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1989
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[1989] ZASCA 124
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S v Longdistance (Natal) (Pty) Ltd. and Others (125/89) [1989] ZASCA 124; [1990] 1 All SA 390 (A) (28 September 1989)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
LONGDISTANCE (NATAL) (PTY) LIMITED
First
appellant
LONGDISTANCE (PTY) LTD
Second appellant
LORRAINE
TRUCK HIRE (PTY) LIMITED
Third appellant
MARIUS HENDRIK OCKERT ELS
Fourth appellant
and
THE STATE
Respondent
Coram
: BOTHA, HEFER, KUMLEBEN JJ A et NICHOLAS et
FRIEDMAN A JJ A
Heard
: 29 August 1989
Delivered
: 28 September 1989
JUDGMENT NICHOLAS
A J A
/On
2
On 26 July 1985 two heavy vehicles, each made up of a
mechanical horse and semitrailer, and each carrying 2000 12,5 kg pockets of
refined sugar, were travelling on the public road between Waterval-Boven and
Nelspruit. One was stopped by Detective-Sergeant Steenkamp
of the South African
Police near Ngodwana, and the other by Detective-Sergeant Brooderyk near
Nelspruit. In response to a request
by the police each of the drivers (Alfred
Kabusa and Lulamile Qomoyi respectively) produced a permit issued under the Road
Transportation
Act 74 of 1977 ("the Act").
Arising out of these incidents,
four accused appeared before the Nelspruit magistrate's court charged on two
counts under s.31 of
the Act (unlawful road transportation). They were:
Accused No 1, Longdistance (Natal) (Pty) Ltd;
Accused No 2, Longdistance (Pty) Ltd;
3
Accused No 3, Lorraine Truck Hire (Pty) Ltd; and
Accused No
4, Marius Hendrik Ockert Els. Kabusa and Qomoyi were originally charged as
accused Nos 5 and 6 but the charges against
them were withdrawn. It was alleged
in the main counts that the accused wrongfully and unlawfully undertook road
transportation,
otherwise than under the authority of a permit authorizing such
road transportation, in contravention of s. 31(1)(a) of the Act;
and in the
alternative counts that the accused, being the holder of a permit, undertook
road transportation, otherwise than in accordance
with the provisions of such
permit, in contravention of s.3l(1)(b) of the Act. The first (Ngodwana) count
related to the motor vehicle
consisting of mechanical horse No. ND 329666 and
semitrailer No. ND 90044; and the second (Nelspruit) count related to the motor
vehicle
4
consisting of mechanical horse No. ND 324908 and semitrailer
No. ND 312230.
All the accused pleaded not guilty. They were found guilty on
the two main counts. Both counts were treated as one for purposes of
sentence.
Accused Nos.l and 3 were each sentenced to a fine of R2000-00; accused No. 2 was
sentenced to a fine of R4000-00; and accused
No.4 was sentenced to a fine of
R2000-00 or 12 months' imprisonment. In addition the magistrate made a
declaration under s.36(1)
of the Act that the motor vehicles used in the
transportation be forfeited to the State.
An appeal against convictions and
sentences to the Transvaal Provincial Division was dismissed by MYBURGH A J with
whom HUMAN A J
concurred. Leave having been granted, the appellants now appeal
to this court. (For the sake of convenience I shall continue to refer
to the
appellants
5
as the "accused".)
At the end of the trial most of the facts
were either common cause as a result of formal admissions and statements made by
the accused
in terms of
s.115
of the
Criminal Procedure Act
51 of 1977
,
or were not in dispute.
Accused Nos 1, 2 and 3 were at all material times
companies incorporated and registered under the
Companies Act
61 of 1973,
and were thus "corporate bodies" as referred to in
s.332
of the
Criminal
Procedure Act
>. They carried on business as "carriers" as defined in s. 1 of
the Act. No. 4 accused is a director of accused Nos. 1, 2 and 3 and
he was duly
authorized to represent them. The three corporate accused are members of a group
of companies, in which accused No. 2
is the holding company and accused Nos.l
and 3 are subsidiaries. No. 4 and his brother, Christo Els, are the sole
directors of each
of the companies in the group
6
and they are de
facto
the managers thereof.
