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[2011] ZAFSHC 60
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S v Mdantile (418/2010) [2011] ZAFSHC 60; 2011 (2) SACR 142 (FB) (17 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 418/2010
In the review between:-
THE STATE
and
THAMI MDANTILE
_____________________________________________________
CORAM:
HANCKE,
J et RAMPAI, J
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
17 MARCH 2011
_____________________________________________________
[1] The matter came by
way of a special review in terms of section 304(4) Act 51 of 1977.
The accused was arrested on 3 March 2010
and charged with the offence
of fraud. His second appearance in the Bloemfontein District Court
was on 11 March 2010. On that
day he pleaded guilty to the charge.
He was not legally represented. He was found guilty. He was then
sentenced to R2 000,00
or 2 (two) months imprisonment in default of
payment. The entire sentence was conditionally suspended.
[2] The matter
subsequently came to the attention of Mr. Mokgobo, the district
control magistrate. He had some reservations about
the correctness
of the conviction. He apparently discussed the matter with the
district trial magistrate, Mr. Nikamanzi. The two
magistrates
fundamentally differed. The trial magistrate firmly held the view
that the conviction was sound in law, a view not
shared by the
control magistrate. They jointly caused the matter to be taken up on
special review.
[3] Before I deal with
the divergent views of the magistrate, I deem it necessary to outline
the historical background. The matter
was initially allocated to
Mthembu AJ. On 20 September 2010 he referred the matter to the
Deputy Director of Public Prosecutions
and requested for some input
by way of written heads of argument.
[4] The director’s
written comments were dated 11 November 2010. By them Mthembu AJ was
no longer acting. The matter was
then allocated to Murray AJ. On 15
December 2010 she stated:
“
I have studied the record and
the reasons provided by the Magistrate and the Control Magistrate, as
well as the submissions by Adv
Giorgi and fully agree with her
conclusion and recommendation.
I therefore conclude that the
indictment on which the accused was convicted was invalid and that
institution of proceedings de novo
in terms of Section 324(b) of Act
51 of 1977 would be appropriate in the instant case and that the
accused should be charged with
the contravention of Section 12(1)(s)
of Schedule 1 of Act 9 of 1989.
The following order is therefore made:
The conviction and sentence is set
aside.”
[5] On 30 December 2011
Ms Rose Motaung, the lady responsible for the reviews in this
division, returned the record to the Bloemfontein
District Court. I
am given to understand that Musi JP subsequently received a query.
On his instructions the district court record
was recalled. The
matter was then allocated to me on 22 February 2011.
[6] The procedure for
dealing with special cases which come to the high court from the
magistrates’ court in terms of section
304(4) Act 51 of 1977
for special reviews, is laid down in section 304(2)(a). The section
provides:
“
(2)
(a)
If, upon
considering the said proceedings, it appears to the judge that the
proceedings are not in accordance with justice or that
doubt exists
whether the proceedings are in accordance with justice, he shall
obtain from the judicial officer who presided at
the trial a
statement setting forth his reasons for convicting the accused and
for the sentence imposed,
and shall thereupon lay the record of
the proceedings and the said statement before the court of the
provincial or local division
having jurisdiction for consideration by
that court as a court of appeal
:”
[7] The
proviso
is
not relevant to the case at hand, hence I have omitted it. The
required statement by the trial magistrate and another by the
control
magistrate were already included in the record when it was first
dispatched to this high court from the district court.
[8] It is obvious
ex
facie
its structural form on paper that the order so made on 15
December 2010, did not comply with the letter of the law (section
304(2).
In the first place, it was embodied in an informal
memorandum instead a formal judgment. In the second place, it was
not signed
by any other judge who share the views expressed and
concurred with the writer of the judgment. In the third place, it
was not
delivered in an open court as a review judgment is supposed
to.
[9] The learned acting
judge erred as regards the internal procedure, structural format and
external mode of communicating with
the magistrates’ court
concerned. The order was retrieved before the trial magistrate had
acted on it. In the circumstances
the memorandum or letter had no
binding force of a court order. For all intents and purposes it can
be regarded as
pro non scripto
.
[10] Having disposed of
that aspect, I now turn to the review. The charge against the
accused was one of fraud. The prosecution
alleged that the accused
unlawfully, falsely and with intent to defraud gave out and pretended
to Mr. Alpheus Boy Themba in Bloemfontein
on 3 March 2010, to the
prejudice or potential prejudice of the South African Railways, that
he was a lawful holder of a railway
ticket, whereas when he so gave
out and so pretended, the accused knew that, in truth and in fact, he
did not have a valid ticket
that allowed him to be inside the train
and to travel by train to his intended destination.
