potential pitfalls in reasoning by analogy
– the
presumptions of similarity may not be justified – but reference
thereto by way of intellectual construction is
recognised by no less
than
The Oxford Dictionary
as a useful tool.
[22]
The situation here – in contrast to
Magidson
–
is comparable to the drug dealer who thinks he is dealing in
prohibited drugs, but is in fact dealing in tablets that are
not
prohibited – such as, for example, a placebo.
[40]
In
Magidson,
Ackermann and Gordon JJ confirmed a conviction
of unlawful possession of imitation banknotes in contravention of s
21
(d)
, read with s 21
(c)
of the Reserve Bank Act 29 of
1944. They referred with approval to the judgment of Marais J
in
S v White
[23]
in which he found that the accused could not be found guilty on the
main count (which related to deception and forgery) because
it was
not proven that the accused had the intention to defraud but merely
that he had the intention to possess the imitation banknotes.
[24]
The accused was convicted on the alternative count, which related to
possession.
[25]
[41]
The facts in the case before us are somewhat different. It can
neither be found that the appellant knew that he was dealing
in fake
rhino horn nor that he knew he was making a false representation.
[42]
It is not ‘any old’ knowledge of unlawfulness that is
sufficient to prove guilt. I do not understand Corbett
JA, in
Hlomza
, to have said or even implied that this is so. It
would amount to a re-instatement of the doctrine of
versari
in
re illicata
.
[26]
That is inconceivable. The doctrine was made inapplicable in
South Africa after protracted debate by this court over
a number of
years.
[43] The previous
applicability of this doctrine was perhaps most famously set out in
South Africa in
R v Wallendorf & others
[27]
as follows:
‘
(I)t
must be noted that there may be a guilty mind even though there is an
absence of any intention knowingly to do the act
which is
prohibited by law. In many cases it is sufficient if the accused
intended to commit a crime, even though it were different
from that
with which he is charged. Indeed, it has been held by many Judges
that the mere fact that the accused wilfully did something
which he
knew to be morally wrong supplies the
mens
rea
which is
necessary to commit a crime.’
[28]
In
S v Van Der
Mescht
,
[29]
after
an extensive analysis of the authorities, Steyn CJ criticised this
passage found in
Wallendorf
.
[30]
Following
Van Der
Mescht
, the
versari
doctrine was decisively rejected as
having no place in our law in
S v Bernardus
.
[31]
The
dolus – or more accurately the
dolo
malo
–
even if ‘eventualis’ must relate to the specific act in
question. Just as in
Hlomza
the dolus had to relate to illegal
trade in drugs, and in
Magdison
and
White
to possession
of false or reproduced bank notes, so too must the dolus in this case
relate to the making of a false representation.
It is also not
sufficient that the dolus is an intention to deal unlawfully in the
trade of rhino horn, in order to secure a conviction
on the main
count.
[44]
In
S v Dougherty
[32]
the court alluded to the fact that dolus means something more than
mere unqualified intention and that the expression in our common
law
authorities that a crime must be committed
dolo malo
conveys a
sense of ‘evil’ intention – that is to say an
intention, coupled with an awareness of knowledge of
the wrongfulness
of the act.
[33]
I think the German word ‘Unrechtbewusstsein’ referred to
by Professor JC De Wet in his
Strafreg
captures this concept
very well.
[34]
[45]
Before one can find that a person knew of the wrongfulness of his
act of fraud, one must first be able to find that he knew
not only
that the representation had been made but also that it was false. In
this case, as far as dolus directus is concerned,
I do not think it
can 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. Upon a consideration of
whether dolus eventualis is present,
I do not think that it has been
proven 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.
[46]
In
S v P
[35]
and
S v Du Preez
[36]
it was made clear that when it comes to dolus eventualis the enquiry
is not what the appellant ought to have foreseen but what
he did
foresee.
