S v Ramos (A83/04) [2004] ZAWCHC 2 (19 January 2004)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2004
>>
[2004] ZAWCHC 2
|

|

S v Ramos (A83/04) [2004] ZAWCHC 2 (19 January 2004)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No: A83/04
In
the matter between:
TONY
CASTILLO RAMOS
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON 19 JANUARY 2005
YEKISO
J et GESS AJ
[1] The appellant was
charged in the magistrate’s court, Goodwood with contravening
section 67(1)(c) of the Gambling and Racing
Law (Western Cape) Law no
4 of 1996. We shall in the course of this judgment refer to this
piece of legislation simply as “the
Gambling Act”.
[2] The allegation by the
State at the time was that during the period 1998 upto and including
15 October 1998, and at or near Paradise
Entertainment Centre,
Voortrekker Road, Goodwood, the appellant wrongfully and
intentionally had in his possession 48 gambling devices
without the
appropriate licence.
[3] Possession of
gambling devices, as defined, without a licence is prohibited in
terms of section 67(1)(c) of the Gambling Act,
unless such possession
is for the sole purpose of demonstration, promotion within the
industry or for such other purpose as the Gambling
Board may
authorise from time to time.
As
is the case with any other legislation, the Gambling Act contains a
number of definitions. The definitions pertinent to these
proceedings are those relating to the terms “
gambling
device
”
and “
slot
machine
”.
[4] The
term “
gambling
device
“
is defined in the Gambling Act as
“any
equipment or thing used, or designed to be used, irrespective of the
actual use to which it is put at any time, directly or
indirectly, in
connection with gambling.”
[5] The
term “
slot
machine
”,
on the other hand, is also defined in a rather lengthy definition,
the material portion thereof being “
…
any mechanical, electrical, video, electronic or other device,
contrivance or machine used in connection with a
gambling
game
which, upon insertion
of money, a token or a similar object therein, or upon payment,
whether directly or indirectly, by or on behalf
of a player of any
consideration whatsoever that is required, is available to be played
or operated and the playing or operation
of which, whether by reason
of the skill of the player or operator or the application of the
element of chance or both, may deliver
to the person playing or
operating the machine cash, tickets, receipts or tokens to be
exchanged for cash or merchandise or
anything
of value whatsoever
, other
than
unredeemable free
games
, or may entitle such
person to receive such cash, tokens, merchandise or
thing
of value
, whether the
pay-off is made automatically from the machine or in any other manner
whatsoever. …”
(Our
emphasis)
It would seem the
reference to the term “anything of value whatsoever” is
deliberately intended to cover a wide range of activities
in which
monetary value is an element.
[6] At a criminal trial
subsequently held on 16 November 1999, the appellant was acquitted of
the charges preferred against him, such
acquittal having been at the
close of the defence case without any evidence having been led. An
application for the acquittal of
the appellant at the close of the
State case was refused, the magistrate probably having been of the
view that the defence had a
case to answer. At the conclusion of the
proceedings no order was made with regard to the disposal of the 48
gambling devices seized
from the appellant by the S A Police
Services.
[7] Prior to the
commencement of trial, the defence served on the State a request for
further particulars in terms of
section 87(1)
of the
Criminal
Procedure Act, 51 of 1977
. The request for further particulars, the
response to which was to become a decisive issue at trial, reads as
follows:
[7.1]
“Does
the State allege that the gambling device which forms the subject of
this charge relate to a game which permitted the person
playing the
game to receive money or property or cheques or credits or tokens to
be exchanged for money or merchandise or anything
of value
whatsoever? If so, the State is required to state exactly what
benefit was received by the person so playing the game.”
[7.2] In response to this
question, the State indicated that it did not allege that the charge
related to the playing of a game as
set out in any of the respects
set out in the request for further particulars which, incidentally,
was couched substantially in line
with the wording of the provision
in the Gambling Act which constitutes the basis of the offence with
which the appellant was charged.
[7.3] The second leg of
the request for further particulars reads as follows:
“
Does
the State allege that the person playing the game received
unredeemable free games.”
[7.4] In response to this
question the State contended that it alleged the person playing the
game received unredeemable free games.
[7.5] The term
“unredeemable free games” is similarly defined in the Act. The
definition of the term which is also rather a
lengthy one and for
purposes of this judgment we propose citing the definition of the
term concerned in full, which reads as follows:
“
Unredeemable
free game
means an
opportunity, won by successfully playing a game, to play a further
game without the payment of any consideration normally
required to
play such game, which cannot be redeemed by, distributed or
transferred to the person who has won such opportunity or
any other
person for any other purpose than to use such opportunity, without
interruption, to continue playing the type of game in
respect of
which the opportunity was won, on the same machine, device or
apparatus as that on which the opportunity was won, and
which
excludes an opportunity which can, in any manner, be converted into
money, property, cheques, credit, prizes, eligibility for
other
prizes or anything of value.”
