Drayer v The State

8/8/2019 Drayer v The State

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- 2 -accept that the appellants had during this period removed aquantity of meat which was 3,450 kg less than the actualquantity which was in fact removed.

Both appellants purported to plead guilty to the charge andhanded into Court written statements in terms of Section112(2) of Act 51 of 1977.

After stating that he was guilty of the charges againsthim, the first appellant made certain factual admissionswhich included an admission that he had misrepresented theamount of meat which had been taken out and that this hadoperated to the potential prejudice of SWA Meat. Hethereafter set out the factual circumstances which gaverise to the offence by explaining that the second appellantneeded a loan of R3 000 and that he sought to accommodatethis need by devising a scheme in terms of which meat inexcess of the amounts invoiced to the first appellant wouldbe removed from the premises of SWA Meat and diverting theprofit on the meat so removed for the benefit of thesecond appellant who was an employee of SWA Meat. Thescheme operated successfully with the co-operation of thesecond appellant because on each occasion when deliveriesof meat were taken by the first appellant his vehicle wasweighed in circumstances which included the weight of twoemployees who were not on the vehicle when it was weighedat the premises of SWA Meat on the return trip. Thedifference in the weight which would result from this wasmade up by the excess meat.


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- 3 -The first appellant.explained in his 112(2) statement thatthis scheme had been devised because his credit limit withthe complainant did not permit him to purchase the excessdeliveries which he required in order to accommodate theneeds of the second appellant, but he stated that he alwayshad the intention to pay for these extra supplies. Hestated expressly in this regard that -

"Because I never had the intention to takethe meat without paying for it and in orderto ensure that no accusations wereafterwards made that I had such anintention, I sent a letter on 2 June 1987to one Danie Theron (who was within SWAMeat in control of the invoicing of meatdelivered to me) in a sealed envelope. Inthat letter I requested him to debit mewith a further 3,450 kg of meat and I saidthat I would give him further informationto explain why this request was being made.I put this letter in a sealed envelope andgave it to the said Danie Theron and on theenvelope I wrote that it should be openedon 1 September 1987. When I gave the letterto the said Danie Theron, I requested himto open the letter only on that date. Ialso informed the second accused about theletter. The second accused indicated thaton that basis he would ensure that wheneverthere was sufficient meat available he


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- 4 -would give to me 150 kg in excess of theamount which he would disclose to MrTheron. After I had received thisundertaking from the second appellant Ihanded the letter to Mr Theron who receivedit and put it in his drawer."

In the statement which the second appellant made in termsof Section 112(2) of the Act he also admitted his guilt andcomplicity in the scheme and stated that he was aware thathis conduct was wrongful and that it constituted anoffence. In the statement he confirmed that he had read thefactual circumstances described by the first appellant inhis statement and he confirmed the correctness thereof savefor the fact that he was not aware as to precisely how thefirst appellant would be removing the excess meat from thepremises of SWA Meat without the complainant becoming awarethereof. He then goes on to state that -

"On 2 June 1987 I and the first accusedagreed -

(a) that the first accused would on 1 September 1987 pay for all the meat whichwas irregularly removed;

(b) the first accused would show me thereceipt for such payment so that Icould also be satisfied that paymentfor such meat had been made; and


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- 6 -one year of imprisonment was suspended for a period of fiveyears on certain conditions.

In his judgment on sentence, the Magistrate, however,appears to have rejected the claim of the appellants thatthe first appellant had intended to pay for the excess meatwhich had been removed from the premises of thecomplainant.

An appeal against these sentences was thereafter noted andprosecuted in the Court _a quo on a large number of groun ds,including the ground that the Magistrate had erred insentencing the appellants on a factual basis differentfrom the basis on which they had pleaded guilty. The Courta quo which heard the appeal, appeared to accept that itwas irregular for the Magistrate to have sentenced theappellants on facts which were materially different fromthe facts set out in their statements in terms of Section112. The Court decided however that -

(a) the statements made by the appellantsin terms of Section 112(2) did notconstitute an unequivocal admission ofguilt and the Magistrate should haveentered pleas of not guilty.

(b) The fact that the first appellant hadstated that it was his intention at alater stage to pay for the excess meatwhich had been taken from the premises


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- 7 -of the complainant and the fact that"second appellant was of the same opinion", should have caused theMagistrate to entertain a doubt as towhether the appellants indeed admittedtheir guilt.

In the result the Court a quo made an order setting asidethe conviction and sentence of each of the appellants andremitting the case for hearing before a differentMagistrate.