[37]
When considering the crime of fraud, the objectivity with which the
issue of potential prejudice is viewed ‘in the ordinary
nature
of things’ - as set out in
R v Kruse
[38]
and
followed in
Heyne
[39]
- must not be confused with the test as to the subjective intention
of an accused person when it comes to dolus. The subjective
intent to
conceal or pervert the truth remains an essential element of
fraud.
[40]
[47] I therefore do not
see the relevance of
Ex parte Lebowa Development Corporation
Ltd
[41]
upon which Meyer AJA has relied. As Meyer AJA has noted, Stegmann J
said:
‘
The
essence of fraud involving
dolus
eventualis
appears to
be the deceit practised by the representor in suggesting that to be
true
which he knows
may not be true
. He
knowingly
exposes the representee to a risk (that the representation may be
false) and deceitfully leaves the representee ignorant of exposure
to
that risk.’
(Emphasis added.)
In
the case before us, I do not think it can be concluded, beyond
reasonable doubt, that the appellant knew that it may not be true
that the item in question was indeed a genuine rhino horn.
[48]
I am strengthened in my thinking that the appellant was wrongly
convicted of fraud by reference to further cases dealing with
imitations of the real thing. In
Magdison
the high court
hearing the appeal agreed with the magistrate that ‘the
reproductions were made on cheap paper which would
on inspection,
sight, touch and handling not easily mislead even an ignorant or
illiterate person’.
[42]
That situation was very different from the one with which we now have
to contend: the fake rhino horn was a most convincing imitation.
[49] Similarly in
White
,
Marais J said:
‘
Nou
moet ek sê dat daar een belangkrike feit is wat ten gunste van
die beskudigde tel wat motief betref, en dit is dat die
afdrukke wat
gemaak is, gemaak is op afrolpapier, dit wil sê goedkoop
papier, wat self deur ’n onkundigde of ongeletterde
persoon nie
maklik by aanraking en beskouing en hantering aangesien sou gewees
het vir papier waarop ’n R10- noot gedruk
is nie. Ons is almal
bekend met die soort papier waaarop ons banknote gedruk is. Dit is
papier wat hard voorkom, glad, en wat ‘n
baie sterk geluid maak
indien dit gevou of gekreukel word. Die papier waarop hierde afdrukke
voor die Hof is – etlike honderde
van hulle – beantwoord
nie daardie beskrywing nie. Dit is die sterkste punt wat ten gunste
van die beskuldigde tel wat sy
motief betref’
.
[43]
This may be translated as
follows:
‘
Now
I must say that there is one important fact that operates in favour
of the accused insofar as dolus is concerned, and that is
that the
paper upon which the reproductions were made is ordinary printing
paper, that is to say cheap paper which, in itself cannot
easily be
confused, even by an ignorant or uneducated person with the paper
upon which a R10 note is printed, when it is touched,
looked at or
manipulated. We are all familiar with the kind of paper upon which
our banknotes are printed. It is paper which feels
hard and smooth
and which makes a very loud noise when it is folded or crumpled. The
paper on which these reproductions are before
the Court –
several hundred of them – does not satisfy that description.
This is the strongest point that operates
in favour of the accused
insofar as his intention is concerned.
’ (My
translation.)
[50] In
White,
the
court referred with approval to
S v Bell
[44]
in which Miller J, with Caney J concurring, said albeit in the
context of forgery rather than fraud:
‘
The
vital question in this case is whether the State discharged the
onus
of proving that the
appellant made the false document in question
with
fraudulent intent
. If
the appellant did not act as he did with intent to defraud, or if he
was not proved to have had that intent,
to
whatever other consequences his conduct may expose him, he was not
guilty of the crime of forgery,
for an intention to defraud is a necessary ingredient of that crime.
’
[45]
(My emphasis.)
Forgery
and fraud are both closely related crimes, having similar requisites
as to intention.
[46]
[51]
The facts of this case are distinguishable from those in
S v
Campbell
[47]
upon
which the high court relied in confirming the conviction. In
Campbell
the accused had sold zirconia to the police, claiming they were
diamonds. His own version of events was that he had been
dealing in
zirconia.
