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[2022] ZAECMKHC 90
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African Paper Products (Pty) Ltd and Another v Director of Public Prosecutions: Eastern Cape and Another (250/2020) [2022] ZAECMKHC 90 (31 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 250/2020
In
the matter between:
AFRICAN
PAPER PRODUCTS (PTY)
LTD
First Applicant
(REGISTRATION
NUMBER: 2003/005955/07)
VISHAL
DEVRAJ
SEEBRAN
Second Applicant
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS:
First Respondent
EASTERN
CAPE
THE
REGIONAL MAGISTRATE COMMERCIAL
Second Respondent
CRIMES
COURT, PORT ELIZABETH
MR
CLAASEN
Coram:
Lowe J
et
Bands AJ
Date
heard:
21 July 2022
Delivered:
31 October 2022
JUDGMENT
BANDS
AJ:
[1]
Fundamental
to our criminal justice system and at the heart of the rule of law,
is an accused’s right to a fair trial.
In the words of the Constitutional Court in
S
v Jaipal
:
[1]
“
The
basic requirement that a trial must be fair is central to any
civilised criminal justice system. It is essential in a society
which
recognises the rights to human dignity and to the freedom and
security of the person and is based on values such as the advancement
of human rights and freedoms, the rule of law, democracy and
openness”.
[2]
This application concerns unterminated proceedings emanating from the
Regional Court of the Eastern Cape in the Specialised Commercial
Crimes Court, Port Elizabeth (as it then was), under case number
CCC1/47/14 (“
the Commercial Crimes Court
”), in
which the first and second applicants stand accused of various
offences. The applicants seek relief in the alternative,
both of
which pertain to a ruling made by the second respondent on 6 November
2019, during the course of the said proceedings.
In the first
instance, the applicants seek a review
in medias res
of the
said ruling, and in the alternative, seek a
mandamus
against
the second respondent directing him to order that particulars to the
charge sheet be furnished.
[3]
By virtue
of the High Court’s inherent power to restrain illegalities in
inferior courts, this court may, in a proper case,
by way of review,
interdict or
mandamus
,
grant relief against the decision of a magistrates’ court given
prior to conviction.
[2]
[4]
The first respondent opposes the relief sought.
Relevant
factors leading to the present application
[5]
The first
and second applicants were arraigned before the Commercial Crimes
Court on a charge of fraud. In addition, the second
applicant faces
two further charges of fraud and two charges of forgery. Central to
the charges is a contract awarded to the first
applicant by the
Department of Education, Eastern Cape (“
the
Department
”),
[3]
for the provision of Learning and Teaching Support Materials,
inclusive of textbooks, and scholastic stationary before the
commencement
of each year.
[6]
On a reading of the charge sheet, together with its preamble, and
simplistically
put, the State contends that the Department, as part
of the bidding process, required bidders to furnish certain
supporting documentation
as proof of experience (and success) in
similar previous projects, such as letters of recommendation by
contactable references.
In addition, valid Tax Clearance Certificates
were required in respect of each bidder. On 19 October 2009, the
second applicant,
in his capacity as a director of the first
applicant, as well as in his capacity as a director of two further
corporate entities,
Mega Papers (Pty) Ltd (“
Mega Papers
”)
and Paper Active (Pty) Ltd (“
Paper Active
”), which
have since been deregistered, signed tender documentation on behalf
of the first applicant and the two corporate
entities respectively,
and submitted same to the Department.
[7]
In respect of the 2 charges of forgery against the second applicant,
the
charge sheet reads as follows:
“
In that upon or
about 19 October 2009 and at or near the Department of Education,
Eastern Cape
in the Regional Division of
the Eastern Cape the Accused did unlawfully, falsely and with the
intent to defraud and to the prejudice
or potential prejudice of the
Department of Education and/ or SARS forged an (sic) instruments in
writing to wit: a tax clearance
certificate relating to…
”
“
Mega
Papers
”, in respect of count 3;
and relating to “
Paper Active
”,
in respect of count 5.
[8]
Subject to what I set out below, the respective charges of fraud are
formulated
in materially the same terms as against the first and
second applicants; alternatively, the second applicant only, where
applicable.