An application was thereafter made for leave to appealagainst that order on the grounds that the Court had erredin holding that the statements of the appellants did notconstitute an unequivocal admission of guilt and in holdingthat the Magistrate should have doubted whether theappellants were indeed admitting their guilt. The leavesought was granted.

When the matter was called before us, the Court queriedmero motu whether an appellant had any right of appeal froman order which set aside his conviction and sentence (andwhich remitted the matter for further hearing before adifferent Magistrate). Both counsel for the appellants andcounsel for the State submitted that such a right offurther appeal did exist at the instance of an accusedperson but because the matter had not previously beenraised in the Court a quo or at any other stage, the pointwas not fully argued. In the special circumstances of this


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- 8 -matter I am of the view that the Court should decide theappeal on the merit s, by assuming without deciding that theappellants did in fact have such a right of further appeal(with leave).

In a very thorough argument Mr Maritz who appeared for theappellants conceded that if there was any doubt as towhether or not the appellants were making an unequivocaladmission of guilt before the Magistrate, the order settingaside the conviction and sentence of each of the appellantsand remitting the case for hearing before a differentMagistrate, was correctly made. He contended however thaton a proper analysis of the elements of the crime of fraudalleged in the charge against each of the appellants and adetailed analysis of the factual admissions made by each ofthe appellants in relation to those charges, the appellantshad in fact made and intended to make an unequivocaladmission of guilt. He conceded that both the appellantshad expressly contended before the Magistrate that therewas a continuing intention at all relevant times to pay thecomplainant for the excess meat which had been taken fromthe premises of the complainant during the relevant periodbut he contended that this did not detract from the factthat each of the appellants made an unequivocal admissionof guilt with respect to the charge against them.

Mr Heyman, who appeared for the State, disputed thesecontentions and referred us to various parts of the recordin support of his arguments.


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- 9 -Upon a consideration of all the relevant evidentialmaterial, I have come to the conclusion that the Magistrateshould indeed have had a doubt as to whether or not theappellants were making an unequivocal admission of guilt.

1. Whilst it is perfectly true, as Mr.Maritzreminded us, that the offence charged wasfraud and not theft and that theadmissions made by the appellants in theirstatements in terms of Section 112(2) weredirected to the relevant elements of theoffence of fraud, the insistence by theappellants in their statements that theyalways intended to pay for the excess meatwhich had been removed from the premisesof the complainant, was not irrelevant tothe element of mens rea in the offence socharged.

2. Whilst the appellants in their respectivestatements admit that their conductoperated to the "potential prejudice" ofthe complainant, there is no expressaverment that they intended to cause suchpotential prejudice.

3. In the course of his evidence in mitigation the first appellant not onlyrepeated his statement that he always hadthe intention to pay for the excess meat


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- 10 -removed from the premises of thecomplainant, but he significantly addedthat he never intended to steal anythingor to commit fraud.

4. The second appellant similarly attemptedto show an innocent state of mind byasserting not only an express agreementbetween him and the first appellant thatthe first appellant would pay for suchexcess meat but by further insisting thathe would "never in his life" haveassisted the first appellant at all if hehad known that payment for the excessmeat supplied would not be made to thecomplainant.

5. Indeed the Magistrate himself in considering this evidence was constrained toobserve that the appellants sought toproject themselves so innocently as tocause him to wonder at times whether heshould not have altered their plea ofguilty to one of "not guilty".

At the very least this evidence of the appellants, shouldin my view have caused the Magistrate to doubt whether theappellants were indeed making an unequivocal admission ofguilt and he should accordingly have acted in terms ofSection 113 of the Criminal Procedure Act of 1977 to alter


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- l i the pleas of guilty, even if those pleas had correctly beenentered initially. It is perfectly true that the Magistratedid not appear. to believe some of the. apparentprotestations of innocence projected by the appellants butthat is quite irrelevant in determining what plea shouldhave been entered. The test is not whether an accusedperson should be believed in what he says but whether ifwhat he says is true it would disclose a possible defenceto the charge preferred against him. The presumption ofinnocence should operate in favour of the accused person insuch circumstances. (See: S v Mkize, 1978(1) SA 264 (N) at268; S v Ncube, 1981(3) SA 511 (T) at 514.)

In the result I would dismiss the appeal.

MAHOMED, A.J.A

I concur:

BERKER, C.J.

I concur:

DUMBUTSHENA, A.J.A.


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Advocate for the Appellant: Adv. J.D.G. MaritzInstructed by: Van der Merwe, Louw & Partners, Windhoek.Advocate for the State: Adv. J.L.Heymah - Acting Prosecutor

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Drayer v The State