But what is clear from
the evidence is that a player can interrupt the game whilst the smart
card is still loaded with credits won;
once this happens a player is
issued with handwritten voucher which would record credits not
utilized; over and above the unutilized
credits, a player could
purchase further credits which would then be added on the existing
credits and thereafter continue playing
further games despite such
interruption
Thus,
an “unredeemable free game” would involve an “opportunity to
play a further game, or to continue to play the type of game
in
respect of which the opportunity has been won , without interruption,
on the same machine, device or apparatus as that on which
the
opportunity was won…..”.
[8] The effect of the
responses by the State to the request for further particulars was
such that it placed the possession of the
gambling devices seized
from the appellant outside ambit of the prohibition provided for in
the Gambling Act or the prohibition for
use of such gambling devices
without a licence as required in terms of the Gambling Act. These
responses, in effect, rendered the
charge sheet defective in that it
lacked the essential averment necessary to constitute or sustain an
offence. Despite this apparent
defect the State did not, at any
stage of the proceedings, apply for an amendment of the charge sheet
to bring the particulars so
supplied in conformity with the essential
elements of the charge nor did the defence object to the charge as
not disclosing an offence
as contemplated in
section 85
of the
Criminal Procedure Act.
[9] In
the criminal trial the State led the evidence of an expert in the
design, operation and use of gambling devices in the person
of one
Adriaan Gabriel Swart whose evidence, aptly summarised in the
submissions by
Mr
Jagga,
counsel for the appellant, is to the effect that he is a technical
manager in the employ of Universal Distributors of Nevada SA;
that he
is fully knowledgeable in the operation of the gambling machines
utilized in the gambling industry; that he inspected the
machines
seized from the appellant; that the machines he inspected were
manufactured by his company and that they were manufactured
for
purposes of gambling only; once he had inspected the gambling
machines he had found that they were exclusively designed to be
used
for gambling in the gambling industry and that they were altered in
an attempt to circumvent the provisions of the Gambling
Act. The
evidence by this witness was at variance with the State’s reply to
the appellant’s request for further particulars
supplied to the
defence.
[10] In the course of
cross-examination several statements were put to this witness. These
statements included stickers which it
appears were placed on the
machine devices indicating that the machine devices were for purposes
of entertainment only and that possession
thereof was not for
purposes of gambling. The response by the witness was that the fact
that such stickers could have been placed
on these devices did not
alter the nature of the machine devices, did not influence the
outcome of the game played nor do such stickers
render such machines
less a gambling device as was intended by the manufacturer.
Finally, on a statement put to the witness that
the devices were
incapable of giving any value whatsoever other than an unredeemable
free game, the witness responded that nothing
prevents the person
from redeeming the credits transferred on the smartcard issued to him
and thus giving value to such credit.
Apart from a further
statement put to this witness that the appellant had employed the
services of the electronic engineer to adapt
the machines so as to
comply with the provisions of the Gambling Act, no further statement
was put to this witness nor was his opinion
challenged on basis of an
opinion different from the one expressed by this witness.
These responses were
elicited by questions and statements put to this witness and, as
such, became part of the body of evidence tendered.
[11] Apart from the
evidence of Swart, the State also tendered the evidence of one Rudolf
Jasper Coetzee. Coetzee, so it appears
on basis of evidence
tendered, is a member of the SA Police Service attached to the
Gambling Unit in the Western Cape; at the time
he gave evidence he
was the investigating officer in the matter; he testified that on few
occasions prior to seizure of the gambling
devices he visited the
appellant’s business premises at Paradise Entertainment Centre,
Voortrekker Road, Goodwood.
[12] The evidence by
Coetzee revealed that on payment of cash, the player is issued with a
smart card loaded with credits equivalent
to the amount paid; the
player use this card to play games; once a player wins the game the
smartcard issued is loaded with a credit;
when the player ceases to
play whilst the smart card is still loaded with credit or credits,
the player is issued with a handwritten
voucher which he could once
again use in future to obtain valid credits entitling the player to
play further games. There is no
indication on basis of evidence
whether this card is not transferable or whether credit or credits on
the smart card is not indicative
of value given. But what
clearly emerges from the evidence of Coetzee is that the handwritten
voucher entitles the bearer thereof
to be issued with credits
enabling the player to play further games. If further payment is
made when intending to play further
games same is added to the
existing credit or credits.
[13] What
further emerges from the evidence of Coetzee is that it is possible
for a player to win a game; once a game is won the smartcard
is
loaded with a credit or credits which obviously would afford a player
an opportunity to play a further game or games. It is
not clear on
basis of evidence whether the opportunity to play a further game or
games entails the opportunity to continue playing
the type of game in
respect of which the opportunity was won on the same machine or
device from which the game was won. If this
is not so this would
prima
facie
run
counter to an unredeemable free game as defined. An unredeemable
free game, as defined, involves an opportunity, without interruption,
to continue playing the type of game in respect of which the
opportunity was won.
