Archary and Another v S [2004] ZAFSHC 172; [2004] ZAFSHC 64 (17 June 2004)

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[2004] ZAFSHC 172
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Archary and Another v S [2004] ZAFSHC 172; [2004] ZAFSHC 64 (17 June 2004)
IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No. A533/2003
In
the matter between:
ROLAND
ARCHARY
First Appellant
RUPERT
REDDI
Second Appellant
and
THE
STATE
Respondent
___________________________________________________________
CORAM:
MALHERBE
J.P.
et
VAN COPPENHAGEN J
___________________________________________________________
HEARD
ON:
24 MAY 2004
___________________________________________________________
JUDGMENT
BY:
VAN COPPENHAGEN J
___________________________________________________________
DELIVERED
ON:
17 JUNE 2004
___________________________________________________________
[1] Appellants were arraigned in the Regional Court for
the Free State with trial centre in Bethlehem on two charges; fraud
and obstructing
or defeating the ends of justice. The appellants
pleaded not guilty to both charges.
They were, however, convicted on the 23rd September 2003
on the charge of fraud only and sentenced to 4 years imprisonment of
which
one year was provisionally suspended.
[2] The appellants appeal against the conviction and the
sentence imposed.
First appellant who was cited as accused no.1 in the
charge sheet abandoned his appeal.
This judgment therefore deals only with the charge on
which the appellants were found guilty and the appeal of second
appellant who
was cited as accused no.2 in the court
a
quo.
[3] In the charge sheet it is alleged that the accused
are guilty of the crime of fraud
“in that upon or about 28 February 2003 to 18 May 2003 and at or
near the Magistrate’s Office, Bethlehem in the district of
Bethlehem
in the Regional Division of the Free State, the accused
persons did unlawfully, falsely and with the intention to defraud
give out
and pretend to Velma Knobel and/or Department of Justice
and/or Moses Shingana and/or The Department of Correctional Services
that
accused number one is indeed accused number two and as such
being the person of Rupert Reddi who was sentenced to 2 years
imprisonment
in terms of section 276(1)(i) of Act 51/1977 in High
Court Case number 2002/120 on 12/12/2002,
and did then and there and by means of the said false pretences
induce the said Velma Knobel and/or Department of Justice and/or
Moses Shingana and/or the Department of Correctional Services to the
prejudice of Velma Knobel and/or Department of Justice and/or
Moses
Shingana and/or the Department of Correctional Services,
to believe that accused number one is indeed accused number two and
as such being the person of Rupert Reddi who was sentenced to
2 years
imprisonment in terms of section 276(1)(i) of Act 51/1977 in High
Court Case number 2002/120 on 12/12/2002,
WHEREAS the accused persons when they gave out as mentioned above,
knew that in truth and in actual fact that accused number one
is not
Rupert Reddi who was sentenced to 2 years imprisonment in terms of
Section 276(1)(i) of act 51 of 1977 in High Court Case
number
2002/120 on 12/12/2002, but he is Roland Archary and thus is not
supposed to serve the sentenced as mentioned above.”
[4] The factual allegations contained in the charge
sheet were to a large extent common cause during the trial, the
inferences to
be drawn therefrom and the legal conclusions, however,
were not.
[5] The evidence by the State that appellant no.1,
accused no.1 in the court
a quo,
turned
him in to serve a sentence which second appellant, accused no.2 in
the court
a quo
, had
to serve after an appeal had failed, and that first appellant was
thereafter taken in by the prison authorities to so serve
the
sentence was common cause and not disputed during the trial.
First appellant testified. Second appellant closed his
case without any evidence being led on his behalf.
[6] First appellant in lengthy and elaborate evidence
explained that he lived in fear of his Nigerian creditors from whom
he obtained
drugs and that when he learnt about the second
appellant’s predicament in that the latter had to undergo
imprisonment as a result
of the dismissal of his appeal he jumped at
the opportunity to seek and obtain asylum in a jail by serving second
appellant’s
sentence.
The Magistrate rejected first appellant’s evidence and
concluded that it was a concocted story.
[7] First appellant’s alleged fear of his Nigerian
creditors presupposes an inability on his part to meet his monetary
obligations.
First appellant testified that he would have been able
to “sort out” matters with his creditors in May 2003 with funds
forthcoming
from his wife’s MVA claim.
If first appellant believed that his debtors could be
pacified in May 2003 with a promise of money forthcoming, no reason
presents
itself why his creditors could not in February 2003 likewise
be pacified.
The magistrate’s rejection of first appellant’s
evidence as not reasonably possibly true because of the various
improbabilities
therein (of which the aforegoing is but one example)
cannot be faulted.
[8] Rejection of first appellant’s evidence
immediately brings to the fore the absolute improbability that first
appellant would
go to jail with nothing to gain.
The magistrate’s
prima facie
inference from the totality of the evidence that first and second
appellants conspired to commit the alleged fraud becomes conclusive
given second appellant’s failure to testify (cf.
S
v LETSAKO AND OTHERS
1964 (4) SA 768
(A) at 776A-D
).
[9] Accepting for argument’s sake that first appellant
did fear his Nigerian creditors, it must also be accepted that second
appellant
was aware of the fraud from the very moment that first
appellant turned himself in (as testified by first appellant) and
that he,
second appellant, albeit reluctantly, initially associated
himself with the fraud. No evidence suggests that second appellant
at
any stage prior to his arrest in May 2003 considered or intended
serving the sentence imposed on him, on the contrary, with everything
to gain second appellant, by his own conduct, i.e. his own silence,
perpetuated the fraud (
cf
S v HELLER AND ANOTHER (2)
1964 (1) SA 524
(W) at 537 – 358;
S
v SHABAN
1965 (4) SA 646
(W) at 649;
S
v HARPER
1981 (2) SA 638
(D)
).
[10] For the aforegoing reasons second appellant’s
appeal against his conviction cannot succeed.
[11] The imposed sentence was neither addressed in the
heads of argument nor faulted during argument on appeal.
Adv. Naidu SC properly conceded that on conviction, if
proper, the imposed sentence was properly called for.
[12] The
following orders to issue:
1. The appellants’ appeal against their convictions
and sentences imposed are dismissed.
2. The convictions and sentences imposed are confirmed.
__________________________
G. VAN COPPENHAGEN, J
I CONCUR
___________________
J.P. MALHERBE J.P.
On
behalf of 2
nd
Appellant:
Adv. H.K. Naidu SC
Instructed
by
Honey
Attorneys
Bloemfontein
On
behalf of Respondent:
Adv. M. Strauss
Instructed
by
Director:
Public Prosecutions
Bloemfontein
/scd