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[2022] ZAKZPHC 40
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Lotz v S (AR119/P) [2022] ZAKZPHC 40; 2023 (1) SACR 88 (KZP) (26 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR119/P
In
the matter between:
JAN
HENDRIK
LOTZ
APPELLANT
and
THE
STATE
DEFENDANT
ORDER
On
appeal from:
Newcastle
District Court (sitting as court of first instance):
1.
The appeal is upheld.
2.
The appellant’s conviction and sentence are set aside.
JUDGMENT
MOSSOP
J:
[1]
The appellant
is an employee of Alrette Rentals CC, which trades as Avo Car Rentals
(Avo). It has its place of business in Boksburg,
Gauteng, where the
appellant is employed as a manager. As its trading name suggests, Avo
is in the business of renting out motor
vehicles. On 1 July 2019, the
appellant was convicted in the Newcastle district court of
contravening section 50(1) of the National
Land Transport Act 5 of
2009 (the Act). The State alleged that the appellant personally
operated a public transport service vehicle
upon a public road
without holding the necessary permit or operating licence or, in the
case of a special vehicle, a temporary
permit issued in terms of
section 20 of the Road Traffic Act 74 of 1977. The appellant was
sentenced to a fine of R15 000 or, in
default of payment, to undergo
ten months’ imprisonment.
[2]
The appellant
sought leave to appeal from the court that convicted and sentenced
him, but such leave was refused. He was, however,
granted leave to
appeal against his conviction and sentence after petitioning the
Judge President of this Division. On appeal,
the appellant was
represented by Mr Osborne and the State by Mr Sindane. Both are
thanked for their helpful submissions.
[3]
Most
of the facts of this matter are not seriously in dispute. While Avo
rents out motor vehicles, it also from time to time provides
a
passenger service to clients. In this instance, Avo agreed to
transport four British hunters from O. R. Tambo International Airport
to a hunting lodge near Dundee, KwaZulu-Natal. The vehicle that was
used for this purpose was a Toyota Quantum motor vehicle (the
motor
vehicle) that is registered in the name of Avo. On 16 March 2019 on
the N11, a public road within the province of KwaZulu-Natal,
a road
traffic official, Mr Clinton Clayton (Mr Clayton), pulled the motor
vehicle over. The driver of the motor vehicle was a
Mr Zamabuthle
Dladla (Mr Dladla), an employee of Avo. Mr Clayton called for Mr
Dladla to exhibit to him the necessary permits.
While Mr Dladla had
an operator’s permit and a public driving permit, he was not in
possession of a document referred to
as a ‘charter permit’.
[1]
Mr Dladla was, as a consequence, directed by Mr Clayton to take the
hunters to the hunting lodge and then to deliver the motor
vehicle to
the Newcastle pound.
[4]
All of that is
common cause. Where the versions diverge is what happened next. The
State alleges that after the motor vehicle was
delivered to the
pound, the next day Mr Dladla and the appellant were present at the
Ingogo Police Station. The appellant on the
other hand, states that
Mr Dladla returned to Johannesburg and reported the matter to him.
After communicating with a Mr Ngema,
described as being Mr Clayton’s
superior, the appellant and Mr Dladla travelled down to the Ingogo
Police station on a mutually
convenient date. Nothing, however, turns
on this difference.
[5]
The starting
point of this appeal must be the charge sheet. It records that the
accused is Jan Hendrik Lotz, the appellant, a South
African citizen,
aged 40, who was on bail and was arrested on 10 April 2019. That date
would tend to establish that the appellant’s
version of when he
went to the Ingogo Police Station must be correct, given that the
offence was allegedly committed on 16 March
2019. There is no
suggestion in the charge sheet that the appellant is charged in a
representative capacity on behalf of Avo. Indeed,
there is no mention
of Avo at all in the charge sheet. He was thus charged in his
personal capacity.
[6]
The charge
sheet further goes on to describe the main count, being the count
upon which the appellant was found guilty, as follows:
‘
The
Accused is guilty of the offence of contravening Section 50(1) read
with sections 1, 124, 126 and 127 of act 05/2009.
In
That [sic] upon or about 16 day of March 2019 the said accused did
unlawfully operate a road public transport service vehicle
to wit to
FG76MHGP Quantum upon a public road to wit N11 Ingogo Road in the
District of Newcastle without holding the necessary
permit of [sic]
operating licence or in the case of a special combi a temporary
permit issued in terms of section 20 of R. T. A.
Act 74/1977.
Not
having one/or not necessary one to operate in the area where caught.’
[7]
Section 50(1)
of the Act reads as follows:
‘
No
person may operate a road-based public transport service, unless he
or she is the holder of an operating licence or a permit,
subject to
sections 47,48 and 49, issued for the vehicle concerned in terms of
this Act.’
Sections
47, 48 and 49 referred to in section 50 relate to transitional
provisions dealing with the rationalisation of certain types
of
transport services. They appear to have no relevance to the charge
that the appellant faced.
[8]
The
prosecution of the appellant, as Mr Osborne pointed out in his heads
of argument, appears to have been conducted without any
reference to
the provisions of section 332 of the Criminal Procedure Act 51 of
1977 (the CPA). The significance of section 332
is that it permits
liability to be visited upon a corporate body for criminal conduct,
despite its physical inability to think
and act.