[11] On 11 March 2010 the
accused pleaded guilty to the aforesaid charge in terms of section
112(1)(b) Act 51 of 1977. Accused
was apparently asked to tell the
court about the circumstances which led to his arrest at the
Bloemfontein railway station.
“
On the 3 March 2010, I was at
train Station Bloemfontein. I without a valid train ticket I bought
(sic) a train by sneaking in
(sic) the train. I gave the Security
Officer R20,00 to allow me to enter the platform and I (sic) can get
inside the train when
nobody sees me I then entered the platform and
got inside the train. The SAPS members were doing the stop and
search inside the
train and (sic) believe that commuter point out to
train (sic) that I bought (sic) the train without a ticket.”
[12] When the accused was
through with his own explanation, the following exchange in the form
of question and answer took place
between the magistrate and the
accused:
“
Did you have a train ticket
with you.
No.
Did you know it was wrongful and
punishable to climb (sic) a train without a ticket?
Yes.
Do you admit that this incident took
place, have (sic) in Bloemfontein (sic) the jurisdictional area of
these (sic) court.
Yes.
Do you also admit that Transnet did
not allow you to climb (sic) the train without a ticket.
NB
No answer by the accused
recorded.
You
misrepresented
yourself as
a person who has (sic) a train ticket. (my emphasis)
NB
No comment by the accused
recorded.”
[13] On the strength of
his plea as explained by the accused and amplified or supplemented by
his answers to the judicial questions,
the trial magistrate found the
accused guilty as charged. It is regrettable that the accused’s
answers, if any, were not
recorded. It is also lamentable that no
penetrating judicial questions were asked about his encounter with
Mr. Themba, the ticket
examiner especially as regards the element of
false representation.
[14] The district control
magistrate had some reservations as to whether, on the proven facts,
the conviction of the accused could
be sustained as sound in law. He
came to the conclusion that the conviction on a charge of fraud could
not stand. Therefore,
he asked that the conviction and sentence be
set aside and that a retrial be directed.
[15] The issue in the
case or rather the question of law to be determined in this special
review, is whether the accused was correctly
convicted of fraud or
not? Whenever a lower court seeks special guidance of a high court
in terms of section 304(4) on a question
of law certainty, must exist
with regard to all the facts to which the question of law relates.
[16] On 3 March 2010 the
accused went to the railway station in Bloemfontein. His aim was to
travel by train. As to what his intended
destination was, does not
appear on the record. Whatever his destination was, he apparently
did not have money for the required
train fare or he simply did not
want to pay. On his arrival at the station, he walked passed the
ticket sales office. He proceeded
straight to the platform security
gate. At that check point, only train passengers were allowed to
pass or to go through onto
the platform. There, passengers were
identified by means of their valid train tickets. Nobody without a
valid train ticker was
supposed to go through. The gate was manned
by a security guard. It is of vital importance to constantly keep in
mind the physical
set-up at the particular railway station.
[17] The accused was a
casual train vendor or hawker. He, therefore, probably knew the
physical security set-up and the weaknesses
of the system over there.
Seemingly he knew the security guard who was on duty at the time.
He gave R20,00 to the security guard
to allow him to enter the
platform without a ticket. Although he produced no valid train
ticket, the security guard allowed him
to step onto the platform as
if he was a lawful holder of a valid train ticket. He subsequently
boarded the train as if he was
a
bona fide
passenger. Mr.
A.B. Themba, a ticket examiner, approached him inside the train and
asked to see his ticket. He produced no ticket
since he had none.
He was arrested and later charged with fraud. He reckoned that the
ticket examiner approached him and demanded
to see his ticket,
because he was acting on a tip-off from a certain commuter.
[18] The control
magistrate summarised the facts as follows:
“
2. The facts on which the
accused was convicted were the following:
Accused boarded a train without a
ticket.
He was smuggled into the platform
and ultimately in the train by a security guard after accused paid
him R20.00 (twenty rand)
Later in the train he was confronted
by a Train Guard. Alpheus Boy Themba who demanded a ticket as a
matter of routine inspection.
Accused could not produce one and
was consequently arrested.”
[19] Adv. S. Giorgi, on
the instruction of the Deputy Director of Public Prosecution, made a
similar summary of the material facts:
“
1. The accused was convicted
and sentenced for fraud after boarding a train without a valid
ticket. He was smuggled onto the platform
and onto the train by a
security guard after paying him R20. He was later confronted by a
train guard and could not produce a
valid ticket. He was
consequently arrested.