[14] This witness was not
cross-examined by the defence nor was his evidence relating to the
issue of a smart card, the loading of
credits on the smart card, the
exchange of a smart card for a handwritten voucher and what appears
to be an interruption between
winning the opportunity to play a
further game or games and the actual playing of a further game or
games challenged. Furthermore,
it was not suggested to Coetzee that
the handwritten voucher issued after a player has ceased playing
games is not transferable nor
was it suggested to Coetzee that such a
handwritten voucher is not capable of being discounted for anything
of value.
[15] After Coetzee had
given evidence, the State closed its case whereafter the defence
similarly closed its case without calling
any witness, expert or
otherwise.
Furthermore,
no objection was raised by the defence to the evidence tendered by
both Swart and Coetzee either on the basis that part
of their
evidence was inadmissible or irrelevant to any issue in dispute.
Indeed, much of the evidence of how the gambling devices
operate
emerged in the course of cross-examination of Swart. The evidence
led at trial was thus to become the only body of evidence
on basis of
which the magistrate had to determine the application brought by the
appellant in terms of
section 34
of the
Criminal Procedure Act.
However
, the problem which the prosecution had was that whereas the
particulars supplied by the State failed to sustain a charge, the
evidence
tendered tended to point toward the commission of the very
offence with which the appellant was charged.
[16] We have already
pointed out in paragraph [6] of this judgment that the appellant was
acquitted of the charge against him. However,
the magistrate did
not make an order for the disposal of the goods seized once the
proceedings were concluded as he is required to
do in terms of
section 34(1)
of the
Criminal Procedure Act. But
the magistrate,
and correctly in our view, ordered the acquittal of the appellant
despite the evidence of Swart that the gambling
devices seized from
the appellant were exclusively designed to be used for gambling in
the gambling industry and that the alterations
effected on such
gambling machines were effected purely and solely to circumvent the
provisions of the Gambling Act. The magistrate
correctly held that
the State was bound by the particulars supplied to the defence the
effect of which, as has already been pointed
out, was to exclude the
nature of the devices seized from the ambit of the prohibition in
terms of section 67(1)(c) of the Gambling
Act. The magistrate thus
ordered the acquittal of the appellant despite a finding, based on
the evidence by Swart and Coetzee,
that the devices seized from the
appellant were gambling devices as defined. The magistrate thus
accepted the opinion evidence of
Swart and the unchallenged evidence
of Coetzee.
[17] The magistrate made
the following observation in his judgment in arriving at the
conclusion that the machine seized were gambling
devices as defined
and that the credits won, is a thing of value:
“
So it is with regard
to the explanation in the Act itself quite simple to say that these
credits, or points or tokens or whatever
is placed on that particular
smart card, is definitely a thing of value. So therefore, I will
say through the wording of this particular
Act, and specifically the
wording “gambling game” that it is indeed a gambling device as
defined in the Act…….”
So the magistrate found,
on basis of evidence, despite the response by the prosecution to the
request for further particulars, that
the credits given as a result
of winning a game or games, is a thing of value and that the device
or devices used in playing the
game is a gambling device as defined.
[18] Milton
& Cowling in their work
Statutory
Offences: Volume III (Service Issue 6 of 1994
paragraph E10) make the following observation with regard to the
meaning of the term “gambling game” which was initially defined
in the Gambling Act, 51 of 1965, which has since been repealed but
from which the meaning of the term “gambling game” in the
Western
Cape Gambling Act has substantially been derived:
“
In
order to be a gambling game, a game must be played for a prize in the
form of ‘money, property, cheques,
credit
or anything of value
’.
The Act qualifies this definition of a prize by adding the words
‘other than an opportunity
to play a further game’
.
The import of this qualification is that if the outcome of
successfully playing a gambling game is no more than that the player
obtains the opportunity to play again, then the game is not a
prohibited gambling game and may lawfully be played.”
(Once
again our emphasis)
What the authors
emphasise in this observation is the need for continuity in the
playing of the game after the opportunity has been
won and playing a
further game or games without any form of interruption.
[19] Jones
J, made the following observation in
AK
Entertainment CC v Minister of Justice and Minister of Law &
Order 1994(1) SACR 362(E)
at 368 e-f in determining whether credits given is a thing of value:
“
The opportunity to
play further games which may be won at the applicant’s centre and
the opportunity vouchers which are issued as
credit notes for
accumulated opportunities to play further games which have been won
by the centre’s customers obviously have a
money value. Instead
of having to pay for the opportunity to play games, the winner of the
opportunities or the bearer of an opportunity
voucher may play
further games without having to pay the usual price.”
The authorities cited in
the two preceding paragraphs tend to support the magistrate’s
conclusion that the credit passed on to the
smart card and for which
a handwritten voucher is issued to a player once he ceases to play a
game or games, is a thing of value.