The transportation of the sugar which was conveyed in the two vehicles was
arranged with No. 4 accused by a Johannesburg broker named
Export Import
Trading. It was to be transported from Huletts Refinery in Durban and delivered
to one Mr Timmermans, who carried on
business as a merchant dealing in
foodstuffs under the style of Lowveld Food Distributors at Witrivier. Timmermans
paid about R1750
per load for the transportation. It was his intention to resell
the sugar to clients in Mozambique.
The defence case was that the transport was under the authority of two
permits issued to No. 1 accused: one (0P 282006, Ex "D") authorized
transportation, as set out in Annexure "A" thereto, by semitrailer ND 90044: the
other (OP 282017, Ex "E") authorized transportation,
as set
7
out in Annexure "A", by semitrailer ND 312230.
The defence
admitted that No. 1 accused was the owner of semitrailer ND 90044; and that No.
2 accused was the owner of the two mechanical
horses ND 329666 and ND 324908.
There was no admission in regard to the ownership of semitrailer ND 312230.
A
number of disparate points arose in the course of the argument of the appeal.
They will be dealt with in turn.
Participation of No. 3 accused
.
The
point was taken that there was no admissible evidence connecting this accused
with either of the counts: the only evidence against
him was contained in an
affidavit (Ex "H"), which showed that No. 3 was the owner of semitrailer ND
312230.
8
It was submitted that this was inadmissible hearsay. It appears
from the record, however, that at the end of the State case, the prosecution
requested that Ex "H" be handed in as proof of ownership and counsel for the
accused had no objection. When this court put it to
counsel that the point had
not been mentioned as one of the grounds of the appeal and that consequently the
magistrate had had no
opportunity of dealing with it, the point was, properly,
abandoned.
9
Mens Rea
.
The main ground of appeal was that the State
did not discharge the onus of
proving that the accused had
the necessary
mens rea
.
In their statements made under
s. 115
of the
Criminal Procedure
Act
>, the accused said in dealing
with count 1 that
"... at all relevant times (they) honestly reasonably and without any
negligence (Culpa) on their part believed by reason of legal
advice which had
been obtained that the conveyance of the sugar, the subject of the charge, was
authorised by and in terms of permit
OP 282006 more particularly clause (C) of
the aforesaid permit." There was a similar statement made by the accused in
dealing
with count 2, except that the reference was to permit OP
282017.
10
Under permit 282006 authority was granted to
Longdistance Natal (Pty) Ltd (i.e. No. 1 accused) in respect of semitrailer ND
90044
"vir die vervoer soos uiteengesit in die aangehegte bylaé No. A."
Similar authority was granted under permit 282017 to Longdistance
(Natal)
(Pty)Ltd in respect of semitrailer ND 312230. Paragraph C was common to the
respective annexures. It read:
"C. Gereedskap en toerusting asook steierwerk en bekisting in gebruik vanaf
een perseel na 'n ander en nie vir herverkoop nie. Binne
die Republiek van
Suid-Afrika."
The legal advice referred to had been obtained by No. 4 accused from a Mr
Martin Stephens, who described himself as an advocate. Although
he had been
admitted and was previously in practice as an advocate, he had for a number of
years
11
not practised as such, but acted as a consultant in road transportation
matters. No. 4 accused said in his evidence that although
he personally had been
engaged in road transportation since 1975, and had had much to do with permits
issued under the Act, law was
not his field. He accordingly used to seek legal
advice from Stephens, whom his companies had retained as an adviser, and in whom
he had great confidence.
In January/February 1985 he sought an opinion from
Stephens generally as to the ambit of paragraph C, and specifically in regard to
the goods, specified in a list furnished by him, which he was interested in
transporting. Stephens furnished an opinion which was
put in as Ex "J" before
the trial court.
