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[2018] ZAGPJHC 607
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Du Plessis v S (A232/2017) [2018] ZAGPJHC 607 (29 October 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A232/2017
In
the matter between:
DU
PLESSIS: JOHANNES
CHRISTOPHER APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
TWALA
J
[1]
The central issue in this appeal is whether a director of a company
can be held criminally liable for the acts or omissions
of the
company which are an offence punishable by law. The appellant, a
financial direct of a company, was on the 24
th
of March
2015 convicted on ten (10) counts of contravening section 58(d) read
with sections 1,7 and 28(1) of the Value Added Tax
Act, 89 of
1991(“The Act”).
[2]
It is common cause that the appellant, an accountant, was appointed
financial director of ECE Property Holding CC (ECE) in July
2007. It
is not in dispute that ECE failed to submit vat returns and to make
payment of value added tax (“Vat”) money
over to South
African Revenue Service amounting to R138 593.03 for the period
as it appears on schedule A to the charge sheet.
It is further not in
dispute that the appellant was initially employed as the accountant
of ECE before he was appointed the financial
director.
[3]
It is trite law that the burden 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.
[4]
In the case of
S v Jackson
1998 (1) SACR 470
(SCA) at 476
the
court stated as follows:
“
Burden is
on the State to prove the guilt of an accused beyond reasonable
doubt, no more and no less. The evidence in a particular
case may
call for a cautionary approach, but that is a far cry from the
application of a general cautionary rule.”
[5]
In the case of
S v Ntsele
1998 (2) SACR 178
(SCA)
Eksteen AJA
(as then he was) stated the following:
“
Prove
guilt beyond reasonable doubt – not beyond a shadow of doubt –
if only remote possibility in his favour which
can be dismissed with
the sentence ‘of course it is possible, but not in the least
probable’, the case is proved beyond
reasonable doubt.”
[6]
In the case of
Shackell v S
2001 (4) ALL SA 279
(SCA)
Brand
AJA (as then he was) stated the following:
“
A Court
does not have to be convinced that every detail of an accused’s
version is true. If the accused’s version is
reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course it is permissible
to test the
accused’s version against the inherent probabilities. But it
cannot be rejected merely because it is improbable;
it can only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable that it cannot reasonably
possibly be true.”
[7]
Section 332(5) of the Criminal Procedure Act, 51 of 1977 (“the
CPA”) provides as follows:
“
When an
offence has been committed, whether by the performance of any act or
by failure to perform any act, for which any corporate
body is or was
liable to prosecution, any person who was, at the time of the
commission of the offence, a director or servant of
the corporate
body shall be deemed to be guilty of the said offence, unless it is
proved that he did not take part in the commission
of the offence and
that he could not have prevented it, and shall be liable to
prosecution therefor, either jointly with the corporate
body or apart
therefrom, and shall on conviction be personally liable to punishment
therefor.”
[8]
I find myself in disagreement with counsel for the appellant in the
contention that a director of a company can be held liable
joint and
severally with the company only in civil matters. Section
332(5) of the CPA specifically provides for the director
or servant
of the corporate body to be found guilty where certain acts were not
performed or were performed on behalf of the corporate
body whilst
the said person was a director or servant of the corporate body. The
appellant was during the periods mentioned in
the charge sheet an
employee and then became a director of ECE.
[9]
I am unable to agree with counsel for the appellant that it was
impossible for the appellant to perform or to submit the vat
returns
and to make payment of the vat amount due to the South African
Revenue Service for it is only his co-director who had the
authority
to authorise such payments. It is on record that the company did
receive moneys due to SARS, but the directors decided
to utilise that
money to pay other pressing debts with the understanding that SARS
will be paid at a later stage.
[10]
The question that begs to be asked is what a reasonable financial
director in the circumstances of the appellant would have
done.
It is on record that the appellant, although not paying the vat over
to SARS, he did not remonstrate with his co-directors
and resigned
from the ECE because he was prevented from performing certain of his
duties but continued to receive his salary. He
was comfortable with
the arrangement that SARS will be paid at a later stage and to
continue negotiating alternative payment arrangements
with SARS. In
my view, this is an internal arrangement amongst the directors of ECE
and cannot be said to be an impossibility of
performance on the part
of the appellant. It cannot therefore be a bar or defence to criminal
liability in terms of section 332(5)
of the CPA.
[11]
I do not agree with the submission by counsel for the appellant that
the conviction on count 1 should be set aside since the
offence was
committed in April 2007 before the appellant took his position as
financial director in July 2007. According to the
record, the
uncontroverted testimony of Mr Pretoruis for the State is that the
vat return for April 2007 was submitted by the appellant.
It is my
considered view therefore that the appellant was the servant or
employee of ECE in April 2007 before he was appointed
as its
financial director July 2007. The appellant therefore falls within
the ambit of section 332(5) of the CPA as stated above
and therefore
cannot escape criminal liability together with ECE which he worked
for.
[12]
It is my considered view therefore that one cannot falter the Court a
quo in finding the appellant guilty on all ten (10) counts
sine the
State did prove its case against the appellant beyond reasonable
doubt. In the result, I am of the view that the appeal
falls to be
dismissed.
[13]
In the circumstances, I make the following order:
The
appeal is dismissed.
_________________
TWALA
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
I
agree.
______________
MATSEMELA
AJ
ACTING
JUDGE OF THE HIGH COURT OF
SOUTH
AFRICA, GAUTENG LOCAL DIVISION
Date
of hearing: 18 October 2018
Date
of Judgment: 29 October 2018
For
the Appellant: ADV. M Van Wyngaard
Instructed
by: Kruger & Okes Attorneys
TEL:
011 814 3444
For
the Respondent: ADV. L Jobo
Instructed
by: Director of Public Prosecutions
TEL:
011 220 4217