[20] On
18 December 2001 the appellant, ostensibly fortified by his acquittal
of the charge against him, launched an application for
an order for
the release of the gambling machines seized by the police. The
application was heard by the same magistrate who presided
in the
criminal trial. No evidence, either in the form of
viva
voce
evidence
or in the form of affidavit was tendered in the application so that
the proceedings in the hearing of the application were
limited to the
argument presented in court by the parties concerned. After hearing
argument the magistrate dismissed the application,
ostensibly on the
basis that it would not be lawful for the appellant to take
possession of the gambling machines seized. In dismissing
the
application the magistrate had regard to the evidence of Swart and
Coetzee tendered in the criminal trial. We have already
made a
point in paragraph [13] of this judgment that the evidence by Swart
was that the machines seized by the police from the appellant
were
exclusively designed to be used for gambling and that the alterations
thereto were effected in an attempt to circumvent the
prohibition in
terms of the Gambling Act.
[21] It is worth noting
at this stage of this judgment that the record of the proceedings
relating to the application in terms of
section 34(1)
of the
Criminal
Procedure Act appears
to have been lost and could not be found
despite what appears to have been a diligent search therefor. The
magistrate had had to
have the record reconstructed and his finding,
recorded on the reconstructed record, reads as follows:
REASONS FOR FINDING
“
1. On
pages 39 to 42 of the transcription of the proceedings on 16 November
1999 the court gave full reasons for the acquittal and
the finding
that the accused was illegally in possession of the gambling devices.
2. The
application for the return of the gambling devices was dismissed for
the same reasons as set out in the court’s initial judgment.
(
Vide
pages 39 to 42 of the transcription.)”
Thus, in the
reconstructed record, the magistrate reaffirmed his reasons for the
acquittal of the appellant in the earlier criminal
proceedings; that
the equipment seized from the appellant were gambling devices as
defined and his finding that the appellant could
not lawfully possess
the gambling devices seized.
SECTION 34
OF THE
CRIMINAL PROCEDURE ACT
[22
] The relevant section
of the Criminal procedure Act, in terms of which the appellant
applied for an order for the release of the
gambling machines seized,
reads as follows under the heading “disposal of article after
commencement of criminal proceedings”:
“
(1)
The judge or judicial officer presiding at criminal proceedings
shall at the conclusion of such proceedings, but subject to the
provisions of this Act or any other law under which any matter shall
or may be forfeited, make an order that any article referred
to in
section 33 –
(a) be returned to the
person from whom it was seized, if such person
may
lawfully possess such article; or
(b) if
such person is not entitled to the article or cannot lawfully
possess
the article, be returned to any other person entitled thereto, if
such person may lawfully possess the article; or
(c)
if no person is entitled to the article or if no person may lawfully
possess the article or, if the person who is entitled
thereto cannot
be traced or is unknown, be forfeited to the State.
(2) The court may, for
the purpose of an order under subsection (1), hear such additional
evidence, whether by affidavit or orally,
as it may deem fit.
(3) If
the judge or judicial officer concerned does not, at the conclusion
of the relevant proceedings, make an order under subsection
(1),
such judge or judicial officer or, if he is not available, any other
judge or judicial officer of the court in question, may
at any time
after the conclusion of the proceedings make any such order, and for
that purpose hear such additional evidence, whether
by affidavit or
orally, as may deem fit.
(4) An
order made under subsection (1) or (3) may be suspended pending any
appeal or review.“
The
appeal or review referred to in subsection (4) refers to the
automatic review or appeal after conviction and not an appeal or
review of the order for the disposal of the goods itself, the
difference in the proceedings in the court
a
quo
being
that the appellant was acquitted and not convicted as contemplated in
subsection (4).
[23] The
provisions of
section 34
of the
Criminal Procedure Act are
clearly
peremptory. The judicial officer, based on evidence led at trial,
will be aware of the goods seized which will have to be
disposed of
in terms of any of the three basis identified in
section 34.
Thus,
the presiding judicial officer must,
suo
motu,
make
an order in terms of
section 34
disposing of the goods seized in the
absence of any other order declaring the goods forfeited to the State
or which were not disposed
of in terms of any other provision of the
Criminal Procedure Act. To
the extent that the magistrate omitted
to make an order disposing of the items seized at the conclusion of
the criminal proceedings,
such omission could well amount to a
misdirection. But the omission by the magistrate to make the
appropriate order at the conclusion
of the proceedings could well
have been occasioned, we would imagine, by failure by either of the
parties to seek an order for the
disposal of the goods. But the
section clearly envisages the judicial officer playing a proactive
role to ascertain the status
of the goods seized with a view to
making an appropriate disposal order.
[24]
Section
34
contemplates three scenarios in regard to the disposal of the
goods seized, these being: (1) the release of the goods seized to the
person from whom such goods were seized in circumstances where such a
person may lawfully possess such goods; (2) the release of
goods to
the person who may lawfully possess such goods, other than the person
from whom such goods were seized and (3) the order
declaring that
such goods be forfeited to the state in circumstances where no person
who may lawfully possess such goods cannot be
traced or is unknown.
(See Du Toit
et
al
:
Commentary
on the
Criminal Procedure Act:
Chapter
2 pp 12-13)
[25]
Mr
Jagga
,
both in argument before the magistrate in the application in terms of
section 34
and on appeal, relied heavily on the particulars supplied
by the State. His argument is along the lines that since the State,
and
accordingly also the magistrate, so his argument goes, is bound
by the particulars supplied by the State, it follows that for
purposes
of
section 34
the State and the magistrate are still bound
by the particulars and, in view thereof, the magistrate ought to have
found that the
devices are not gambling devices, as defined.
Mr
Jagga
further argued that the magistrate erred in taking into account that
part of the evidence tendered by the State which is at variance
with
the particulars supplied in dismissing the appellant’s application.
In our view there is no substance in this argument.
We hold this
view for the reasons which will follow later in this judgment.
[26]
Section 34
contemplates the disposal of the goods seized at the conclusion of
the proceedings. The conviction of the accused is not necessarily
a
jurisdictional factor for the disposal order contemplated. In the
instance of this matter the appellant was acquitted of charges
against him. The appellant was acquitted because the magistrate
correctly considered that the State was bound by the particulars
supplied to the defence. The acquittal was not based on a finding
on the nature of the devices as the appellant seeks to contend
in his
submissions. The fact that the accused, (the appellant in the
instance of this matter) was acquitted of the charge against
him,
does not place the goods seized outside the sphere of application of
section 34.
[27] The
proceedings relating to the disposal of the goods in terms of
section
34
is an entirely separate process from the criminal proceedings
which precede the contemplated disposal order. A judge or
magistrate,
other than the one who presided in the trial, may make
such a disposal order. In doing so, the judge or magistrate making
such
an order may take into account evidence tendered during trial or
may hear new evidence, either in the form of
viva
voce
evidence or evidence in the form of an affidavit.
[28] In
considering the present matter, it appears that the following
questions require to be answered:
[28.1] The
status of a charge sheet or further particulars furnished in the
criminal matter, and the extent to which, and circumstances
in
which, the State may be said to be bound thereby;
[28.2] Which
party bears the onus of proving (or disproving), in proceedings in
terms of
section 34
of the
Criminal Procedure Act, whether
the
person may lawfully possess a seized article and is therefore
entitled to its return; and
[28.3] Whether
the Appellant was entitled the return of the devices in the present
matter, or whether they were correctly forfeited
to the State.
THE
FURTHER PARTICULARS
[29] It
was argued on behalf of the Appellant that the State, through the
furnishing of the further particulars to the charge sheet,
“
admitted
” that
the machines were not slot machines (or gambling machines) and that
they did not entitle a player thereof to “
anything
other than unredeemable free games
”. In
support of this submission various authorities were relied upon,
including
State v Nathaniel and Others
1987
(2) SA 225
(SWA)
at 235;
State
v Mandela and Another
1974 (4) SA 878
(A)
at
882;
Rex v Wilken
1945 EDL 246
253
;
Rex v Verity-Amm
1934 TPD 416
at
422;
R v Els
1949 (3)
SA 89
(W)
and
State v
Rosenthal
1980 (1) SA 65
(A)
at 89 F. On
the basis of these authorities, so it was argued, the evidence led
at the trial relating to the actual nature of the
devices (being
inconsistent with the particulars) was to be disregarded by the
Presiding Officer who considered how to thereafter
deal with the
items in terms of
section 34.
[30] It
was argued on behalf of the State that the Magistrate was entitled
to have regard, in the
section 34
proceedings, to the evidence
tendered at the trial with regard to the nature of the devices (and
in respect of which no objection
was made at the time),
notwithstanding the statements to the contrary in the further
particulars to the charge sheet.
[31] Particulars
to a charge sheet are furnished in terms of
section 87
of the
Criminal Procedure Act. Du
Toit
et al
in
Commentary on the
Criminal Procedure Act
discuss
Particulars at pages 14-25 to 14-27 and describe the purpose
thereof as being to inform the accused of the State’s case against
him. Once such particulars have been furnished, the charge is
amended (
State v Cooper and Others
1976 (2)
SA 875
(T)
at 885 H). Where, however, the
further particulars are not consistent with the allegations in the
charge, the charge remains unaltered
(
Rex v
Van Zyl
1958 (2) SA 190
(O)
at 196 H to 194.
It is also significant that the State may apply for an amendment of
the particulars to the indictment which were
previously furnished to
the accused (see
State v Ndevu and Others
1991 (1) SACR 416
(E)
at 419 where the
relevant authorities are also set out). A consideration of the
authorities referred to by Du Toit
et al
in
Commentary on the
Criminal Procedure Act
>,
commencing with the more recent cases cited, reveals the manner in
which particulars have been dealt with:
[31.1] In
State v Mandela and Another 1974 (4) SA 878
(A)
at 882 E-F the Court stated (in
circumstances where the particulars were entirely at variance with
the evidence):
“
The
State, being bound by the particulars alleged by it (see R v Bruins
1944 AD 131 at p. 165), and having failed to prove its case
as
alleged, the convictions cannot stand because of the potential
prejudice caused to the appellants by the defective form of the
charge.”