In Ex "J" Stephens referred to the four items set out in paragraph C, namely,
gereedskap
,
toerusting
12
steierwerk
, and
bekisting
. He said that the words
"in
gebruik vanaf een perseel na 'n ander en nie vir herverkoop
nie"
qualified only
bekisting
, and not the other items.
He referred to a
definition of
equipment
(
toerusting
) in
Webster's Third New
International Dictionary which had been
quoted with approval by ROSE-INNES J
in
Trencor Services
(Pty) Ltd v Muller t/a S A Trucking
1983 (4) SA 893, (C)
at 897 F
namely,
"all things used in a given work or useful
in effecting a given end
Equipment usually covers everything except personnel needed for efficient
operation or service."
On the basis of this definition Stephens concluded that
" this authority (i.e. para C) grants
the consultant an extremely wide scope
in the conveyance of Goods and it virtually
13
amounts to an authority to convey all classes of Goods, except items required
merely for household purposes when it is being taken
to a household." Referring
to No. 4's list of goods, Stephens said that "the Goods included in the annexed
list are Goods of which
I am of the opinion may be conveyed in terms of the
authority covered by this Opinion." The list included a wide variety of
articles,
including tinned and bottled food, prepared foodstuffs, medicines,
cosmetics and wine, beer and spirits.
No. 4 said in his evidence that when he
was approached to transport a consignment of sugar, he specifically asked
Stephens whether
refined sugar fell under "prepared foodstuffs". Stephens told
him that this was definitely so.
14
The reasoning in Ex J is a travesty, and the conclusion palpably absurd.
There is no warrant for regarding the words "in gebruik vanaf
een perseel na 'n
ander en nie vir herverkoop nie" as qualifying only
bekistinq
. That can
be justified neither by grammar nor by logic. In using Webster's definition of
equipment, Stephens ignored the the qualifying
words "used in a given work or
useful in effecting a given end". And how items such as tinned and bottled food,
prepared foodstuffs,
medicines, cosmetics, and wine, beer and spirits could be
regarded as
equipment
, even in the widest meaning of the word, is beyond
comprehension.
In the judgment of the Transvaal Provincial Division MYBURGH A
J said that in his view the tránsportation of sugar which was
to be
resold was so far removed from what was authorized in paragraph C of the permit
that neither No. 4 nor Stephens could really
have believed that it was
possible.
15
He considered their evidence in this regard to be unacceptable. I am inclined
to agree.
It is, however, unnecessary to go so far.
Mens rea
in the
form of
culpa
is sufficient for convictions under paras (a) or (b) of s.
31(1) of the Act. No. 4 and the corporate accused were engaged in the
specialised field of road transportation, which is strictly controlled by an Act
of Parliament and regulations made thereunder. It
was plainly their duty to take
all reasonable care to acquaint themselves with what they were permitted and
what they were not permitted
to do. (Cf
S v De Blom
1977(3) SA 513 (A) at
532 G).
The defence of the accused was that they did not know that the transportation
of sugar was not authorized by the permits. No. 4 said
that he took legal
16
opinion from an experienced transport consultant, whose advice
he had followed with success for a number of years.
This evidence
notwithstanding, it is clear in my opinion that No 4 did not take the necessary
care to inform himself of what he could
do under the permits concerned.
Legal advice has no magic which justifies the recipient in jettisoning his
common sense. Stephens's advice was so bizarre that it
must have given pause to
even the most sanguine of carriers, and caused him to seek advice from another
source whether, under permits
for the transportation of
gereedskap
,
toerusting
,
steierwerk
and
bekisting
, he had
carte
blanche
to convey all classes of goods, except only items required for
household purposes when being taken to a household.
No. 4 had received other warning signals.
17
On various occasions (he could not say how many), his vehicles
had been stopped and he had then been charged with alleged contraventions
of s.
31(1) of the Act.