Accordingly, and for illustrative purposes, the content
of count 1, which pertains to both the first and second applicant,
reads
as follows:
“
In
that during the period from 19 October 2009 to 21 December 2009 and
at or near the Department of Education, Eastern Cape in the
Regional
Division of the Eastern Cape the Accused did unlawfully, falsely and
with the intent to defraud, gave out and pretended,
expressly or
impliedly, to the Department of Education that:
·
documents in the name of Tevo, Office Elements,
Mtuba Book Sellers and Stationers and G&T Office Supplies were
true and authentic
and issued by the said businesses in the normal
course of business,
And the Accused did,
by means of the said false pretences induced the said Department of
Education to its loss and prejudice, actual
or potential, or the loss
and prejudice, actual or potential, of the unsuccessful bidders, to
accept the misrepresentations as
true and correct and to award a
tender in the amount of R13,585,917 to Accused 1,
Whereas
in truth and fact, the Accused, when they gave out (sic) pretended as
aforementioned well knew that the said documents were
not true and
authentic.
”
[9]
The remaining 2 charges of fraud, being counts 2 and 4, relate to the
second applicant only. Such counts pertain to the actions of the
second applicant, acting in his capacity as a director on behalf
of
Mega Papers and Paper Active respectively; and relate not only to the
supporting documentation, but also to Tax Clearance Certificates
pertaining to Mega Papers and Paper Active as detailed in the
respective charges, where relevant, all of which documentation the
State contends not to be true and authentic, such fact being within
the knowledge of the second applicant.
[10]
The first and second applicants, being dissatisfied with the
formulation of the charge
sheet, requested further particulars from
the state, to which a response was received. The applicants
thereafter delivered a notice
of objection to the charges in terms of
section 85(1) of the
Criminal
Procedure Act, 51 of 1977 (“
the
CPA
”)
,
in which they sought the quashing of the charges; alternatively, an
order directing the State to deliver better particulars to
the
applicants’ request for particulars.
[11]
The applicants’ grounds of objection were formulated as
follows:
“
1.
That the averments contained in the aforesaid charges as amended...
are vague and embarrassing and infringes
the accused’s
constitutional right to be informed of the exact nature of the
charges against them;
2.
That the averments in the charges lack particularity pertaining to
the actus reus in respect
of each count as allegedly committed by
each of the accused and in particular by accused number 2 in a
personal capacity;
3.
That the averments and the charges therefore do not disclose an
offence;
4.
That the charges do not comply with the provisions of section 84 of
Act 51 of 1977 read with
the provisions of section 85(1) of Act 51 of
1977 and further read with section 35(3) of the Constitution.”
[12]
In essence, the applicants’ case in the unterminated
proceedings before the Commercial
Crimes Court was that the State’s
failure to inform them of the charges that they are facing, with
sufficient particularity
to enable them to answer properly thereto,
amounts to a violation of their right to a fair trial.
[13]
Following the submission of detailed heads of argument on behalf of
the parties, which
dealt not only with the applicable legal
principles, but which also contained comprehensive submissions in
respect of each of the
queries raised by the State in the request for
particulars, and the respective answers thereto; and after the
hearing of oral argument,
the second respondent dismissed the
applicants’ objection. Ultimately, the second respondent found
as follows:
“
All
in all I am satisfied that the charges contained in the amended
charge sheet, as amplified in the further particulars constitute
offences and the manner it is alleged to have been committed with
sufficient particularity to comply with section 84(1) and can
be
regarded as reasonably sufficient to inform the accused of the nature
of the charges. Consequent to the above, no Order is made
relating to
the amendment of the charge or delivery of further particulars or
quashing of the charges.
”
[14]
It is this ruling, which forms the subject matter of the present
proceedings.
Interference
with unterminated proceedings in a lower court
[15]
The
applicants contend that the second respondent failed to consider and
deal with the grounds of objection to the charge, as contained
in
their notice of objection, and, as foreshadowed above, seek to review
and set aside the second respondent’s ruling of
6 November 2019
under case number CCC1/47/17, dismissing the applicant’s
application for the quashing of the charges against
the applicants.
In the alternative, the applicants seek an order directing the second
respondent to compel the State to provide
the particulars sought by
the applicants, to the charges.
[16]
The main thrust of the applicants’ contentions is encapsulated
in paragraph 31 of
the founding papers, under the heading “
GROUNDS
FOR REVIEW
”, and is as follows:
“
I humbly submit
that a gross injustice has resulted based on:
31.1.
