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[2010] ZAGPPHC 308
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Director of Public Prosecutions v Schreiber (A169/2008) [2010] ZAGPPHC 308 (1 April 2010)
Case
no.
A169/08
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG
HIGH, PRETORIA)
In the matter
between:
THE DIRECTOR OF
PUBLIC
PROSECUTIONS
..............................................................................
Applicant
and
WILLIAM
SCHREIBER
...................................................................................................................
Respondent
JUDGMENT
LEGODI J
This
is an application for leave to appeal against the decision of this
court, in terms of which the convictions and sentences 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.
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:
“
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 of several corporate bodies that committed different offences
at different times? (See section 156 of Act 51 of 1977
and
S
v Van Wvk en Andere
1994(1)
SACR 183 (NC)
2.5
2.5.1
Does a court of appeal have inherent powers of review to rule on the
validity of a charge sheet? (See
Hira
and Another v Boovsen
and
Another
1992 (4)
SA 86
(A) at 94A to 94A)
2.5.2
May an appellant during the course of argument raise a new ground of
appeal not covered in his notice of appeal or in his
heads of
argument? (See Magistrate Court Rule 67(1) and
S
V
Maritz
1994(1) SACR 456 (T) at 458G).
2.5.3
May a court of appeal deal with a new ground of appeal, if the
magistrate
was
not afforded an
opportunity to furnish additional reasons as prescribed by the
Magistrates’ Courts rule 67(7), and where the
State
was
not afforded the
opportunity to raise an objection thereto? (See
S
v Zulu
2003(2)
SACR 22 (SCA) at 25E and
S
v Nel
1987(4) SA
276(0) 279F-I).
2.6
May a court of appeal order a retrial where all the parties do not
agree thereto? (See
S
v Balatseng
2005
(2) SACR 28
(BD) at 22).
The first ground of
appeal set out in “2.1” above, raises the issue whether
this is a factual or legal ground of appeal.
If a factual ground of
appeal, the state would not be entitled to invoke the provisions of
section 311.
I do not think that
another court might find differently from the finding by this court,
that the respondent was charged in his
representative capacity
particularly having regard to the preamble in the charge sheet as
quoted in the main judgment. This was
a factual finding
The state should
therefore be found not entitled to appeal based on the ground raised
in paragraph 2.1 quoted earlier in this judgment.
The fact that a
factual conclusion results in rendering the plea of guilty invalid in
terms of section 332(2)(a), does not justify
appeal on a question of
law.
It is not contended
that charging a person in a representative capacity, requires a plea
of guilty to be accompanied by an authorisation
and that without an
authorisation from a corporate body concerned, the plea becomes
invalid.
It does not matter
whether the parties during trial raised the issue or not. If on
record, particularly if the charge sheet is clear
in respect of the
representative capacity under which the respondent was charged, the
intention of the parties or their understanding
during trial becomes
immaterial.
The other grounds of
appeal raised are in my view without merit. Put it this way, the
state in the court a quo had to prove beyond
reasonable doubt that
the appellant had been charged in his personal capacity and that
therefore the provisions of section 332(2)(a)
were not applicable to
the respondent. The charge sheet is the starting point, secondly, the
admissions in terms of section 112
plea.
Now, during the
discussions in this application for leave to appeal, counsel for the
state conceded that the charge sheet as drafted
with its preamble is
cumbersome and confusing. The slightest doubt of certainty whether
the respondent was charged in his representative
capacity or not,
should be sufficient to justify the setting aside of the guilty
finding.
Attempts to want to
rely on the plea of guilty which is couched in the first person,
would not in itself remove the doubt and I
do not think that another
court might find differently in this regard.
Ground 2.2 is
attributed to what was stated in paragraph 6 of the main judgment.
The suggestion was that the effect of what is stated
in paragraph 6
is that the state would be prohibited from charging a director,
member or a servant of a corporate body in his or
her personal
capacity for crimes that he committed.
Subsections 4 and 5
had nothing to do with the question as posed in paragraph 2.2 of the
grounds of appeal. What the court meant
in paragraph 6 of its main
judgment is that the state cannot invoke the presumption as it was
intended in subsections 4 and 5.
Clearly, this has nothing to do with
whether the state can charge an employee or director of a corporate
body in his or her personal
capacity. However, if one does so, it has
to be clear from the charge sheet that it is the individual that is
being charged in
his or her personal capacity and not as it was in
the instant case.
Grounds 2.3 and
2.5.1 have the same effect. Again, the state seems to have missed the
point. The decision taken by this court on
appeal did not amount to
review on the validity of the charge sheet or quashing thereof. It is
the convictions and sentences imposed
that had been set aside.
It is the validity
of the plea and the verdict thereof that had been quashed and not the
charge sheet itself. I therefore do not
think that another court
might find substance in grounds 2.3 and 2.5.1
Ground 2.4 is
apparently with reference to section 156 of the Criminal Procedure
Act. The section provides that any number of persons
charged in
respect of separate offences committed at the same place, and at the
same time or at about the same time, may be charged
and tried
together in respect of such offences if the prosecutor informs the
court that such evidence admissible at the trial of
one of such
persons, will in his opinion also be admissible as evidence at the
trial of any other such person or such persons.
I am unable to
understand what relevance the provisions of section 156 have to the
present appeal. Section 156 is aimed at avoiding
multiplicity of
trials based on more or less the same set of facts or evidence.
This
court remitted the matter to start afresh in the court aquo. How the
state decides to charge the respondent if it so proceeds
with the
trial was not of concern to this court on appeal. Whether it charges
the respondent in his personal capacity or representative
capacity or
both, is for the state to decide as
dominis
litis.
The question raised
in paragraph 2.4 was therefore of no relevance during the appeal,
neither it is now and I do not think that
another court might find
differently.
Grounds 2.5.2 and
2.5.3 are somewhat related. They all relate to the necessity to
afford a court against whose decision is challenged,
the opportunity
to make comments. The court of appeal has inherent powers of review,
where is it found that proceedings in the
lower courts did not accord
with justice. Whilst it is a good practice to require comments before
a decision of a lower court is
upset, where it is clear on record
that the proceedings were not in accordance with the law or reference
to the magistrate would
serve no purpose, there is nothing wrong in
dealing with the matter there and then.
The trial court in
my view, could not add anything to the Preamble. His understanding or
that of the defence and the state would
have been immaterial,
especially having regard to the finding by this court that by virtue
of the preamble the respondent was charged
in his representative
capacity which finding invoked the provisions of section 332(2)(a). I
therefore do not think that another
court may find anything wrong in
this court’s exercise of inherent powers in terms of section
304.
Regarding
ground 2.6, I can only say that a court does not have to be dictated
by the wishes of the parties or disagreement between
the parties.
There could not have been any other appropriate order than to remit
the matter to start
de
novo.
For
example, this is fortified by the fact that, during the discussion in
this application, counsel for the state indicated that
the state is
still in a position to proceed with the matter afresh if it so
wishes.
In conclusion, I
would therefore dismiss the application for leave to appeal.
M.F. LEGODI
JUDGE OF THE HIGH
COURT
I, agree, IT IS SO
ORDERED
C P RABIE
JUDGE OF THE HIGH
COURT
Heard on: Monday 08
March 2010
Date of judgment: