About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2010
>>
[2010] ZASCA 80
|
|
Nzimande v S (600/09) [2010] ZASCA 80; 2010 (2) SACR 517 (SCA) (28 May 2010)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
judgment
Case
No:
600/09
Oscar
nzimande
Appellant
and
the
state
Respondent
Neutral
cita
tion:
Nzimande
v The State
(600/09)
[2010] ZASCA 80
(28 May 2010)
Coram:
MPATI
P,
ponnan
JA and
GRIESEL AJA
Heard:
17
May 2010
Delivered:
28
May 2010
Summary:
Appeal by the State in terms of s
310
of the
Criminal Procedure Act 51 of 1977
against the appellant’s
a
cquittal on 197 counts of fraud –
Whether the magistrate’s finding
that misrepresentations made by the appellant to the Legal Aid Board
were not made intentionally
but rather negligently was a finding of
fact or of law – Whether as a result of this the State had a
right to appeal in
terms of the above section.
____________________________________________________
______________
ORDER
____________________________________________________________________
On
appeal from:
North Gauteng High Court
(Pretoria) (R D Claassen and Prinsloo JJ, sitting as court of
appeal):
1. The
appeal
is upheld.
2. The
order of the high court is set aside and replaced with the following:
‘The
appeal is struck off the roll.’
____________________________________________________________________
JUDGMENT
____________________________________________________________________
Griesel
AJA (MPATI P and Ponnan ja
concurring):
Th
e
appellant was charged in the regional court for Northern Transvaal,
Pretoria with 197 counts of fraud. He was acquitted on all
of the
charges. The State, contending that the acquittal
of the appellant was based
on a question of law, accordingly requested the magistrate, in terms
of s 310(1) of the Criminal
Procedure Act 51 of 1977 (‘the
Act’), ‘to state a case for the consideration of the
[high court] having jurisdiction,
setting forth the question of law
and his decision thereon and, if evidence has been heard, his
findings of fact, in so far as
they are material to the question of
law’. The State thereupon lodged an appeal against the
acquittals in terms of s 310(2)
of the Act. The high court
upheld the appeal, set aside the acquittals in respect of some of
the charges and substituted in its
stead convictions on those
charges.
1
It thereupon remitted the matter to the trial court for the
imposition of sentence. With leave granted by the high court, the
appellant now appeals to this court against that order.
The
appellant, a qualified attorney practising
in Pinetown, KwaZulu-Natal, received and accepted instructions from
the Legal Aid Board
(‘the LAB’) to appear on behalf of
accused persons in a large number of criminal cases. The charges
against the appellant
arose from claims submitted by him to the LAB
in respect of professional services rendered by his firm in those
cases. The charges
fall into seven separate categories, of which
only three are relevant to this appeal. These were formulated as
follows in the
charge sheet:
Category
AA
– submitting claims for attending
court for a specific period of time where the objective facts
indicate that the appellant
or relevant member of his firm could not
have appeared on the exact times and for the exact duration as
indicated on his claims;
Category
CC – submitting claims for court attendances by him or the
relevant member of his firm in which the days on the claims
do not
concur with the actual court appearances; and
Category
EE – submitting claims where the charge sheets clearly show
that the appellant or the relevant members of his firm
were either
absent or that no legal representative was present on the specific
days.
The
evidence
in the trial court was largely
common cause and uncontested. The appellant readily conceded that
certain irregularities had been
committed with regard to the claims
submitted to the LAB and that misrepresentations had been made in
the process. His defence
was that such misrepresentations had not
occurred intentionally; in other words, he claimed to have lacked
the requisite intention
to defraud. The evidence revealed that the
management and administration of the appellant’s practice
was severely
deficient. The thrust of the appellant’s defence
was that to the extent that he may have made representations to the
LAB
he had done so negligently rather than intentionally.
The
magistrate evaluated the evidence as well as the applicable case law
and concluded as follows:
‘
There
were various irregularities. The accused did not apply proper
bookkeeping practices, that is clear from the evidence before
me. It
is clear that wrong dates were given or were attached in certain
claims. That is clear. It is clear that the accused had
no control,
proper control over his practice and that is for the Law Society to
deal with. But whether he had the intention to
defraud I am unable to
say. All that I can say is that there was gross negligence and the
accused is acquitted on all counts.’
The judgment of the high court
In
the high court, the parties were
agreed
– and the court also found – that the case as stated by
the magistrate in response to the request by the State
was defective
and did not comply with the requirements of the Act.
2
The high court decided, nevertheless, to deal with the matter on the
basis of the question as formulated by the State, namely
whether the
facts found proved by the magistrate constituted gross negligence
only, or whether they justified a finding of
dolus
in the form of, at least,
dolus
eventualis
.