Campbell
therefore does not assist the State in this
case. Similar considerations apply to a consideration of
R v
Dyonta & another
[48]
upon which the high court and Meyer AJA have relied. In
Dyonta,
this court dismissed the appeal against a finding by Tindall J
who had said: ‘The onus, of course, lay on the Crown to prove
that the accused knew that the stones were not diamonds.’
[49]
Tindall J, referring to the evidence that the stones were obviously
not diamonds and that the accused had claimed to have a knowledge
of
diamonds, found that the onus had been discharged by the Crown.
[50]
Tindall J referred to
R v Makokosa & another
[51]
– which was concerned with dealing in fake diamonds –
where the point about the onus was emphasised.
[52] In
Dube,
Didcott J referred with approval to
S v Kantor
[52]
in
which Beadle CJ said:
‘
To
take another example: I assume from what was said by
SCHREINER,
JA, in the passage
quoted, that to deal unlawfully in brass in the genuine belief that I
was a “precious” metal, say
gold, is an attempt to
contravene a statute making it an offence to deal unlawfully in
“precious” metals, notwithstanding
the fact that brass is
not a “precious” metal, and notwithstanding the fact that
the accused’s criminal purpose
was thus impossible of
attainment.’
[53]
This
example by Beadle J, with whom Macdonald AJP and Macaulay AJA
concurred, seems to me to be directly in point and singularly
analogous. Once again, I am mindful of the caution that must be
applied in reasoning by analogy.
[53] The judgment of
Schreiner JA to which Beadle CJ referred was
R v Davies &
another
.
[54]
Dube
also refers thereto.
[55]
The passage in
Davies
to which both
Kanto
r and
Dube
referred is the
following:
‘
To
sum up, then, it seems that on principle the fact that an accused’s
criminal purpose cannot be achieved, whether because
the means are,
in the existing or in all conceivable circumstances, inadequate, or
because the object is, in the existing
or in all conceivable
circumstances unattainable, does not prevent his endeavour from
amounting to an attempt.’
[56]
[54] It therefore seems
to me that the correct conviction of the appellant should be one of
attempt to commit the statutory offence
of dealing in rhino horn in
respect of which he was charged in the alternative (s 14(2)
of
Ordinance 8 of 1969 (Nature Conservation Ordinance)
.
Obviously, the different conviction would result in a different
sentence but as I am in the minority, no useful purpose
would be
served by setting out what I should consider an appropriate sentence,
in all the circumstances, would be. I should have
upheld the appeal
against both conviction and sentence.
NP Willis
Judge of Appeal
APPEARANCES
For Appellant: PW Nel
Instructed by:
Bloemfontein Justice Centre
Bloemfontein
For Respondent: AM
Ferreira
Instructed by: Director of Public Prosecutions
Bloemfontein
[1]
R v Heyne & others
1956
(3) SA 604
(A) at, esp at 622E-F. See also
The
State v Kruger & another
1961 (4)
SA 816
(A) at 833B-C.
[2]
See for example
S v Mtsweni
1985 (1) SA 590
(A) at 593I-594D;
S v
Steynberg
1983 (3) SA 140
(A) at 146A -148D;
R v Mlambo
1957 (4)
SA 727
(A) at 738B-D and
Goodrich v Goodrich
1946 AD 390.
[3]
See for example
Mtsweni,
supra.
[4]
Ibid.
[5]
See for example
Caswell
v Powell Duffryn Associated Collieries
[1939] 3 All ER 722
at 733, referred to with approval in
S
v Essack & another
1974 (1) SA 1
(A) at 16D and
Mtsweni
at 593F.
[6]
S v Boesak
2001
(1) SA 912 (CC).
[7]
Para 24.
[8]
I use the word ‘knew’ in this
judgment both in the direct sense (dolus directus) and the
constructive sense (dolus
eventualis) in that the appellant must
have forseen the possibility that the rhino horn may have been
a fake but was nevertheless
content to proceed with the transaction
on that basis. I deal with the question of dolus eventualis more
fully later in the body
of this judgment.