Second Respondent’s failure to uphold the objection
to the
charges and rule on the Quashing Application;
31.2. Second
Respondent’s failure to consider and deal with the grounds of
objection set out in my Notice to Object to the
charges;
31.3. Second
Respondent’s
finding that the charge
sheet contains clear and unambiguous charges especially referring to
the forgery charges;
31.4
Second Respondent’s finding that no order compelling the state
to provide particulars was called for
.”
[17]
What follows in the succeeding paragraphs of the founding affidavit
are the detailed grounds
upon which the applicants rely for their
contention that the second respondent failed to consider the
applicants’ grounds
of objection to the charge sheet.
[18]
At this
juncture, I am mindful of the fact that the crucial enquiry in review
proceedings is whether the conduct of the decision-maker,
complained
of, prevented a fair trial on the issues; and that such complaints
must be directed at the method or conduct of the
proceedings, and not
at the result thereof.
[4]
I
return to this aspect later.
Legal
framework relevant to the present proceedings
[19]
In terms of section 22 of the Superior Courts Act, 10 of 2013:
“
(1)
The grounds upon which the proceedings of any Magistrates’
Court may be brought under review before
a court of a Division are—
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
(c)
gross irregularity in the proceedings; and
(d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
(2)
This section does not affect the provisions of any other law relating
to the review of proceedings in Magistrates’
Courts.
”
[20]
It is an
established principle of our law that the High Court will not
ordinarily, by way of appeal, review or
mandamus
,
interfere with unterminated proceedings in a lower court. The court’s
power to interfere is exercised sparingly and only
in those cases in
which the court is satisfied that grave injustice may otherwise
result or where justice might not by other means
be obtained. The
court’s reluctance to interfere in unterminated proceedings
stems primarily from (i) the effect that such
procedure has upon the
continuity of proceedings in the court below;
[5]
(ii) the undesirability of hearing appeals and reviews piecemeal;
[6]
and (iii) the fact that redress by other means, such as review or
appeal, will ordinarily be available in due course.
[7]
[21]
In
Wahlhaus and Others v Additional Magistrate, Johannesburg and
Another
(
supra
) the Appellate Division (as it then was)
commented as follows at 120D:
“
[T]he
prejudice, inherent in an accused’s
being obliged to proceed to trial, and possible conviction, in a
magistrate’s court
before he is accorded an opportunity of
testing in the Supreme Court the correctness of the magistrate’s
decision overruling
a preliminary, and perhaps fundamental,
contention raised by the accused, does not per se necessarily justify
the Supreme Court
in granting relief before conviction… As
indicated earlier, each case falls to be decided on its own facts and
with due
regard to the salutary general rule that appeals are not
entertained piecemeal
.”
[22]
In
Adonis
v Additional Magistrate, Bellville and Others
,
[8]
the court at paragraph [22] stated that:
“
Intervention on
review will be justified in the case of a gross irregularity which
has caused, or is likely to cause, prejudice
to the applicant…
In Rynders v Bankorp Ltd t/a Trust Bank and Others
1995 (2) SA 494
(W) it was held that a magistrate’s court did not have power to
grant an ex parte application for the provisional liquidation
of a
close corporation. According to MacArthur J (at 497B-D) the grant of
such an order constituted
any regularity
which caused the applicant ‘substantial wrong’ in that he
was confronted with all the consequences of
a provisional liquidation
order. This entitled the applicant to take the magistrate’s
decision on review, despite the fact
that he might have failed to
exhaust his remedies in the Magistrate’s Court
.”
[23]
In
Ismail
and Others v Additional Magistrate, Wynberg and Another
,
[9]
the court, in assessing what constitutes a gross irregularity
justifying interference before conviction, stated:
“
I
should point out that it is not every failure of justice which would
amount to a gross irregularity justifying interference before
conviction. As was pointed out in Wahlhaus and Others v Additional
Magistrate, Johannesburg and Another
1959 (3) SA 113
(AD at p119,
where the error relied upon is no more than a wrong decision, the
practical effect of allowing an interlocutory remedial
procedure
would be to bring the magistrate’s decision under appeal at a
stage where no appeal lies. Although there is no
sharply defined
distinction between illegalities which will be restrained by review
before conviction on the ground of gross irregularity,
on the one
hand, and irregularities or errors which are to be dealt with on
appeal after conviction, on the other hand, the distinction
is a real
one and should be maintained. A Superior Court should be slow to
intervene in unterminated proceedings in the court below,
and should,
generally speaking, confine the exercise of its powers to ‘rare
cases where grave injustice might otherwise result
or where justice
might not be by other means attained.’ (Wahlaus’s case,
supra at p120)
.”