[31.2] In
State v Nathaniel and Others 1987 (2) SA
225(SWA)
at 235 D-E the Court stated:
“
The
law is that, where the State provides further particulars, it nails
its colours to that mast and at this stage of the proceedings
is
bound by such particulars.”
[31.3] In
Rex v Verity-Amm 1934 TPD 416 at p. 422
(referred to by the Court in
State v
Nathaniel
for the aforegoing proposition),
the Court held that the particulars, once given:
“…
f
orm
part of the summons or charge, and the trial then proceeds in all
respects as if the indictment, summons or charge had been
amended in
conformity with such particulars. The prosecution is then bound by
such particulars, and is not entitled to rely on
and prove
particular acts of recklessness or negligence other than those of
which particulars have been supplied, without applying
for an
amendment of the indictment, summons or charge (see Rex v Kroukamp:
1927 TPD 412).”
[31.4] In
Rex v Anthony 1938 TPD 602
at
604 (another case relied upon by the Court in
State
v Nathaniel
) it was pointed out that the
purpose of particulars was to advise the accused of the particular
nature of the offence with which
he was charged and the case he had
to meet, and therefore that the State must, in seeking a conviction,
prove the charge as particularised
and not some other form of
conduct;
[31.5 In
Rex v Wilken 1945 EDL 246
at p. 253 the Court repeated the brief statement that, on the
authorities:
“…
i
t
is quite plain that the Crown is bound by the particulars given,
which … are regarded as if inserted in the charge, and if these
particulars are not proved the accused is entitled to an acquittal …
here the failure to keep a proper lookout was particularised,
and it
formed part of the charge.”
[31.6] In
Rex v Els 1949 (3) SA 849 (W)
the Court dealt with an objection to evidence as to what a stolen
package had in fact contained, where the State had stated, in
particulars, that it had no knowledge of the content. Unlike in the
instant matter, counsel objected to the presentation of the
evidence
before it was led and the objection was upheld on the ground that:
“
The
giving of that evidence, besides being in the form of the indictment
irrelevant, would be calculated to prejudice the accused
in his
defence.”
[31.7]
It
is of note that in the present matter no objection was raised to the
leading of the evidence regarding the nature of the devices.

Furthermore, the ground for excluding the evidence in
Rex
v Els
was not because the State was “
bound
”
by some form of admission which the accused was entitled to take
advantage of but rather that it was irrelevant to the indictment
as
it stood, and would occasion him prejudice in his defence; and
[31.8]
Finally, in
State v Rosenthal
1980 (1) SA 65 (A)
at 89 E-G, the Appeal
Court held that (particularly in that context of a complex fraud
trial), the State should ordinarily adhere
strictly to the case of
fraud as pleaded and not be allowed to depart from it and set up a
different case should the accused be
prejudiced thereby.
[32] In
conclusion it appears that, although the further particulars form
part of the charge against the accused, there is no authority
for
the proposition that further particulars amount to an “
admission
”
by the State in favour of the accused, which has the effect of
causing unlawful goods to be deemed to be something otherwise,
or
which binds the State for purposes other than the criminal
proceedings relating to the charge itself. This is borne out by
the
fact that the particulars can be amended during the course of the
trial (subject to the prejudice of the accused). Their purpose
is
to supplement the charge and inform the accused of the case which
the State requires him to meet. The enquiry under
section 34
is in
any event a separate enquiry to the criminal trial, where further
evidence may be led. Furthermore, anomalies would result
if the
State was bound in respect of an accused that the articles seized
were of one nature or quality as set out in the particulars,
but in
a possible application by a third party (other than the accused)
that the goods should be returned to him in terms of
section
34(1)(b)
, such enquiry in respect of that person would proceed on
the basis that the goods are of the actual nature.
ONUS
[33] There
further appears to be some uncertainty as to which party bears the
onus
in the
section
34
proceedings. Counsel for the State submitted (on the authority
of
Minister van Wet en Orde
en ‘n Ander v Datnis Motors (Midlands)
(Edms) Bpk
1989 (1) SA 926
(A) at 935
and
Erasmus en ‘n Ander v Minister van Wet en
Orde
1991 (1) SA 453
(O)
at 455, that the
onus
is on a State to
prove, on a balance of probabilities, that the person from whom the
objects were seized was unlawfully in possession
thereof, and
therefore not entitled to their return. Counsel for the Appellant
in his Heads of Argument submitted that for an
Appellant to succeed
with an application in terms of
section 34
he has, on a balance of
probabilities, to show that he may lawfully possess such articles.
