IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) UNREPORTABLE CASE NO: A221/06 DATE: 21/05/2007 THE STATE APPELLANT V OSCAR NZIMANDE RESPONDENT JUDGMENT R D CLAASSEN J: 1 This is an appeal by the State from the Regional Court for Northern Transvaal, Pretoria, where the Respondent was the accused. He was charged with 197 counts of fraud (with alternatives), but acquitted on all of them on 22/9/05. 2 The Special Director of Prosecutions ("appellant") lodged the appeal in terms of sec 310(2) of the Criminal Procedure Act 51 Of 1977 ("the act" or the "CPA"), after the appellant lodged a request for a casus position from the presiding Magistrate i.t 0 sec 31 O( 1) of the Act. The relevant part of the request reads as follows: (p 3050/1ofthe record.) 1. IN THAT OD Nzimande was acquitted on 22 September 2005 on 197 counts of fraud as a result of a question of law decided in favour of the accused; 1
2. IN THAT it appears that the abovementioned acquittal is based on a question of law of the accused which can be formulated as follows: Whether as a matter of law the court erred in finding that the material facts fully founded and undisputed as summarised in annexure "A" hereto, were such as to constitute gross negligence only, and that the court erred in not finding that the said facts constituted a misrepresentation of the accused's claim particulars specifically time claimed as per counts 1 17; 19; 21 24,.26 33; 35 38; 81 92; 104 106; 138 149 and 151 thus constituting frauf with the required culpa in the form of at least dolus eventualis. 3. THEREFORE the magistrate is required in terms of section 310(1) of Act 51 of 1977 to draft a casus position for consideration by the Transvaal Provincial Division of the High Court of South Africa, containing the question of law and his decision thereupon and his findings on facts in so far as they may be relevant to the question of law. " 3 The learned magistrate responded to the request in the following form: "REQUEST BY THE STATE IN TERMS OF SECTION 310(1) OF ACT 51 OF 1977 AND REASONS FOR JUDGMENT: What is perceived to be a question of law is the following: The State contends that the accused had intention in the form of dolus eventualis. However, the court found that he was grossly negligent, as a result he was given the benefit of the doubt and acquitted. " 4 Upon receipt of this response, the appellant lodged a notice of appeal on 2
11/11/05, with the following grounds of appeal: (par 6 of Appellant's Heads of Argument.) "4. FUTHER TAKE NOTICE that after receipt of the said stated case, the Appellant decided to appeal against the decision on a question of law on the following grounds: 4.1 Actual time was claimed for by the accused as referred to in column 8 and 9 of the Schedule to the charge sheet with regards to counts 1 17: 19: 21 24; 26 33,.35 38; 81 92; 104 106; 138149 and 151; and 4.2 The undisputed facts (as it also appears from the accused's own version) in relation to the said counts are that: 4.2.1 The accused was aware of the contents of all the legal aid guides and its amendment at all times relevant to these charges; 4.2.2 Actual time spent for a case was never stated on the in criminal matters although they did indicate times in civil matters; 4.2.3 After a case was finalized, the person who finalized the case drew up a claim. Time spend in court was estimated by looking at the nature of the remand: 4.2.4 The accused signed all of the claims where actual time was claimed for, therefore he was the one who estimated the times; 4.2.5 The accused testified that the time specified in these counts were "never stated as a fact "; 4.2.6 Time was give as "rough estimates "; 4.2.7 The accused conceded that he knew at the time that claims were submitted that it was time based and that every 15 minutes claimed for made a difference; 4.2.8 The accused conceded that when he claimed time as per rough estimates he knew that the time specified in his claims could have been more and could have been les than the actual hours. He accepted this and still submitted the claims. 3
4.2.9 The accused further conceded that he knew that the LAB would pay as per his estimate an accepted that the LAB might pay for more than the actual hours. 4.2.10 The accused conceded that the claims for mere postponements were on average 2:00 per remand; 4.2.11 The accused conceded that some remands only took seconds; 4.2.12 The accused as a criminal attorney conceded that he knew the meaning of dolus eventualis. 4.3 NOW THEREFORE whether as a matter of law the court erred in finding that the material facts fully founded and undisputed as summarised in paragraphs 4.2 supara, were such as to constitute gross negligence only, and that the court erred in not finding that the said facts constituted a misrepresentation of the accused's claim particulars specifically time claimed as per counts 1 17; 19; 21 24; 26 33; 35 38,.81 92,. 104 106,. 138 149 and 151 thus constituting fraud with the required culpa in the form of at least dolus eventualis. " 5 Appellant then submits that as a matter of law the learned magistrate erred in not finding that the common cause facts constituted misrepresentations amounting to fraud, at least on the basis of dolus eventualis. 6 Appellant submits that at the outset this court has 3 questions to consider and answer (par 7.1 7.3 of Appellant's Heads of Argument): 6.1 Does the stated case supplied by the learned magistrate comply with the necessary requirements, and if not, can the application proceed despite material defects; and 6.2 If this Honourable Court has found that the application may proceed despite material defects in the stated case, the next question to decide is whether or not the court a quo in fact gave a decision in favour of the Respondent on a Question of law; and 6.3 Once this Honourable Court has found that this is indeed an appeal on a question of law, the last question to decide is whether or not the court a quo erred in not convicting the Respondent on one or more of the 197 charges charged with. 4
