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[2007] ZASCA 119
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S v Mngqibisa (75/07) [2007] ZASCA 119; 2008 (1) SACR 92 (SCA) (27 September 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 75/07
REPORTABLE
In
the matter between:
ABNER
MNGQIBISA
.......................
APPELLANT
v
THE
STATE
.......................
RESPONDENT
Before:
Brand, Mlambo et Combrinck JJA
Heard:
6 September 2007
Delivered:
27 September 2007
Summary: Criminal law –
fraud – appellant making false representation to an employee of
the complainant – subsequently
he stated correct facts to
another employee – initial statement calculated to prejudice
complainant.
Neutral
citation: This judgment may be referred to as
Mngqibisa
v The State
[2007]
SCA 119 (RSA)
JUDGMENT
MLAMBO JA
[1]
The appellant was the insured under a short term motor vehicle
insurance policy underwritten by Auto and General (Pty) Ltd in
respect of his Fiat Uno. In terms of the policy the appellant and his
then fiancée, Aura Thandeka Magagula (now his wife),
were
the designated drivers of the Uno even though his wife was at the
time the holder of a learner driver’s license. The policy
provided that additional excess was payable, in the event of a claim,
where the driver at the time was in possession of a learner
driver’s
licence. As fate would have it, the Uno, driven at the time by the
appellant’s wife, was involved in a collision
with a truck on
the N4 motorway between Ngodwana and Waterval Boven, Mpumalanga
Province.
[2]
After lodging a claim the appellant, during a telephone conversation
with Derek Fabian Jefta, an employee of Hotline Administrative
Services (Pty) Ltd, informed Jefta that he was driving the Uno at the
time of the collision. Hotline Administrative Services (Pty)
Ltd was
contracted by Auto and General to manage and administer claims, on
its behalf and Jefta’s responsibility was to receive
and
process claims from policy holders. In a subsequent telephone
discussion with Hendrik van Staden, a claims assessor also employed
by Hotline Administrative Services, the appellant informed the latter
that his wife was in fact the driver at the time of the collision.
[3]
The claim, assessed at R37 000 was never paid out, after it was
verified that the appellant’s wife was the driver and that
she
was in possession of a learner driver’s licence. Moreover, as a
consequence of his misstatement to Jefta the appellant
was charged on
one count of fraud. According to the charge sheet the indictment was
that he made the false representation to Jefta,
well knowing that it
was false and he thereby caused potential prejudice to Hotline
Administrative Services and/or Auto and General,
in that the latter
may have been induced to pay out under the policy on the basis that
the statement was true.
[4]
In
the ensuing trial in the Pretoria Specialized Commercial Crimes Court
the appellant was convicted but the imposition of sentence
was
postponed for a period of five years in terms of
s 297(1)(a)(ii)
of
the
Criminal Procedure Act 51 of 1977
, as amended. An appeal against
the conviction was dismissed by the Pretoria High Court (Mabesele and
Van Zyl AJJ). The high court
however granted him leave to pursue the
current appeal in this court.
[5]
In convicting the appellant the trial court found that the appellant,
despite his denial, had in fact misrepresented to Jefta
that he was
the driver whilst he was well aware that he was not. The trial court
also found that Hotline Services and/or Auto and
General had been
exposed to potential prejudice in that they could have received a
lesser excess. This resulted from the provision
in the policy that in
the event of the driver being in possession of a learner driver’s
licence only, the excess would be greater.
[6]
It is prudent to consider the origins and development of potential
prejudice as an element of the offence of fraud. An examination
of
the early authorities reveals that the concept of potential prejudice
was by no means unanimous. Judicial opinion favoured an
approach that
required proof of actual prejudice to found a conviction. In
R
v Poley
(1878)
1 Buchanan 49 at 50 the following is stated:
‘
In
this case, that there was criminal intention, there appears to me to
be little doubt; but there is a further requisite, namely,
an actual
prejudice occasioned to a third person. Simple lies, when the
foregoing requisites are wanting, are not within the cognizance
of
the criminal law.’