The question to be answered is
whether the accused was correctly found guilty of fraud.”
[20] The two summaries
are not entirely accurate. To say that the accused was smuggled onto
the platform may create a wrong impression
that he was unwillingly
and unknowingly albeit secretly taken to the platform. However, his
own version was that his landing on
the platform was not singularly
brought about by the security guard. He was not a passive, ignorant
and helpless captive like
a victim of kidnapping smuggled into one
country from another like prohibited goods. On the contrary, his own
explanation in terms
of section 112(1)(b) showed that he was very
instrumental for his presence on the station platform. He was a very
active architect
of the deceptive scheme. The security guard was a
mere facilitator of a deceptive and corruptive design engineered by
the accused
himself. On his own accord, he sneaked into the train.
He was not aided and abetted by the security guard at that point in
time.
[21] The accused bribed a
security guard. His intention by offering the bride was to induce
the security guard to give him unauthorised
access to the platform.
The security guard accepted the bride, opened the gate and allowed
the accused to enter the platform without
being in possession of a
valid train ticket which entitled him to proceed from the security
gate onto the platform. Therefore
the accused and the security guard
colluded to cheat the system. They jointly portrayed the accused as
a
bona fide
train passenger. The security guard pocketed the
money for his own personal benefit. The dominant common intention of
their deceptive
design was to let the accused have a free ride to his
destination. No doubt, such a design was potentially prejudicial to
the
business operations of the South African Railway or Transnet
Limited.
[22] The accused knew, at
the time he walked onto the platform that he was not lawfully
entitled to be there. Notwithstanding his
knowledge that he was
required to have a valid train ticket to travel by train, he boarded
the train without such a ticket. He
was not actually smuggled into
the train by the security guard. He sneaked into the train, to use
his own words. He stealthily
boarded the train because he knew, at
the time he was boarding that he was not supposed to board the train
without a ticket. It
is of vital importance to bear in mind that the
train boarding was preceded by deceitful platform entry. Therefore
the accused’s
move from the gate onto the platform and from the
platform into the train was characterised by an element of cheating.
[23] The control
magistrate had some doubt as to whether the element of
misrepresentation was established by the accused voluntarily
explanation or the judicial questioning. Well, I have no doubt about
it. I get the impression that he was concerned by the fact
that
there was no direct evidence that the accused expressly made a false
representation to the ticket examiner, for instance,
by handing an
expired train ticket to the ticket examiner. The control magistrate
expressed his doubt as follows:
“
It is my understanding of the
above definition that for the crime of fraud to be committed, a
misrepresentation must have been made
and on the strength thereof
somebody must have acted to his/her prejudice. This is not the case
in our matter as the deception
if any, did not cause the train guard
to act to his prejudice.”
I am in respectful
disagreement with the control magistrate as regards the second leg of
his quotation. I shall revert to it to
clarify my critique.
[24] The trial magistrate
on the other hand commented as follows as regards the element of
misrepresentation:
“
The accused was later in the
train approached by Alpheus Boy Themba the train guard who demanded
the train ticket from him for inspection.
The accused could not give the guard
the said ticket notwithstanding the accused
averment that he had
the ticket
and he later admitted that he did not have the ticket
to be on the train. The accused was accordingly arrested and charged
for
fraud.
I am of the view that the accused
misrepresented himself as an authorised passenger on the train to the
guard, knowing so well at
the time that he was not allowed to be on
the train and
further claimed that he was in possession of the
train ticket
, whereas in truth and in fact he did not have such
train ticket. It is for the aforesaid reasons that
I strongly
believe that indeed there was misrepresentation from the accused
directed to the train guard
.”
[25] The trial magistrate
found that the element of misrepresentation was established by virtue
of a false “averment”
and a false “claim” the
accused made to the ticket examiner. The difficulty I had about the
finding was that it was
not supported by the evidence as recorded.
Therefore, there is no objective rationale between the conclusion and
the reasons given
in support thereof.
[26] There is no evidence
on record of the precise details of the encounter between the accused
and the ticket examiner. One thing
certain is that the ticket
examiner approached the accused inside the train and that he wanted
to examine the accused’s ticket.
[27] The response of the
accused, if there was any, was or is not apparent from his
explanation and was apparently not elicited
by the trial magistrate
through judicial questioning. The
lacuna
is lamentable. As a
result thereof there is no reliable indication that, at first, the
accused falsely told the ticket examiner
that he had a valid ticket,
but later changed his tune by admitting that, in fact, and contrary
to his earlier claim, he had no
such ticket.