7 Respondent submits that there are two other questions that also have to be answered: 7.1 Which question of law this court has to decide upon; and 7.2 Did the Appellant (i.e. the State) prove all the essential elements of fraud in the court a quo. THE CASUS POSITION 8 The parties are ad idem that the stated case as set out by the magistrate does not comply with the requirements of sec 310 of the CP A. The first question to answer is whether this appeal can and should proceed in spite of the shortcomings. Both parties urge the court to proceed in any event, in the interest of the State and the respondent. 9 Sec 310(1) and (2) of the CPA read as follows: 310. Appeal from lower court by prosecutor. (1) When a lower court has in criminal proceedings given a decision in favour of the accused on any question of law, including an order made under section 85 (2), the attorney general or, if a body or a person other than the attorney general or his representative, was the prosecutor in the proceedings, then such other prosecutor may require the judicial officer concerned to state a case for the consideration of the provincial or local division having jurisdiction, setting forth the question of law and his decision thereon and, if evidence has been heard, his findings of fact, in so far as they are material to the question of law. (2) When such case has been stated, the attorney general or other prosecutor, as the case may be, may appeal from the decision to the provincial or local division having jurisdiction. 10 Rule 12(b) Magistrates' Court rule reads as follows: (b) The stated case shall be divided into paragraphs numbered consecutively and shall be arranged in the following order: (i) The judicial officer's findings of fact in so far as they are material to the questions of law on which decision in favour of the accused was given; (ii) questions of law; 5
(iii) the judicial officer's decision on such questions and his or her reasons therefore. Several cases are referred to by appellant's counsel which clearly decide that if the casus is not set out properly, the court cannot hear the matter, and applies a rather strict application of the section and the rule. Respondent's counsel does not elaborate any further on the subject, other than to state that appellant's Heads fully set out the relevant law on the subject. Appellant does however go further and refers to the judgment of Botha J in the matter of S v Petro Louise Enterprises (Pty) Ltd & Others 1978 1 SA 271 T. In this case Botha J inter alia said the following: The rule that the court of appeal is not confined to the facts found as recorded in a stated case and that it may consider the record itself quite clearly does not mean that a judicial officer who is requested to state a case is entitled to refer generally to his judgment. And: Generally speaking, I think that this court will decline to hear an appeal under sec 104 where the magistrate has failed in a material respect to comply with the requirements of formulating a stated case in terms of sec 104(1) and Rule 67(10), in spite of the unfortunate prejudice and inconvenience that may result to the appellant and the respondent from such a step In the present case, the stated case is so pronouncedly defective that there would have been ample justification for us to have refused to entertain the appeal. However, when this possibility was mooted at the outset of the argument, counsel on both sides, stressing that the problem was not of their or their client's making, urged us to be indulgent and to listen 6
to their arguments. We allowed ourselves to be persuaded to do that. The fact that we were prepared to hear the present appeal, in the particular circumstances present here, should not, however, be regarded as a precedent that in future cases of a similar nature this Court will be equally indulgent. 11 Although Botha J did not intend his judgement to be used as a precedent, it nevertheless stands as a reported judgment. I for one cannot ignore it. In fact I tend to agree with his approach. The section as it stands is very unsatisfactory in a case where the magistrate does not do justice to it. One or all of the parties involved therein are then prejudiced. That is not in the interests of justice. It seems to me that where a case is of such a nature that the true casus can be gleaned from the record and the heads of argument, there is no reason why a court should not entertain the matter. 