For example, on 20 February 1985, one of his vehicles was
stopped near Winburg on the Bloemfontein road whilst conveying a load of
1150
cartons of bottled wine. He was convicted in the Bloemfontein magistrate's
court. (An appeal was subsequently upheld on the
ground that the State had not
proved
mens rea
.)
Again, on 11 July 1985 (sixteen days before the
offences charged) No. 4 was stopped at Pietermaritzburg whilst conveying sugar
purportedly
under the authority of a permit containing paragraph C.
No. 4
said when cross-examined that although he had not sought a second opinion before
26 July 1985 (the date of the contraventions
charged), he did take senior
18
counsel's advice in October 1985. His reason for not seeking
other advice before this was that he believed in Stephens. Six or seven
previous
court cases in which he had been acquitted had vindicated Stephens's opinion. It
is noteworthy that No. 4 referred to no
case in which Stephens's opinion on the
ambit of paragraph C was approved by a court. It would seem that his previous
acquittals
were based on a failure by the prosecution to prove
mens rea
.
Under cross-examination he agreed that Stephens could also make mistakes, and
that it was possible that he foresaw that Stephens
could possibly be mistaken,
but when he was asked why it was then that he had not sought a further legal
opinion he said he could
give no answer.
In my opinion there is no doubt in
this case that No. 4 had the requisite
mens rea
, and that as he was a
directing mind of the corporate accused, they also
19
had
mens rea
.
Alleged splitting of
charges
.
It was argued that there was here an unlawful duplication or
splitting of charges, because -
(a) The sugar conveyed (50 000 kg.) -
(i)
constituted one consignment; and (ii) it was loaded in Durban and was in
transit to Witrivier when the vehicles were stopped on 26 July 1985 while
travelling between Waterval-Boven and Nelspruit.
(b) The conveyances was performed at the instance
of Export Import Trading
pursuant to
the sale of sugar by Huletts Refinery to Lowveld Food Distributors.
20
(c) Although the conveyance was effected in
two loads, it
was in essence one transaction undertaken on one occasion with a single intent.
The rule against splitting of charges
is a rule of practice which has grown up
over the years, and it amounts to this: where the accused has committed only one
offence
in substance it should not be split up and charged against him in one
and the same trial as several offences. (See
Ex parte Minister of Justice :
In re Rex v Moseme
1936 AD 52 at 57.) Various tests have been propounded for
use in applying the rule, but these cannot in the nature of things be decisive
in all cases, and they should not be regarded as rules of law.
They are only
useful practical aids which can be used to ascertain whether or not a single
offence has been committed. In the view
of VAN WYK AJA in
R v Kuzwayo
1960 (1) SA 340
21.
(A) at 344 B (which has frequently been applied in this court)-
"Dit volg dus dat by die toepassing van die reël 'n mens tot 'n groot
mate afhanklik is van die gesonde verstand en billikheidsgevoel
van die
hof."
In my view the fallacy underlying the
accused's submission is that they
were not charged with the conveyance of sugar. The charges against them were
that they undertook
road transportation without the authority of a permit
authorizing such road transportation, or alternatively that, being the holder
of
a permit, they undertook road transportation otherwise than in accordance with
the provisions of such permit. Under the definition
of "road transportation" in
s. 1 of the Act is included the conveyance of goods on a public road by means of
a motor vehicle for
reward. On the evidence, separate goods (albeit of the same
kind) were
22
conveyed for separate rewards, in separate vehicles
driven
by separate drivers, and purportedly under separate permits.
On
these facts, there can be no doubt that two separate offences, and not a single
offence, were committed.
The point is without merit.
The convictions in
this case
.
It was submitted on behalf of the accused that since the sugar
referred to in each of the counts was conveyed by the holder of a permit,
s.31(b) of the Act and not s. 31(1)(a) applied . Consequently the accused were
wrongly convicted of contravening s.3l(1)(a). The
point is well taken - see
S
v Smith
1986(3) 714 (A), a decision which had not been reported at the date
on which the accusedwere convicted. It is competent, however,
to substitute
convictions under the alternative counts, which charged contraventions of s.