[28] Both the control
magistrate and the deputy director made the submission that the
element of misrepresentation was lacking;
that there was no evidence
of an explicit false representation by the accused to the ticket
examiner, is indeed correct. To this
aspect I shall return.
[29] The following
passage is instructive:
“
The first requirement for fraud
is that there must be a misrepresentation or, as it has been
expressed, ‘a perversion of the
truth’. The accused must
represent to the complainant that a fact or set of facts exists which
in truth does not exist.
Usually the misrepresentation takes place
by means of spoken or written words,
but it can also take place by
conduct
...”
Joubert:
The Law of
South Africa
, Second Edition, Volume 6, para 308 and the
decisions there cited.
[30] Long
before his encounter with the ticket examiner, the accused had
already behaved and acted in a manner that was deliberately
calculated to actually and not theoretically harm the corporation or
Transnet Limited. It is so that the accused did not produce
any
falsified ticket and falsely represented to the ticket examiner that
such a fake was a valid ticket. Compare
S v JASS
1965 (3) SA 248
(E).
[31]
In
my view the mere fact that there is no sufficient evidence or proof
of
an oral statement by means of which the accused
actually made a false representation to the ticket examiner does not
mean that he
was wrongly charged with fraud. Similarly the mere fact
that there is no evidence that the accused deliberately handed a fake
ticket to the ticket examiner purportedly as a valid ticket, does not
in the circumstances of this case mean that he did not act
in a
fraudulent manner.
[32] It has to be borne
in mind that he did not pay and seemingly did not have the means of
paying. From the moment he set out
to the station, his state of mind
was to make no payment for his conveyance. At the time of boarding
the train in the circumstances
as previously outlined, the accused
implicitly represented, by his conduct, that he had paid and that he
possessed a valid train
ticket. This case is not about a person who
had the means and intention to pay the train fare, but because he was
in a hurry rushed
passed the ticket sales office and the platform
security gate and boarded the train without a valid train ticket.
[33] The physical
structural set-up of the railway station, coupled with the accused’s
intentions and subsequent actions,
justify the conclusion that he
behaved in a fraudulent manner. Whether he said or did anything to
the ticket examiner is, on the
facts, immaterial. His behaviour said
and did it all. Up until he was confronted by the ticket examiner
his fraudulent intent
was still the same. He never changed his mind.
As I see it, his mere presence in the train with a fraudulent state
of mind, amounted
to a false representation by conduct to the ticket
examiner.
[34] In the case of fraud
the law looks at the matter from the deceiver’s point of view
or state of mind –
R v DYONTA AND ANOTHER
1935 AD
52.
If the deceiver candidly intended to defraud, as in this
instance, and his behaviour or actions are consistent with his
pervasive
design, it becomes immaterial whether the false
representation was manifested to a specific representee by way of an
explicit or
implicit distortion of the truth sometimes called
positive misrepresentation or negative misrepresentation
respectively. In giving
the R20,00 to the security guard and in
causing the security gate to be opened, the accused represented to
the world that he had
a valid ticket knowing, at the time, that that
representation was a false representation which he made with the
intention of inducing
the company or Transnet Limited to act upon it
through its employees by conveying him to his destination at its
expense to its
detriment. On the facts it must therefore be accepted
that the conduct of the accused implicitly boiled down to false
representation.
[35] By conduct the
accused projected himself to the public in general and to the ticket
examiner in particular to be a
bona fide
traveller who had
paid the train fare to be where he was inside the train and to be
conveyed as such whereas he knew, at all material
times when he so
tacitly held himself out and so tacitly pretended to the ticket
examiner, that in truth and in fact, he was not
a
bona fide
traveller or lawful holder of a valid ticket. His conduct from the
gate right up to the moment he met the ticket examiner was
undeniably
fraudulent. He was clearly a deceiver with a clearly defined
fraudulent intent and behaviour. The finding of the trial
magistrate
on the point is one which, on review, I cannot hold to be wrong,
albeit on different grounds.
[36] The control
magistrate was also of the view that the element of prejudice was not
established. The learned magistrate commented:
“
However, if it is accepted that
the conduct of accused amounted to a misrepresentation, it would be
my contention that the deception
did not cause or induce the train
guard to act to his prejudice as he only effected an arrest. Arrest
on it won, in my view, can
under no circumstances be equated with
prejudice. It is my submission that prejudice either actual or
potential is lacking.”