[24]
The
aforesaid approach, as set out in
Wahlhaus
(supra)
and
Ismail
(supra)
,
was endorsed by the court in
Motata
v Nair NO and Another
[10]
and more recently, by the full bench of this court in
Mispha
CC and Another v The Honourable Regional Magistrate and Others
.
[11]
[25]
In v
Matshikwe
NO v M
,
[12]
the Supreme Court of Appeal commented that:
“
The
higher courts have however emphasised repeatedly that the power to
intervene in unconcluded proceedings in lower courts will
be
exercised only in cases of great rarity – where grave injustice
threatens, and where intervention is necessary to attain
justice. The
same approach has been followed under the Constitution. At the same
time, although the cases in which intervention
has actually occurred
are uncommon, this Court has refused to define or limit the
circumstances in which intervention would
be justified. The
categories remain open.”
[26]
Amongst the
rare cases in which the High Court, has on occasion, seen fit to
intervene in unterminated proceedings are cases where
an accused has
complained that the charge against him/her lacks sufficient
particularity to sufficiently inform him/her of the
case that he/she
has to meet in order to prepare and present his/her defence.
[13]
[27]
In
S
v Mashinini and Another
,
[14]
the court pointed out that:
“
Section
35(3)(a) of the Constitution provides that every accused person has a
right to a fair trial which, inter alia, includes
the right to be
informed of the charge with sufficient detail to answer it. This
section appears to me to be central to the notion
of a fair trial. It
requires in clear terms that, before a trial can start, every accused
person must be fully and clearly informed
of the specific charge(s)
which he or she faces. Evidently, this would also include all
competent verdicts. The clear objective
is to ensure that the
charge(s) is sufficiently detailed and clear to an extent where an
accused person is able to respond and
importantly to defend himself
or herself. In my view, this is intended to avoid trials by ambush.”
[28]
Having said that, each such case is fact specific having regard to
the threshold for intervention
as set out above.
[29]
Accordingly, the question which falls to be determined by this court
is whether the applicants
have demonstrated that there are
circumstances which justify the interference of this court in the
unterminated proceedings. Put
differently, are there circumstances to
satisfy this court that should we not intervene at this stage, grave
injustice may result,
such as to materially prejudice the applicants,
which could not, in due course, be corrected on review or appeal.
[30]
For the reasons detailed below, I am of the view that the answer to
this question must
be in the negative.
Review
in medias res
[31]
On a
careful consideration of the papers before court, the grounds of
review relied upon by the applicants take issue with the result
of
the proceedings in the Commercial Crimes Court and not with the
method thereof. Accordingly, such grounds constitute grounds
of
appeal and not grounds of review. Where proceedings, in substance,
amount to an appeal from the magistrate’s decision
upon the
objection, and in the absence of circumstances justifying the
intervention of the court in the unterminated proceedings,
the courts
are aligned in their view that appeals will not be entertained
piecemeal. Matters must run their course to fruition
and in the event
of a guilty finding, the whole matter ought to be decided on appeal,
should such appeal be brought.
[15]
[32]
In the
context of review proceedings, the court, in the oft-quoted passage
in
Ellis
v Morgan
,
stated as follows:
[16]
“
But
an irregularity in proceedings does not mean an incorrect judgment;
it refers not to the result, but to the methods of a trial,
such as,
for example, some high-handed or mistaken action which has prevented
the aggrieved party from having his case fully and
fairly
determined.”
[33]
The
aforesaid principle was thereafter qualified in
Goldfields
Investments Ltd and Another v City Council of Johannesburg and
Another
[17]
wherein the court expressed that:
“
The
law, as stated in Ellis v Morgan (supra) has been accepted
in subsequent cases, and the passage which has been quoted
from that
case shows that it is not merely high-handed or arbitrary conduct
which is described as a gross irregularity; behaviour
which is
perfectly well-intentioned and bona fide, though mistaken,
may come under that description. The crucial
question is whether
it prevented a fair trial of the issues. If it did prevent a fair
trial of the issues then it will amount to
a gross irregularity. Many
patent irregularities have this effect. And if from the magistrate’s
reasons it appears that his
mind was not in a state to enable him to
try the case fairly this will amount to a latent gross irregularity.