To effect such a
prosecution, section 332(2) reads, in part, as follows:
‘
In
any prosecution against a corporate body, a director or servant of
that corporate body shall be cited, as representative of that
corporate body, as the offender, and thereupon the person so cited
may, as such representative, be dealt with as if he were the
person
accused of having committed the offence in question:’
[9]
The section
contemplates that both the corporate body and the employee may be
charged. Section 332(2)
(d)
of the CPA provides as follows:
‘
the
citation of a director or servant of a corporate body as aforesaid,
to represent that corporate body in any prosecution instituted
against it, shall not exempt that director or servant
from
prosecution for that offence in terms of subsection (5).’
[2]
[10]
The
qualification that the person must be cited in the charge sheet as a
representative of the corporate body is of singular significance.
While the warm bodied accused is dealt with as if he had personally
committed the offence committed by the corporate body, any
conviction
that follows is the conviction of the corporate body and not the warm
bodied accused, unless he is also charged and
convicted in his
personal capacity.
[11]
It
is trite law that the burden in any prosecution is on the State to
prove the guilt of the accused beyond reasonable doubt. If
the
accused’s version is reasonably possibly true in substance the
court must decide the matter on the acceptance of that
version and
acquit the accused.
[3]
[12]
From the facts
that are common cause, certain difficulties for the State immediately
become apparent:
(a)
firstly,
the appellant at no stage personally operated a vehicle in breach of
the Act. He was not the owner of the business, nor
was he the owner
of the motor vehicle nor was he the driver thereof. He was not even
in the province of KwaZulu-Natal when the
offence was allegedly
committed. There was thus no evidence to demonstrate that the
appellant personally conducted the service
that the State finds
offensive and contrary to the law. He was consequently not required
to possess a charter permit and he could
not be convicted of not
having one. While it is so that in evidence the appellant appears to
have admitted that Avo did not comply
with the prescripts of the law
concerning charter services, that admission was of no significance in
the prosecution of the appellant;
(b)
secondly,
the appellant was never charged in his capacity as a representative
of Avo. He ought to have been cited in his name as
a representative
of Avo but was not. The failure to include those words meant that he
was cited in his personal capacity. The consequence
of that,
ultimately, was that he personally acquired a criminal conviction. As
Mr Cornelius du Plessis (Mr du Plessis), the true
proxy of Avo, who
testified for the appellant at his trial explained, what had happened
had come
‘
.
. . as a big shock and I felt sick to this day when I heard that it
might be a criminal that the person will get a criminal record.
It is
still a shock to me …’; and
(c)
thirdly,
while this may not have immediately been obvious, there are no
sections 124, 126 and 127 to the Act, all of which were
apparently
relied upon by the State in the prosecution of the appellant, and
which were therefore mentioned in the charge sheet.
The last section
in the Act is section 96. What sections the State relied upon are
therefore not known.
[4]
[13]
Given these
difficulties, the guilt of the appellant was not established by the
State, and he should not have been convicted in
his personal
capacity. The question of whether the appellant was authorised to
appear on behalf of Avo at the trial, which enjoyed
some attention at
the trial, ultimately is of no significance since Avo was never
charged. Even if Avo had itself been prosecuted,
which it was not,
the appellant was not the proxy of that corporate body. Mr du Plessis
unequivocally stated, regarding a document
that authorised the
appellant to ‘handle all the issues related the vehicles [sic]
in the company name’, that
‘
I
am the proxy of the company and the vehicle.’
[14]
While
it is possible that Avo may have been guilty of operating without a
charter permit, although I prefer to express no definite
view on the
matter, it is not possible to substitute Avo for the appellant on
appeal.
[5]
[15]
In its heads of argument, which were
delivered out of time, the State, correctly in my view, took the view
that the conviction of
the appellant could not be defended and
conceded the appeal.
[16]
Accordingly,
the appeal must succeed. I would accordingly propose the following
order:
1.
The appeal is
upheld.
2.
The
appellant’s conviction and sentence are set aside.
MOSSOP
J
I
agree and it is so ordered
KOEN
J
APPEARANCES
Counsel
for the plaintiffs : Mr
B. S. Osborne
Instructed
by: :
Riaan Louw Attorneys
3
Noordrandweg
Kempton
Park
Counsel
for the defendant
: Mr. E.
X. Sindane
Instructed
by
: Director
of Public Prosecutions
Pietermaritzburg
Date
of Hearing : 26 August 2022
Date
of Judgment : 26 August 2022
[1]
The
concept of charter services is dealt with in section 67 of the Act.
There is no reference to this section in the charge sheet.
[2]
Section
332(5) has, however, been found by the Constitutional Court
to
be
inconsistent
with the Constitution of the Republic of South Africa Act 200 of
1993 and consequently invalid and of no force or effect:
S
v Coetzee
1997
(3) SACR 379 (CC).
[3]
S
v Jackson
1998
(1) SACR 470
(SCA)
at 476;
Shackell
v S
2001
(4) All SA 279
(SCA).
[4]
As
Mr Osborne further pointed out, the charge sheet also did not
mention a penalty provision that was relied upon. However, see
in
this regard
S
v Seleke
1976 (1) SA 675 (TPD).
[5]
S
v Erasmus
1970
(4) SA 378
(RA);
R
v Reyrink
1947 (4) SA 312
(C).