He cited
State v Campbell en ‘n Andere
1985
(2) SA 612
(SWA)
as authority for this
proposition. Of the textbook writers, Hiemstra (
Hiemstra
Suid Afrikaanse Strafproses
, Sixth Edition,
page 58) supports the view that the
onus
is on the State to prove that the Appellant is not entitled to the
return of the goods and relies upon such authority such as
Meyers
and Another v Triegaardt N.O.
1948 (4) SA 208
(W)
and
Minister van Wet en Orde v Datnis
(supra)
. Du Toit
et
al
at page 2-13 (para 5) suggest that:
“
The
onus will be on a person who applies for an Order under
section 34
,
although there is no onus on an owner of an article to place
evidence of his innocence before the Court where there is no
suggestion
to the contrary by the State (
State
v Mbeta and Another (supra)
;
see also
Meyers v
Triegaardt N.O
1948 (4) SA 208
(W
).”
[34] A
review of the relevant authorities makes the position more clear:
[34.1] In
State v Campbell en ‘n Ander
1985 (2) SA
612
(SWA)
at 619 E-G, the Court (in relation
to money) held that the State failed to prove that the Appellant was
not entitled to the money,
and same had to be returned to him;
[34.2]
Meyers
v Triegaardt NO 1948(4)(SA) 208(W)
, which
followed
Rex v Tutu
1943 EDL 49
,
was decided under the differently worded
section 366(1)
of the then
Criminal Procedure Code, which provided that the property was to be
returned to the person from whose possession it
was obtained “unless
it was proved during the trial that he was not entitled to such
property”. In terms of section 366(1)
the Court held that the
onus
was on the
person holding the property which had been taken for the purposes of
trial to show that the person from whose possession
it was taken was
not entitled to have it back. The above quoted phrase is not,
however, included in
section 34(1)
of the
Criminal Procedure Act, 51
of 1977
which simply states that the goods are to be returned to the
person “
if such person may lawfully possess
same
”.
[34.3]
State
v Mbeta and Another
1984 (3) SA 279
(Ck)
is
to be distinguished because it dealt with a vehicle allegedly used
for the conveyance of dagga, and the forfeiture clauses contained
in
the Abuse of the Dependence-Producing Substances and Rehabilitation
Centres Act, Act 41 of 1971 were applicable. Such a vehicle
was
normally to be forfeit to the State. An owner could however recover
such a vehicle, which would not then be subject to forfeiture,
in
circumstances of section 8(2) of that Act if “
it
is proved
” that the owner had no knowledge
that the vehicle was being so used. In the context of section 8(2)
the Court stated at 282
C that “
the last mentioned
requirement of SS(2) cannot place, in the absence of the slightest
suggestion to the contrary by the State, the
onus on the owner to
place evidence before the Court to establish that requirement”.
[35] In
the other relevant cases the onus is similarly placed on the State:
[35.1] In
Minister van Wet en Orde en ‘n Ander v
Datnis Motors (Midlands) (Edms) Bpk
1989 (1) SA 926
(A)
(with regard to
section 31(1)
of the
Criminal Procedure Act, the
Court held at 935 F-G that:
“
Dit
kom my daarom voor dat die Wetgewer beoog het dat die Staat moet
bewys dat die persoon wat voor die beslaglegging in ongestoorde
besit van die voorwerp was vanweë die kwalifikasie nie op
teruglewering daarvan geregtig is nie.”
[35.2]
This
decision was followed in
Erasmus en ‘n
Andere v Minister van Wet en Orde
1991 (1) SA 453
(O)
at
455 G-H and in
Dookie v Minister of Law and
Order and Others 1991 (2) SA SACR 153 (B)
at
156 j to 157 b.
[36] The
relevant parts of the wording of
section 31(1)(a)
of the
Criminal
Procedure Act are
in the same terms as those contained in
section
34(1)(a).
In the circumstances, we are of the view that
section
34(1)(a)
of the
Criminal Procedure Act is
also to be interpreted to
the effect that the Legislature intended that the State bear the
onus
, on a balance of
probabilities, of showing that the person from whom the item was
seized would not be entitled to lawfully possess
such article.
[37] In
conclusion, care must be taken in considering each individual
instance where application is made in terms of section 34
of the
Act, in particular where other relevant statutes such as the Abuse
of Dependence Producing Substances and Rehabilitation
Centres Act,
Act 41 of 1971 (see
State v Mbeta en ‘n
Andere
1984 (3) SA 279
(Ck)
and the Customs
and Excise Act, Act 91 of 1964 (see
Fazenda
N.O v Commissioner of Customs and Excise
1999 (3) SA 452
(T)
)
are also applicable. In such instances provisions of that
legislation specifically place the
onus
on the Applicant (e.g. to the effect that he had no knowledge of his
vehicle being used for the conveyance of an unlawful substance)
which must be acquitted by the Applicant prior to the seized goods
being returned to him.