[37] The following words
of Wessels CJ in
R v DYONTA AND ANOTHER
,
supra
,
on p. 57 are apposite in this case:
“
The law looks at the matter
from the point of view of the deceiver. If he had the intention to
deceive, it is immaterial whether
there is actual or merely potential
prejudice.”
[38] In
this case there was no actual prejudice. The accused intended to
travel by train by tacitly representing that he had paid
the train
fare. The accused could have achieved his objective had he not been
caught in good time. The gist of his pervasive
design was to
deceive. The law is that if he intended to deceive, as he admittedly
did, it was immaterial whether the ticket examiner
was actually
deceived or whether as a result of such deceptive design, he suffered
actual prejudice or potential prejudice. The
conduct of the accused
was potentially prejudicial to Transnet Limited, the ticket
examiner’s employer. There is not question
about it. The
potential harm was not too remote or fanciful. The mere fact that
the ticket examiner was not personally prejudiced
is no defence and
can never be one. To constitute prejudice the false representation,
be it explicit or implicit, must be such
as to involve some risk of
harm, which is not too remote or fanciful
to
some person not necessarily the person to whom it is directly made
.
R v HEYNE AND OTHERS
1956 (3) SA 604
(A)
at 605 A.
[39] The
author Joubert,
supra
,
at par. 312 writes as follows about the element of prejudice:
“
Actual prejudice is not
required to constitute fraud. It is sufficient if the
misrepresentation is of such a nature that
it
may
cause harm or prejudice
. This risk of prejudice need not be
probable, direct or reasonably certain. It is sufficient if there is
a reasonable possibility
that the misrepresentation may prejudice
some person, who does not necessarily have to be the representee.”
See
also
R v SEABE
1927 AD 28
on 32 – 34;
R v HEYNE AND OTHERS
,
supra
;
R v
FRANKFORT MOTORS (PTY) LTD
1946 OPD
255
on 259 – 260.
[40] In an attempt to
travel by train without a valid ticket just as in an attempt to sell
pieces of ordinary glass as precious
diamonds, there is, in my view,
sufficient potential prejudice to constitute fraud. The control
magistrate and the deputy director
were of the opinion that the
accused’s deception did not induce the ticket examiner to act
to his prejudice. According to
them the ticket examiner did nothing
more than to merely effect an arrest. However, according to the
authoritative sources I have
cited in the aforegoing paragraph, this
view is not a correct legal proposition. Defrauding an employer, in
this instance Spoornet,
may indirectly also cause harm or prejudice
to an employee, in this instance Mr. Themba, the ticket examiner,
depending on the
magnitude, the fraudulent scheme and its adverse
impact on an employer’s business operation. A business
enterprise may be
forced to scale down its economic operations as a
result of such a crippling scheme with serious repercussions for
employees.
[41] The evidence compels
the conclusion that the intention of the accused was fraudulent. He
embarked on a series of acts of deception
designed to defraud the
South African Railways or Spoornet, a division of Transnet Limited.
His aim was not to pay less than the
actual fare for a ticket to his
intended destination, as Ms Giorgi contended. His real intention was
to pay absolutely nothing
to Spoornet. He forked out R20,00 and gave
it to the security guard at the gate and not the cashier in the
ticket sales office.
“I gave
R20.00 to the security officer to enter the platform.”
[42] He deliberately gave
the money to the wrong person and he certainly did not expect that
wrong person to give him any ticket
in return. The purpose of
handing the money was not to buy a ticket at all, but to gain access
to the platform and eventually
to the train. Moreover, it was clear
and obvious that he did not expect the insufficient cash to find its
way into the unintended
coffers of Spoornet. If a whistle blower did
not detect that the accused and the security guard had colluded to
cheat the system,
the prejudice to Spoornet Limited would have been
actual. I find it difficult to accept that in these circumstances it
can be
said that fraud was not proven merely because there was no
proof of any positive false representation and prejudice to the
ticket
examiner.
[43] In the circumstances
I have come to the conclusion that both elements of misrepresentation
and prejudice were established as
the trial magistrate, Mr. M.G.
Nikamanzi, correctly found. It follows therefore that the accused
was correctly charged with fraud
and correctly convicted as charged.
Accordingly, I am of the view that no case has been made out for a
retrial on any other charge.
I would therefore confirm the
conviction.
[44] Accordingly I make
the following order:
44.1 The proceedings in
the court below were in accordance with justice.
44.2 The conviction of
the accused on a charge of fraud and his sentence are confirmed.
______________
M.H. RAMPAI, J
I
concur.
________________
S.P.B. HANCKE, J
/sp