3
(The question whether or not the high court was justified in dealing
with the matter on this basis is not an issue that we need
to
consider in this instance.)
In
the
high court counsel for the respondent
(the present appellant), in resisting the State’s appeal,
argued that, inasmuch
as all the facts were common cause, the
magistrate had to determine, by way of inference from the facts,
whether those facts constituted the
relevant offence. Counsel accordingly submitted that this entailed a
factual
finding.
The high court made short shrift of this argument:
‘
This
argument simply cannot stand. It is
only logical that any
inference to be drawn (from common-cause facts) is a matter of
legal
reasoning
to determine whether such
facts constitute (
in casu
)
an offence. Surely that can only be done by considering the
legal
requirements of the offence. In the
result therefore this issue can only be a
legal
question
.’
4
Counsel
for the appellant further submitted that
before the question of law could become pertinent, a finding first
had to be made as
to the appellant’s state of mind, ie whether
he had no honest belief in the estimations. In this regard, the high
court
held as follows:
‘
The
answer to this is quite simple. It is common cause that the
guidelines of the Legal Aid Board (LAB) do not provide for estimates.
It requires exact times of court attendances, at least within 15
minutes. Most of [the appellant’s] “estimates”
for
attending to simple postponements were between one to two or more
hours. There is no way in the world that an
estimate
can ever be said to be an exact time.
[Counsel for the appellant] urged upon the Court that the State did
not prove that his estimates
were false, in fact they could have been
correct. That is not the question. The respondent knew that the LAB
requires exact times.
(His knowledge of the LAB’s rules is
common cause.) Therefore it is only logical that, if he gives an
estimate, he knows
that it is not accurate, therefore to my mind he
knowingly
makes
a false representation. Therefore the question of the State not
having proved his state of mind is without merit. The respondent
himself gave the answer to that.’
5
The
court point
ed out that most of the
evidence led by the State was not contested. The real dispute, it
held, ‘centred not so much on
the respondent’s acts and
deeds as such, but on his
mental state
,
ie whether
dolus
in
any of its forms was present and proved’.
6
In that regard, the court reasoned as follows:
‘
The
final question to be answered is the legal question as to whether the
common-cause facts actually constitute the crime of fraud,
whether by
dolus directus
or
dolus eventualis.
The
magistrate found as a fact that [appellant] was
grossly
negligent.
In light of my views set out
above regarding the nature of [appellant’s] estimates, there is
no way that it can be said that
[appellant] did not
know
that his representations as to time
were inaccurate. Simply as a lawyer he must know that
estimates
and
exact
times
are not the same. I have no doubt
that, on the facts as found by the magistrate, [appellant] not only
knew that the estimates were
not correct (ie false), and that the LAB
required exact times, but he wilfully persisted in his operations. To
my mind his operation
constituted wilful deceit by him. The
magistrate actually found that he was “almost 100% sure that
[appellant] was using
the system to his advantage”. (I think
one should read “abusing”.) This clearly illustrates the
point. One cannot
put it more simply or elegantly than that.’
7
Based
on this reasoning, the high court concluded ‘. . . that,
as a matter of law, the magistrate should
have found [appellant]
guilty on all those charges where he estimated his times for
attending to cases on behalf of the LAB’.
8
Question of law
or fact
?
On
appeal to this court, counsel for the appellant assailed the
reasoning of the high court, submitting that the appeal
,
being an appeal on a question of fact, should not have been
entertained by it. For the reasons that follow, I agree with that
submission.
I
n
S v Petro Louise Enterprises (Pty) Ltd
and others
9
(a case referred to in the judgment of the high court, but in a
different context)
10
it was argued by counsel for the State that the question whether a
given inference was the only reasonable inference to be drawn
from
certain facts, was a question of law – essentially the same
argument that was addressed to the high court in this
instance. The
State’s argument was rejected by the court (per Botha J, Van
Dyk AJ concurring) in the following passage:
‘I
am unable to accept counsel’s widely-based and generalised
proposition that in all cases the question whether a particular
inference is the only reasonable possible inference to be drawn from
a given set of facts is a question of law. To accede to the
proposition in such general terms would, I consider, open the door to
the possibility of large numbers of appeals being brought
under sec.
104 of [the
Magistrates’ Courts] Act 32 of 1944
, contrary to
the limited scope of that section which I conceive the Legislature
contemplated. One example of those possibilities
that were canvassed
during the argument will suffice. Suppose that an accused is charged
with an offence of which a specific intent
is an element, e.g.
assault with the intent to do grievous bodily harm. On the evidence,
the magistrate finds that such intent
is not the only reasonable
inference to be drawn from the facts, and consequently he convicts
the accused of common assault. I
cannot for one moment imagine that
the Attorney-General will have a right of appeal upon the footing
that an intent to do grievous
bodily harm was the only reasonable
inference to be drawn from the facts.’