31(1)(b) (
ibid
, at 721 F).
23
It appears that all of the accused were convicted on both
counts. This was clearly correct in the case of accused No. 1 (the
transportation
was performed under colour of the two permits issued to it, and
it supplied semitrailer ND 90044); in the case of accused No. 2 (it
supplied the
two mechanical horses ND 329666 and ND 324908 and the two drivers); and in the
case of accused No. 4 (whose was the
mind directing the road transportation
alleged in each of counts 1 and 2). In the case of accused No. 3, however, it
provided only
semitrailer ND 312230, which was used for the road transportation
covered by count 2. There was no evidence that No. 3 participated
in the
performance of the motor transportation covered by count 1. No. 3 should not
therefore have been found guilty on this count.
The previous
convictions
.
No previous convictions were proved against
24
Nos. 1 and 3 accused. The magistrate held that three previous
convictions had been proved against no. 2, namely, convictions in the
magistrate's courts at Howick (on 30 January 1983), Estcourt (on 20 June 1985)
and Bloemfontein (on 19 May 1985); and that three
previous convictions had been
proved against accused No 4, namely convictions in the magistrate's courts at
Ladysmith (on 25 February
1980), Estcourt (on 20 June 1985) and Bloemfontein (on
19 May 1985). All of these convictions were in respect of contraventions of
s.
31(1)(a) of the Act (unlawful conveyance of goods), and fines of R100.00 were
imposed in each case. With the exception of the
Bloemfontein conviction, all of
the convictions were in pursuance of admissions of guilt. The Ladysmith
conviction and the Bloemfontein
convictions were admitted, but none of the other
convictions was admitted by either No. 2 or No. 4, and it was accordingly
incumbent
on the prosecution to
25
prove them.
The Bloemfontein convictions were under appeal
at the time of the trial, and counsel for the State agrees that they should not
have
been taken into account for the purpose of sentence in this case. (The
appeal was subsequently upheld by the Orange Free State Provincial
Division,
which set aside the convictions and sentences.)
In the proof of previous
convictions, use may be made of form SAP 69 or form J 14. Form SAP 69 is
furnished by the South African Criminal
Bureau and contains information derived
from fingerprint records. Form J 14 is completed by the clerk of the court by
which the accused
was previously convicted and sets out under headings
information relating to the previous convictions which has been extracted from
the court records. (See J C Ferreira,
Strafproses in die Laer Howe
2e
uitgawe at 611-612).
26
The copies of the completed forms J 14 contained in the record
are headed
"VORIGE VEROORDELINGS VAN -(Uittreksel uit die oorspronklike
saakrekord)" There follow the headings under which the information is
tabulated
namely: Misdaad (waaraan skuldig bevind); Datum van skuldigbevinding; Datum van
vonnis; Plek waar veroordeel; Vonnis; Opmerkings.
At the foot there is provision
for the clerk of the court to certify that what is set out in the form is "'n
juiste uittreksel."
The form is apparently admissible under
s.232(1)
or s.
234
(1)
of the
Criminal Procedure Act
>.
In the relevant forms J 14 produced by
the prosecution there appear under
Vonnis
: "R100.00 EVS", or "Betaal R100
E/S", or "R100 S/E". It was common cause
that the letters mean "erkenning van
skuld" or "skulderkenning".
27
The question arises whether a conviction in pursuance of an
admission of guilt can be proved by the production merely of a completed
form J
14, or whether something else is required.