If, on the other
hand, he merely comes to a wrong decision owing to
his having made a mistake on a point of law in relation to the
merits, this
does not amount to gross irregularity. In matters
relating to the merits the magistrate may err by taking a wrong one
of several
possible views, or he may err by mistaking or
misunderstanding the point in issue. In the latter case it may be
said that he is
in a sense failing to address his mind to the true
point to be decided and therefore failing to afford the parties a
fair trial.
But that is not necessarily the case. Where the
point relates only to the merits of the case, it would be straining
the language
to describe it as a gross irregularity or a denial of a
fair trial. One would say that the magistrate has decided the
case
fairly but has gone wrong on the law. But if the mistake leads
to the Court’s not merely missing or misunderstanding a point
of law on the merits, but to its misconceiving the whole nature of
the inquiry, or of its duties in connection therewith, then
it is in
accordance with the ordinary use of language to say that the losing
party has not had a fair trial.
”
[34]
The Supreme Court of Appeal, in
Telcordia Technologies Inc.
(supra)
, drew a distinction between the reasoning of the
decision-maker and the conduct of the proceedings, and warned that
the two concepts
ought not to be confused with one another.
[35]
The
Constitutional Court
in
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
,
with reference to the aforesaid distinction, said as follows:
[18]
“
Both Ellis and Goldfields make
it plain that the crucial enquiry is whether the conduct of the
decision-maker
complained of prevented a fair trial of issues. The
complaint must be directed at the method or conduct and not the
result of the
proceedings. And the reasoning of the decision-maker
must not be confused with the conduct of the proceedings. There is a
fine
line between reasoning and the conduct of the proceedings, and
at times it may be difficult to draw the line; there is nevertheless
an important difference.”
[36]
The applicants have conflated the reasoning of the second respondent
with the conduct of
the proceedings.
[37]
The grounds of review, belatedly raised in the applicants’
heads of argument, which
are at variance with the grounds of review
relied upon in the papers before court, were no doubt included in an
attempt to supplement
the applicants’ papers due to the
inherent shortcomings in the allegations contained therein. Not only
were such grounds
not properly raised before this court, but they do
little to assist the applicants if regard is had to the second
respondent’s
ruling as a whole. Further and in any event, such
grounds do not lead to a conclusion that the conduct of the
proceedings was such
as to vitiate the applicants’ rights to a
fair trial.
[38]
Regard being had to the aforesaid, and having arrived at the
conclusion, which I have recorded
in paragraph [31] above, this
aspect alone warrants the dismissal of the applicants’ review
in medias res
.
[39]
Even if I am incorrect in this conclusion, whether or not the
applicants are satisfied
with the result of the objection
proceedings, there can be no doubt that the second respondent
considered the applicants’
grounds of objection and applied his
mind thereto in deliberating the issues before him. This much is
clear from a reading of the
ruling in question. There is nothing from
the second respondent’s reasons from which it is apparent that
his mind was not
in a state to enable him to try the matter fairly or
that his conduct prevented a fair trial of the issues.
[40]
I am not persuaded that the applicants have shown the presence of any
of the grounds referred
to in
section 22
of the
Superior Courts Act;
nor have
they demonstrated that there are circumstances to satisfy
this court that absent an intervention at this stage, grave injustice
may result, such as to materially prejudice the applicants, which
could not, in due course be corrected on review or appeal. I
deal
with this in greater detail below.
[41]
Accordingly, the applicants’ application for review
in
medias res
, must, on either of these additional grounds, meet the
same fate.
Applicants’
request for a
mandamus
[42]
Having previously established that the applicants have failed to set
out any circumstances
which warrant the interference of this court at
the present juncture, it follows that whilst the court, in principle,
has the power
to order a
mandamus
in proceedings of this
nature, the applicants’ application, in the particular
circumstances of this matter, must fail.
[43]
What follows are my reasons for the aforesaid conclusion.
[44]
Prior to giving context to the applicants’ complaints in
respect of the charges in
further detail, it is significant that the
applicants, whilst they arrive at certain conclusions of fact and
law, have failed to
set out a factual foundation therefor.