THE
QUESTION OF PREJUDICE
[38] Subsequent
to the acquittal of the Appellant, he later applied for the return
of the seized items and submitted Heads of Argument
in support
thereof (record page 50 to 70). A further issue that may, in a case
such as the present, require some consideration
is whether in these
circumstances the Appellant was possibly prejudiced in the section
34 proceedings because he might allege that
he did not have the
opportunity to lead evidence in regard to the nature of the devices,
or was unaware of the fact that the State
would rely upon the
evidence of the two expert witnesses at the trial. It does not,
however, appear that in the present instance
there is any such
prejudice, certain of the relevant considerations relied upon in
reaching this conclusion being:
[38.1] The
Appellant was apparently aware, from the commencement of the trial
itself, that the State had made a grave error in
the furnishing of
further particulars. This notwithstanding, he did not choose
(although represented by counsel and an attorney)
to object to the
charge sheet as not disclosing an offence, nor object (as was the
case in
Rex v Els
(
supra
)) to the
leading of that evidence in respect of matters contrary to the
further particulars. Had this been done, the State would
in all
probability have launched an application to amend the particulars so
that the charge disclosed an offence;
[38.2] The
Appellant was no doubt well aware of the error on the part of the
prosecutor, and elected not to give evidence and was
acquitted;
[38.3] The
Magistrate made it clear in his judgment that he considered the
seized devices to be unlawful gambling machines –
and so found –
but was unable to convict the Appellant because of the particulars
to the contrary, which rendered the charge
not to disclose an
offence at all. His dissatisfaction with the nature of the
particulars furnished is clear from his judgment;
[38.4] The
Appellant was entitled, in the section 34 proceedings, in terms of
section 34(2)
of the
Criminal Procedure Act, to
present further
evidence, either orally or on Affidavit. He however elected not to
do so; and
[38.5] Finally,
it is clear that the Appellant was aware, when he launched the
application in terms of
section 34
, that the State would in fact
contend that it was not bound by the trial particulars in the
section 34
proceedings, and that it would seek to rely upon the
expert evidence led at the trial to the effect that the machines
were gambling
devices which the Appellant was not lawfully entitled
to possess. The fact that the Appellant’s counsel was well aware
of this
risk, but chose not to take the precaution of presenting
evidence (but rather to argue the matter on the law) is apparent
from
Appellant’s Heads of Argument.
[39] In
conclusion, we are unable to find in this particular matter that the
State’s reliance, during the
section 34
proceedings, upon the
evidence of the experts, either took the Appellant by surprise or
caused him any prejudice.
CONCLUSION
[40] In
view of the above, and our finding that the State was not bound in
the
section 34
proceedings by the particulars, and accordingly also
that evidence of the two experts was admissible in
section 34
proceedings, the further question remains whether the State
acquitted itself of the
onus
of proving, on a balance of probabilities, that the Appellant was
not entitled to lawfully possess the devices. If it failed to
acquit itself of the
onus
,
the Appellant is entitled to their return.
[41] In
this matter, the only evidence available in the
section 34
proceedings was the evidence of the two technical experts called by
the State. Their evidence, for which they gave full reasons
(and in
respect of which they were cross-examined on behalf of the
Appellant) was that the machines were unlawful gambling devices
and
that the Smart Card on which the “
free
games
” or “
points
”
were recorded, was capable of being exchanged for value. This
therefore brought the machines within the ambit of the prohibition
contained in the Gambling Act. No evidence at all was presented by
the Appellant.
[42] In
the circumstances, we find that the State acquitted itself of the
onus
of proving, on a
balance of probabilities, that the Appellant (who at no stage
alleged that he had any permit or licence to possess
any form of
gambling machine) might not lawfully possess the devices, and same
were therefore correctly forfeited to the State.
[43] And
then there is a matter of the appealability or otherwise of the order
by the magistrate in refusing to order the release
of the gambling
machines to the appellant.
Mr
Badenhorst
,
counsel for the State, contends that the order by the magistrate is
not appealable, and that the procedure which the appellant ought
to
have followed is that by way of review instead of the procedure by
way of appeal citing such authority as
S
v Ngubenkomo 1968(2) SA 109(E)
and Hiemstra,
supra,
at
p160. Whilst we note the authorities relied upon by
Mr
Badenhorst,
however,
we have grave doubts about the merits of this contention in the light
of the provisions of section 34 and 35(3)(o) of the
Constitution of
the Republic of South Africa, 1996. As to whether the proceedings
ought to have been brought by way of review,
in any event, the court
has powers in terms of section 173 of the Constitution to regulate
its process, taking into account the interests
of justice. And
whilst we are mindfuI of the Court’s inherent review jurisdiction,
we have nonetheless considered the merits
of this appeal in the
interest of justice without necessarily expressing any view on
Mr
Badenhorst’s
submission
in this regard.
[44] In view of what we
have said in the preceding paragraphs, it is our view that the
appellant’s appeal cannot succeed.
[45] In the result, we
make the following order:
[45.1] The appeal is
dismissed
[45.2] The gambling
machines seized by the SA Police Service from the appellant are
hereby declared forfeited to the State.
______________________
N
J YEKISO, J
____________________
D
W GESS, AJ