11
In
Magmoed v Janse van Rensburg &
others
12
Corbett CJ (writing for a unanimous
court) quoted the above passage from
Petro
Louise Enterprises
and expressed his
‘full and respectful agreement’ with the analysis.
13
In the course of his judgment, the learned Chief Justice also said
the following:
‘
[I]n
my opinion, a question of law is not raised by asking whether the
evidence establishes one or more of the factual ingredients
of a
particular crime, where there is no doubt or dispute as to what those
ingredients are.’
14
And
further:
‘
[T]he
fact that in a particular case the prosecution relies upon inference
to prove the agreement to accomplish a common aim does
not make the
question as to whether the prosecution succeeded in establishing this
inference beyond a reasonable doubt one of law.
As was often pointed
out in the field of income tax appeals on a question of law, facts
may be classified as primary, ie those
facts which are directly
established by the evidence, and secondary, ie those facts which are
established by way of inference from
the primary facts . . . . I have
no doubt that an inference drawn from proven facts that the accused
had by agreement formed a
common purpose which embraced, say, the
possibility of an unlawful killing is an inference of fact, and not
one of law. It is a
secondary fact.
It
is seldom in a case of murder that there is direct evidence of the
perpetrator’s actual state of mind. Consequently, whether
the
unlawful killing was accompanied by
dolus
in one of its forms on his part is
normally a matter of inference from the primary facts. Clearly this
is an inference of fact and
any question as to whether the trial
Court correctly decided this issue is a question of fact.
I can see no difference between this and the issue, also to be
determined by inference, as to whether a number of accused formed
a
common purpose which embraced both an unlawful killing and
dolus
in one of its forms. It is true that
the legal consequences of a common purpose may be said to fall within
the sphere of a rule
of law, but in a case such as this the rule
itself and its scope are not in issue. What is in issue is the
factual foundation for
the application of the rule. That is a
question of fact.’
15
(My
emphasis.)
The
principles so lucidly
articulated in
Petro
Louise Enterprises
and in
Magmoed
have subsequently received the express
imprimatur of the Constitutional Court in
S
v Basson
16
and are dispositive of the present appeal. The question for
decision in the present case was whether, on the facts found
proven,
the State had established that the appellant had made the
misrepresentations with the necessary intention (
dolus
);
in other words, to use the terminology of Corbett CJ in
Magmoed
,
the question was whether the evidence established one of the
‘ingredients’ of fraud where there was no dispute as
to
what those ingredients were. This required an inference to be drawn
from the primary facts already found. Based on the passages
quoted
above, it is clear that the inference so drawn is a secondary fact;
it is
not
a
question of law. Thus, the true complaint of the State was not that
the magistrate had committed any error of law, but that
he had drawn
an incorrect inference from the facts. Judging from the evidence as
well as the judgment of the high court, this
complaint may well be
valid – an issue on which we do not have to make a finding.
Suffice it to say that such error (if
it was one) was one of fact,
which did not confer upon the State the right to appeal against the
acquittal of the appellant.
17
It follows that the high court had no jurisdiction to entertain
the appeal, which fell to be struck off the roll.
Order
In
the result, I make the following order:
1. The
appeal is upheld.
2. The
order of the high court is set aside and replaced with the following:
‘The
appeal is struck off the roll.’
B
M Griesel
Acting
Judge of Appeal
APPEARANCES:
FOR
APPELLANT: M R Hellens SC
Instructed
by:
Johan
van Zyl Attorneys, Pretoria
Symington & De Kok, Bloemfontein
FOR
RESPONDENT:
J
M Ferreira
L S Mabitle
Instructed
by:
The
Director of Public Prosecutions, Pretoria and Bloemfontein
1
The judgment of the high court has been reported:
S v Nzimande
2007 (2) SACR 391
(T).
2
Judgment paras 8–12.
3
Para 13.2.
4
Para 15.
5
Para 16.
6
Para 12.
7
Para 17.
8
Para 18.
9
1978 (1) SA 271
(T).
10
In para 10 of the judgment.
11
At 280B–E.
12
[1992] ZASCA 208
;
1993 (1) SA 777
(A);
1993 (1) SACR 67
(A) – the infamous
Trojan horse
case.
13
At 809A (SA); 95
a
(SACR).
14
At 808A–B (SA); 94
c
–
d
(SACR).
15
At 810H–811D (SA); 96
f–i
(SACR) (other case
references omitted).
16
[2004] ZACC 13
;
2005 (1) SA 171
(CC) paras 46–49
.
17
Cf
S v Coetzee
1977 (4) SA 539
(A) at 544H–545A.