Admissions of guilt are dealt with
in
s. 57
of the
Criminal Procedure Act
>. This provides in ss. (1) that
where a summons is issued against an accused, he may, in the circumstances
specified, without appearing
in court, admit his guilt in respect of the offence
in question by paying the stipulated fine
inter alia
at any police
station within the jurisdiction of the court concerned. Ss.(6) provides that an
admission of guilt fine paid at a police
station in terms of ss. (1) and the
summons shall be forwarded to the clerk of the magistrate's court which has
jurisdiction,
"and such clerk shall thereafter ....
enter the essential particulars of such
28
summons ... in the criminal record book for admissions of
guilt, whereupon the accused shall ... be deemed to have been convicted
and
sentenced by the court in respect of the offence in guestion." It is clear from
ss.(6) that no act of a magistrate is required
for the conviction and sentencing
of an accused who pays an admission of guilt fine: that is deemed to take place
ipso facto
upon the entry by the clerk of the court of the essential
particulars of the summons in the criminal record book for admissions of
guilt.
It follows that the conviction and sentence can be proved only by the production
óf the criminal record book for admissions
of guilt, or a certified
extract therefrom. No. such proof was forthcoming in this case.
29
No reference was made in any of the forms J 14 to the criminal
record book for admissions of guilt, and plainly such book does not
form part of
"die oorspronklike saakrekord."
The State also led the evidence of
Lieutenant-Colonel Welthagen of the Railway Police that No.4 was on about 16
March 1986 appearing
on a similar charge in the Heidelberg magistrates court.
Welthagen was carrying a sheaf of J 14 forms, and while they were waiting
for
the magistrate to come into court to give judgment, No.4 said "dat die Howick
vorige veroordeling gedateer 30 Januarie 1983 wel
sy vorige veroordeling is."
(This related to No. 2 accused see above).
Welthagen's evidence regarding No.
4's admission regarding the conviction at Howick on 30 January
30
1983 did not constitute proof as against No 2 accused.
It was made in the course of a casual conversation, and
it cannot be said that No.4 was at the time acting, or was
authorized to
make an admission, on behalf of accused
No. 2.
The order of
forfeiture
.
S.36(J) of the Act provides that -
"The court convicting any person of an offence under this Act involving the
undertaking of unauthorized road transportation - - -may,
and shall on a third
and each subsequent conviction of such an offence, declare the motor vehicle
used in such transportation and
any goods conveyed thereon without authority, or
the convicted person's rights in such motor vehicle or goods, to be forfeited to
the State: Provided that ... "
31
The magistrate found that, having regard to accused No 2's
previous convictions (Howick, Estcourt and Bloemfontein), the present
convictions
were No. 2's fourth and fifth convictions; and that having regard to
accused No 4's previous convictions (Ladysmith and Bloemfontein),
the present
convictions were his third and fourth. That being so, the magistrate held he was
obliged to make a declaration of forfeiture
under s. 36(1).
For the reasons
just given, no relevant previous convictions were proved against No. 2, and the
only relevant previous conviction
proved against No. 4 was the admitted
Ladysmith conviction. The question then is whether the present two convictions
are to be regarded
as No. 4's second and third convictions (in which case the
forfeiture declaration was in order), or whether they are to be regarded
as
together constituting his second conviction (in which case
32
the forfeiture cannot stand.)
A similar question arose for decision
in
R v Ansowitz
1916 T P D 693. The accused was convicted.
of
selling liquor to a native in contravention of s. 46 of
the
Transvaal
Liguor Licensing Ordinance
32 of 1902. A
previous conviction on two
counts was proved against him,
and the magistrate considered himself bound,
in view of the
provisions of s.46, to sentence the accused to two
years'
imprisonment. In giving judgment on an appeal against
sentence,
MASON J said at 694 that the magistrate, following
undoubtedly the exact
words of s. 46, said that there had
been two prior offences, and that as this
was a third offence
he was bound to impose two years' imprisonment with
hard
labour. The learned judge continued:
"In one sense of course there was a conviction for two separate offences, but
it is clear that there was only one
33
conviction at one prior period, and the object of the law is
that the conviction should operate as a warning, and, if there is a second
offence on a separate occasion, then the minimum period of twelve months should
be imposed, and, if a third offence on a third occasion,
the minimum period of
two years. There are other laws very much to the same effect, increasing. the
penalty for subsequent offences,
but none of them have ever been construed so as
to mean that a conviction on several counts on one occasion is to be considered
several
prior convictions for several prior offences, and entail this increased
penalty." The sentence was accordingly reduced to twelve
months'
imprisonment with hard labour.