See
also
Queen
v Brandford
(1889)
7 S.C. 169
at 173-174 and
Queen
v Ntshanga
(17
CCJ) 280
at 281.
[7]
The first authoritative judicial espousal of potential prejudice is
found in
R
v Moolchund
(1902)
23 NLR 76.
There, Mason J, after an examination of the early
authorities formulated the concept in the following terms:
‘
We
are therefore satisfied that where all the requisites of the crime
are present, except the actual happening of the contemplated
or
intended injury or prejudice the falsifier is liable to be punished
for the
crimen
falsi
.
It would be monstrous, we think, if because a person’s wicked
machinations have been defeated, or unsuccessful, on account
of the
intervention of some third person, or the occurrence of some event
beyond his control, or because his misrepresentations were
not
believed or were not acted upon, that he should escape the penalty of
the law.’
(at
81)
[8]
This exposition of the law was embraced in subsequent cases such as
R
v Jolosa
1903
TS 694
at 698 where the court stated:
‘
It
would be indeed monstrous that if a man forged a cheque and presented
it at the bank, and the bank did not cash it, he should not
be guilty
of the crime of falsity because no one had been injured. All the
elements of the crime of forgery would in such a case
be present. The
act would be one calculated and intended to prejudice a third person,
and that, in my opinion, by Roman-Dutch law
would be sufficient
without proof of actual prejudice to such person.’
[9]
Further clarification regarding the nature of the false
representation came in
R
v Kruse
1946
AD 524
at 533 where the court stated that:
‘
.
. . if the false representation is of such a nature as, in the
ordinary course of things, to be likely to prejudice the complainant,
the accused cannot successfully contend that the crime of fraud is
not established because the crown has failed to prove that the
false
representation induced the complainant to part with his property.’
This
approach has consistently been followed over the years. See
R
v Dyonta
1935
AD 52
at 57;
R
v Heyne
1956
(3) SA 604
(A) at 622;
S v
Kruger
1961
(4) SA 816
(A) at 832D-E and
S
v Friedman
(1)
1996 (1) SACR 181
(W). It is with this treatise of the law that I
revert to the case before us.
[10]
Appellant’s counsel submitted that when the appellant informed
Jefta that he was the driver, he had no wilful intent to
deceive.
Counsel advanced two bases for this submission. Relying on certain
statements made by the appellant in the course of lodging
his claim
with the insurance company, he submitted, in the first place, that
because the appellant was a passenger in the Uno and
was giving
instructions to his wife, he considered himself to be the driver.
There is no merit in this submission. The appellant
is an educated
person and could never have been under any illusion that he could be
described as the driver. Therefore, his statement
that he was the
driver was, to his knowledge, misleading.
[11] The second
basis advanced by counsel was that, according to the appellant, as a
fact it made no difference whether he or his
wife was the driver.
This relates to the appellant’s version based on the policy
that he and his wife were the designated drivers
and that in the
event of the Uno being damaged whilst being driven by either of them,
Auto and General would pay. This submission
is also without merit.
Even if Auto and General was liable irrespective of who the driver
was, the argument flounders on the simple
fact that a higher excess
was payable if the driver of the Uno at the time of the collision was
in possession of a learner driver’s
licence only.
[12]
I am therefore satisfied that potential prejudice was shown on the
facts before us which was neither too remote nor fanciful
(see eg
R
v Seabe
1927
AD 28
at 34). It is of no assistance to the appellant that he
subsequently told the truth. Potential prejudice is occasioned at the
time
of making the false representation and this must be determined
on the facts of each case (see eg
S
v Kruger
supra
at
828A-B). The appellant was therefore correctly convicted of fraud.
[13]
I must however point out that the reliance by the trial court and the
court
a quo
on
the alleged second misrepresentation by the appellant that he was
present in the Uno at the time of the collision, was misdirected
as
the charge sheet did not go that far. It was in fact not necessary to
consider that statement as the appellant was clearly guilty
on the
representation he made to Jefta.
[14]
The appeal therefore falls to be dismissed.
____________
D MLAMBO
JUDGE OF APPEAL
CONCUR:
BRAND JA
COMBRINCK JA