[45]
The highwater mark of the applicants’ case is that (i) “
a
gross injustice has resulted
” given the ruling of the
second respondent; (ii) the second respondent’s failure to
consider the replies to the request
for particulars, with specific
reference to count’
s 3
and
5
, adequately or at all, “
was
a gross irregularity and irreparably infringed
” the second
applicant’s “
right to a fair trial
”; (iii)
the charges lack particularity especially insofar as they concern the
second applicant, in his personal capacity,
and accordingly, the
second respondent “
did not consider that
” the
second applicant’s “
fair trial rights as well as that
of the First Applicant have been negated alternatively infringed
”;
and (iv) the second respondent’s failure to properly consider
that the forgery charges, at best, lack particularity
as to the
second applicant’s involvement and that such failure “
amounts
to a gross irregularity and a negation of
” the second
applicant’s “
constitutional rights which would bring
justice into disrepute
.”
[46]
However, notwithstanding the aforesaid allegations, the applicants
have failed to state
(i) what grave injustice they contend may
result, absent an intervention by this court at the present stage;
and (ii) in what manner
the applicants are materially prejudiced,
which prejudice cannot, in due course, be corrected on review or
appeal.
[47]
On a proper analysis, the applicants’ main contentions are that
the second respondent
failed to consider that the respective charges
of fraud and forgery lack particularity as to the second applicant’s
alleged
involvement, in his personal capacity, and as such, such
charges do not disclose offences. As a consequence, the applicants
contend
that they are entitled to an order for the quashing of the
charges (which requires in the first instance a review of the second
respondent’s decision, and which aspect I have dealt with
earlier in this judgment); alternatively, to a
mandamus
directing the second respondent to order the delivery of the
particulars sought. It is this latter aspect, which is currently
under consideration.
[48]
At this juncture, it is apposite to revisit the respective
definitions of fraud and forgery.
Whist fraud is the unlawful and
intentional making of a misrepresentation, which causes actual
prejudice or which is potentially
prejudicial to another; forgery is
the unlawful and intentional making of a false document to the actual
or potential prejudice
of another.
Forgery
[49]
In respect of charges 3 and 5, being those of forgery as against the
second applicant,
the applicants contend that the charges fall foul
of section 84(1) of the Act in that the State does not know who
forged the documents
in question; when and where the said documents
were forged; and in what manner they were forged. Accordingly, the
applicants objection
to the charges is taken in accordance with
section 85(1)(c) of the Act, in that the charges do not disclose an
offence.
[50]
Leaving
aside for the moment the question of whether or not the State knows
who forged the documents; on a reading of the charges,
transcribed
above, together with the preamble to the charge sheet, the State
contends that the documents in question were forged
on or about 19
October 2009, at or near the Department of Education, Eastern Cape.
No ambiguity is created by the State’s
response to the further
particulars as to time and place, if such responses are read
contextually. The responses to the relevant
questions merely served
to advise that the State was unable to state with precision, the time
and place of the forgery save as
already set out in the charge sheet.
In any event, if the time when an offence was allegedly committed is
not a material element
of the offence (as in the present instance),
the failure to refer to time, does not render the charge
defective.
[19]
This too is so
for the place where the crime was allegedly committed.
[20]
[51]
As to the
manner in which the documents were said to be forged, it is clear
that the State’s contention is that same were
forged in their
entirety in that they were not issued by SARS. It is trite that the
falsification of a document can be achieved
in one of many ways. In
this respect, a document which falsely purports to be a copy of a
non-existent document is a forged document.
[21]
[52]
This then leaves the aspect of
actus reus
. If regard is had to
the wording of the charge sheet, together with the preamble thereto,
there can be no doubt that the State’s
case against the second
applicant is that it was he who forged the documents in question,
personally. This much is apparent from
the clear wording of the
respective charges. The second applicant is not charged as an
accomplice or an accessory of any kind.
The difficulty which arises
is that, notwithstanding the above, the applicants requested, in
their request for particulars, for
the State to confirm unequivocally
if it is the State’s case that the second applicant forged the
documents personally. This
query was raised in respect of both counts
of forgery. In answer thereto, the State responded as follows:
“
The State
does
not know who forged the document, however the accused was the only
person or entity who stood to benefit through the said action
.”
[53]
It is for this reason that the applicants contend that the State does
not know who forged
the documents in question and conclude that the
charges do not disclose an offence, warranting the relief sought.
[54]
It is
accordingly necessary to consider what is required of the State at
this stage of the proceedings.