I respectfully agree with the learned
judge's reasoning. The present is a
converse case. No.
4 had one previous conviction and he now had a second
conviction
34 on two counts - but the same principle is applicable, and the
present convictions are to be regarded as one conviction for the
purpose of
s.36(1) of the Act. Consequently the declaration of forfeiture will be set
aside.
Sentence
In his written reasons the magistrate said that in
imposing sentence he took into account that the convictions (
sc
on count
2) were accused No. 2 and 4's fifth and fourth conviction respectively. He also
took into account that accused Nos. 1 and
3 were first offenders, but at the
same time he had regard to the fact that although accused Nos. 1, 2 and 3 were
separate registered
companies, they undertook the road transportation jointly. A
further consideration was that the accused were conscious of previous
warnings
in the form of small fines paid as admissions of guilt which had clearly had no
effect upon them. He had regard to the maximum
fine of R10 000 which had been
laid down by the
35
legislature and which indicated the seriousness with
which
the offence should be regarded. The magistrate referred finally to an
unreported case of in the Eastern Cape, in which a fine of R1500
was not
regarded as excessive.
In view of the fact that we disagree with the
magistrate's findings in regard to the previous convictions, this court is at
large
in regard to the sentences on accused Nos. 2 and 4. If their sentences are
reduced, a reduction in respect of Nos. 1 and 3, who are
first offenders, should
follow. (I do not think that the fact that No. 3's conviction on count 1 is
being set aside affords ground
for distinction between No. 3 and No. 1 - in the
case of all the accused the magistrate treated the two counts as one for the
purpose
of sentence.)
There is a further ground for interference. It does not
seem that the magistrate paid sufficient regard to the fact that accused Nos.
1,
2 and 3, though separate legal entities, are members of a group of companies,
which
36
essentially constitutes an economic unit, so that
punishment
of Nos. 1 and 3 is indirectly punishment of.No. 2, the holding company, and
punishment of No. 2 is indirectly punishment of the two
shareholders, of whom
No. 4 is one.
The fines imposed on all the accused aggregated R10 000, which is in my
opinion entirely out of proportion to the seriousness of the
offences,
especially since the magistrate properly treated the two counts as one for the
purpose of sentence.
The problem then is, what sentences should be substituted by this court.
Little guidance is to be obtained from the reported road
transportation cases
and counsel were not able to offer the. court any real assistance in this
connection.
In my view it would be appropriate and just to impose on the
accused fines which in total equal the gross consideration received from
the
illegal transportation, namely, R3500. (Cf.
S v Deal Enterprises (Pty)
Ltd
1981(4) SA 29 (A) at 36 H).
37
The order
.
The appeal is allowed in part. For the
magistrate's verdicts and sentences the following is substituted:
(a)
Accused Nos. 1, 2 and 4 are
found guilty on the alternative charges in counts 1 and 2 (contraventions of s.
31(1)(b) of Act 74 of
1977).
(b)
Accused No. 3
is found guilty on the alternative charge in count 2 (contravention of s.
31(1)(b) of Act 74 of 1977).
(c)
Accused No. 1
is sentenced to a fine of R500-00, both counts being treated as one for purpose
of sentence.
(d)
Accused No. 2 is sentenced to
a fine of R2000-00, both counts being treated as one for purpose of
sentence.
38
(e) Accused No. 3 is sentenced to a fine
of
R500-00.
(f) Accused No. 4 is sentenced to a fine of
R500-00, alternatively
3
months' imprisonment, both counts being treated as one for purpose of sentence.
The declaration of forfeiture is set aside.
H C NICHOLAS AJA
BOTHA J A
HEFER JA Concur.
KUMLEBEN JA
FRIEDMAN AJA