[9]
R v Ncanana
1948
(4) SA 399
(A).
[10]
At 405-6.
[11]
See
S v Dladla
1980 (1) SA 526
(A) at 529A-530A and
S
v Johannes
1980 (1) SA 531
(A) at
532H-533H.
[12]
R v Blom
1939 AD
188
[13]
At 202-203.
[14]
S v Mtsweni
1985
(1) SA 590
(A) at 593H.
[15]
Lest the point be lost, I repeat what I have said
earlier that I use the word ‘knew’ both in the direct
sense (dolus
directus) and in the constructive sense (dolus
eventualis) that the appellant must have foreseen the possibility
that the rhino
horn may have been a fake but was nevertheless
content to proceed with the transaction on that basis.
[16]
S v Dube
1994
(2) SACR 130
(N).
[17]
At 133
h
.
[18]
S v Hlomza
1987
(1) SA 25
(A) at 32F.
[19]
S v Magidson
1984
(3) SA 825
(T).
[20]
Magidson
at
830A-B;
Hlomza
at
32B-C.
[21]
At 32I.
[22]
See for example
The
Oxford Dictionary 6 ed (2007)
.
[23]
S v White
1973
(4) SA 174
(W).
[24]
At 178A-D.
[25]
Ibid.
[26]
Commonly known among lawyers simply as ‘the
versari doctrine’, the maxim is more fully expressed as
versari in reillicata imputantur omnia
sequuntur ex delicto
– those who
engage in unlawful acts are held liable in law for all wrongs that
arise therefrom. See for example
S
v Van Der Mescht
1962 (1) SA 521
(A)
and
S v Bernardus
1965 (3) SA 287
(A). The translation is my own.
[27]
R v Wallendorf & others
1920 AD 383.
[28]
At 394.
[29]
S v Van Der Mescht
1962 (1) SA 521
(A).
[30]
At 534H.
[31]
S v Bernardus
1965 (3) SA 287
(A) at 298A-299H and 300H.
[32]
S v Dougherty
2003 (4) SA 229 (W).
[33]
Paras 35-37. This judgment was referred to with
approval in this court in
S v Mkhize
(16/2013)
[2014] ZASCA 52
(14 April 2014).
[34]
See
S v Dougherty
(supra) para 35 and J C De Wet and H L Swanepoel
Strafreg
4 ed (1985) at 137.
[35]
S v P
1972 (3)
SA 412
(A).
[36]
S v Du Preez
1972 (4) SA 584
(A).
[37]
S v P
at 416 et
seq;
S v Du Preez
at
588H.
[38]
R v Kruse
1946
AD 524
at 533.
[39]
R v Heyne
(supra) at 622G.
[40]
R v Davies
1928
AD 165
at 170;
R y Myers
1948
(1) SA 375
(A) at 382-4 and
Gollach &
Gomperts (1967) (Pty) Ltd & others v Universal Mills &
Produce Co (Pty) Ltd
1978 (1) SA 914
(A) at 926E. Reference to
Gollach &
Gomperts v Universal Mills
has been
more recently made with approval in this court in
Rowe
v Rowe
[1997] ZASCA 54
;
1997 (4) SA 160
(SCA) at 166B.
[41]
Ex parte Lebowa Development Corporation Ltd
1989 (3) SA 71
(T).
[42]
At 828B-C.
[43]
At 175G-H.
[44]
In
White
at
177E.
S v Bell
1963 (2) SA 335
(N).
[45]
At 337B.
[46]
See
R v Hyams
1927 AD 35.
[47]
S v Campbell
1991 (1) SACR 503
(Nm).
[48]
R v Dyonta & another
1935
AD 52.
[49]
At 54.
[50]
Ibid.
[51]
R v Makokosa & another
1927 TPD 107
.
[52]
R v Kantor
1969
(1) SA 457
(RAD).
[53]
At 460B-D.
[54]
R v Davies & another
1956 (3) SA 52
(A).
[55]
At 128B.
[56]
At 64A-B.