On
a procedural level it is required of the state to inform the accused
of all the essential averments, and a charge sheet should
contain all
the essential allegations to be proven by the prosecution in order to
sustain a guilty verdict.
[22]
Section 84 of the CPA reads as follows:
“
(1)
Subject to the provisions of this Act and of any other law relating
to any particular offence, a charge shall
set forth the relevant
offence in such manner and with such particulars as to the time and
place at which the offence is alleged
to have been committed and the
person, if any, against whom and the property, if any, in respect of
which the offence is alleged
to have. been committed,
as
may be reasonably sufficient to inform the accused of the nature of
the charge
.
(2)
Where any of the particulars referred to in subsection (1) are
unknown to the prosecutor it shall be
sufficient to state that fact
in the charge
.”
[Own
emphasis].
[55]
A charge sheet ought to inform an accused with
sufficient detail of the charge he or she has to face. An accused’s
right to
be duly informed of the charge against him or her is
guaranteed in section 35(3)(a) of the Constitution, 1996, which reads
as follows:
“
Every
accused person has a right to a fair trial, which includes the right-
(a)
to be informed of the charge
with
sufficient detail to answer it
.”
[Own
emphasis].
[56]
The
charge sheet should set forth the relevant elements of the offence
that has been committed and the manner in which such offence
was
committed. An accused should not be left to speculate about an
element of the offence.
[23]
[57]
In
R
v Alexander and Others
,
[24]
it was stated that:
“
The
purpose of a charge-sheet is to inform the accused in clear and
unmistakable language what the charge is or what the charges
are
which he has to meet. It must not be framed in such a way that an
accused person has to guess or puzzle out by piecing sections
of the
indictment or portions of sections together what the real charge is
which the Crown intends to lay against him.
”
[58]
Accordingly,
the primary determination is whether the charges sufficiently inform
the second applicant of what case he has to meet.
[25]
[59]
I am satisfied that the charge sheet sets out the relevant elements
of the offence of forgery
in respect of counts 3 and 5, including the
manner in which the offences were committed. Notwithstanding that the
State, at this
point, does not know, with certainty, the identity of
the person who forged the documents, it is clear from the unambiguous
terms
contained in the charge-sheet that the State has nailed its
colours to the mast and relies solely on the personal liability of
the second applicant. It cannot be gainsaid that the second applicant
has sufficient detail to (i) inform him of the nature of the
charges
against him; (ii) enable him to answer thereto; and (iii) properly
mount his defence. There can be no question that the
second applicant
is not at risk of a trial by ambush or prejudiced in his preparations
for trial. Whether the State will, in due
course, be in a position to
prove its case on the evidence available to it, which evidence is not
within the particular knowledge
of this court, is not for this court
to determine. I am not at liberty, at this stage of the proceedings,
to draw an inference
concerning the strength or weakness of the
State’s case from the prosecutor’s inability to furnish
particulars.
Fraud
[60]
Taking into account the aforesaid authorities, and on a careful
consideration of the charge-sheet,
read together with the preamble
thereto, as amplified by the further particulars, I am satisfied that
the charge sheet sets out
the relevant elements of the offence of
fraud, as against the first applicant, in respect of count 1, and as
against the second
applicant in respect of counts 1, 2 and 4, and
that same complies with section 84(1) of the CPA.
[61]
Insofar as the applicants contend that the State has refused to
identify the presumptions
in terms of section 332 of the Act, upon
which it shall rely at trial, same is without merit. The State has
advised that it intends
relying on the presumptions, which have not
yet been declared unconstitutional. The relevant sub-sections of
section 332 of the
CPA which remain in operation, and which are of
relevance to the proceedings against the respective applicants are
limited to those
which pertain to corporate bodies and
directors/servants thereof and are self-evident.
[62]
Moreover, it is clear that the State, in the main, seeks to hold the
first applicant liable
for the actions of the second applicant in the
exercise of his powers or in the performance of his duties as a
director of the
first applicant, such actions being the respective
misrepresentations as contained in the respective charges. It is
further clear
that the State seeks to hold the second applicant
liable for his own actions. In the alternative, the applicants are
appraised
of the fact that the case that the second applicant has to
meet is that he assisted another person in committing the frauds (ie,
he could be held liable as an accomplice for the actions on behalf of
a servant or agent of the first applicant on the instructions
of the
second applicant). By the same token, the first applicant is
appraised of the fact that its liability may stem from the
performance of the actions of a servant or an agent of the first
applicant in the exercise of his or her powers or in the performance
of his or her duties as a servant or an agent in the furthering or
endeavouring to further the interests of the first applicant,
on the
instructions of the second applicant.
[63]
Failure to
provide the identity of the said servants and/or agents, which in any
event is not within the knowledge of the prosecutor,
does not render
the charge defective.
[26]
Conclusion
[64]
I am accordingly of the view that the applicants have not made out a
case to warrant departing
from the general principle that the High
Court will not ordinarily interfere with unterminated proceedings in
a lower court.
[65]
Given the nature of these proceedings, I am of the view that each
party should be ordered
to pay their own costs.
[66]
In the result, I make the following order:
1.
The application is dismissed.
2.
Each party is ordered to pay their own costs of the application.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
I
agree:
M
LOWE
JUDGE
OF THE HIGH COURT
Appearances:
For
the Applicants:
C.J van
Schalkwyk SC assisted by J.P Broster
Instructed
by:
Pather & Pather Attorneys c/o Nolte Smit Attorneys
51A High Street, Makhanda
For
the First Respondent: N.L.
Ntsepe
Instructed
by:
The State Attorney c/o Yokwana Attorneys
10 New Street, Makhanda
[1]
[2005] ZACC 1
;
2005
(4) SA 581
(CC) at paragraph
[25]
.
[2]
Wahlhaus
& others v Additional Magistrate, Johannesburg & Another
1959 (3) SA 113
(AD) at 119G.
[3]
Pursuant to a tender.
[4]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) at 112E.
[5]
Wahlhaus
& others v Additional Magistrate, Johannesburg & Another
1959 (3) SA 113
(AD) at 119H – 120A.
[6]
Motata
v Nair and Another
[2008] ZAGPHC 215
;
2009 (1) SACR 263
(TPD) at 267 at paragraph [12].
[7]
Wahlhaus
& others v Additional Magistrate, Johannesburg & Another
1959 (3) SA 113
(AD) at 119H – 120A.
[8]
2007 (2) SA 147 (C).
[9]
1963 (1) SA (A).
[10]
[2008] ZAGPHC 215
;
2009 (1) SACR 263
(TPD) at paragraphs [9] and [10].
[11]
Case No.: 2647/2011, ECD Grahamstown (as it then was) (delivered on
18 September 2013).
See
also:
Sizani v Mr Mpofu N.O. and Another
, Case No.:
2804/2019, ECD Grahamstown (as it then was) (delivered on 18 August
2020).
[12]
[2003]
3 All SA 11 (SCA).
[13]
Weber
and Another v Regional Magistrate, Windhoek
1969 (4) SA 394
(SWA) at 397 F-G.
See
also:
Behrman v Regional Magistrate, Southern Transvaal and
Another
1956 (1) SA 318
(T).
See
also:
Essop v Regional Magistrate, Western Transvaal and Another
1963 (1) PH
H16 (T).
[14]
2012 (1) SACR 604
(SCA) at paragraph 11.
[15]
Lawrence
v ARM of Johannesburg
1908 TS 525.
[16]
Ellis v
Morgan; Ellis v Dessai
1909 TS 576.
See also:
Telcordia
Technologies Inc v Telkom SA Ltd
2007 (3) SA 266 (SCA) at
paragraph [72].
[17]
1938 TPD 551.
[18]
2008 (2) SA 24
at paragraph [265].
[19]
S v
Vilakazi
2016 (2) SACR 365
(SCA); read with section 92(1)(c) of the CPA.
[20]
It is only where the offence for which the person is alleged to have
been charged with may only be committed in a particular
place, such
as on a public road, that the place is an indispensable element of
the offence. See
R
v Mapikitla
1950 91) SA 336 (GW).
[21]
R v
Motete
1943 OPD 55.
See
also:
R v Leballo
1954 (2) SA 657
(O).
[22]
S v
Sewela
2007 (1) SACR 123
(W).
See
also:
S v Essop
2014 (2) SACR 495
(KZN) at paragraph [38].
[23]
S v
Essop
(supra) at paragraphs [42] and [47].
[24]
1936 AD 445
at 447.
[25]
Behrman
v Regional Magistrate, Southern Transvaal and Another
1956 (1) SA 318
(T) at 320 A.
[26]
Section 84(2) of the Act.