12 In the present matter, both parties accept the facts as accepted by the magistrate in his judgment. These facts include a host of admissions on behalf of the respondent, as well as much other uncontested evidence led by one or the other party. In fact most of the evidence led by the State, was not contested at all, and the magistrate in fact found as a fact that the state's evidence is uncontested. As for the respondent, even his evidence was to a large extent not disputed either, because he admitted so much of the State's evidence. The real dispute centred not so much on the respondent's acts and deeds as such, but on his mental state, i.e. whether dolus in any of its forms was present and proved. That being the situation in casu, I can see no reason for not hearing the matter. 13.1 The next question is to formulate the true casus. Respondent immediately takes issue with appellant in the sense that appellant in the request as well as in the grounds of appeal, refers to culpa rather than dolus. I take this simply as a temporary lapsus, on behalf of the drafter of the documents and accept that he throughout intended to refer to dolus. There is no sense wasting time on semantics since it was always common cause, and of course quite trite, that only dolus is relevant and not culpa in the strict sense. During argument in court, Mr Van der Merwe conceded this point, and it needs no further discussion. 13.2 Having considered all the issues, it seems to me that appellant's 7
formulation of the casus is sufficiently set out in the Notice of Appeal as set out earlier herein, i.e.: " Whether as a matter of law the court erred in finding that the material facts fully founded and undisputed as summarised in par 4.2 supra, were such as to constitute gross negligence only, and that the court erred in not finding that the said facts constituted a misrepresentation of the accused's claim particulars specifically time claimed as per counts 1 17; 19; 21 24; 26 33; 35 38; 81 92; 104 106; 138 149 and 151 thus constituting fraud with the required culpa (sic) in the form of at least dolus eventual is. " QUESTION OF LAW OR FACT 14 To answer this question one must firstly have regard to the charges as such, and then the evidence relevant thereto, and lastly the finding of the magistrate. In this regard we will only consider the charges referred to by appellant in its Notice of appeal set out above. With regard to the rest of the charges appellant has as much as conceded that on those charges respondent was correctly discharged. It was also common cause during argument that the charges mentioned in the. grounds of appeal are all based on time claims. 15 Mr van der Merwe persisted during argument that the issue is a question of fact, and not law. His argument, if I understood him correctly, was to the effect that inasmuch as all the facts are common cause, the presiding officer must determine, by way of inference from the facts whether those facts constitute the relevant offence. That, he submits, is a factual finding. This argument simply cannot stand. It is only logical that any inference to be drawn (from common cause facts), is a matter of legal reasoning to determine whether such facts constitute (in casu) an offence. Surely that can only be done by considering the legal requirements of the offence. In the result therefore this issue can only be a legal question. 16 He also submits that before the question of law becomes pertinent, a 8
finding must first be made as to the respondent's state of mind, i.e. whether he had no honest belief in estimations, and that, he submits, the magistrate did not do. The answer to this is quite simple. It is common cause that the guidelines of the Legal Aid Board ("LAB") does not provide for estimates. It requires exact times of court attendances, at least within 15 minutes. Most of respondent's "estimates" for attending to simple postponements, were between 1 to 2 or more hours. There is no way in the world that an estimate can ever be said to be an exact time. Mr Van der Merwe urged upon the court that the State did not prove that his estimates were false, in fact they could have been correct. That is not the question. The respondent knew that the LAB requires exact times. (His knowledge of the LAB's rules are common cause.) Therefore it is only logical that if he gives an estimate, he knows that it is not accurate, therefore to my mind he knowingly makes a false representation. Therefore the question of the State not having proved his state of mind, is without merit. The respondent himself gave the answer to that. LEGAL QUESTION 17 The final question to be answered is the legal question as to whether the common cause facts actually constitute the crime of fraud, whether by dolus directus or dolus eventualis. The magistrate found as a fact that respondent was grossly negligent. In light of my views set out above regarding the nature of respondent's estimates, there is no way that it can be said that respondent did not know that his representations as to time were inaccurate. Simply as a lawyer he must know that estimates and exact times are not the same. I have no doubt that on the facts as found by the magistrate, respondent not only knew that the estimates were not correct (i.e. false), and that the LAB required exact times, but he wilfully persisted in his operations. To my mind his operation constituted wilful 9
deceit by him. The magistrate actually found that he was "almost 100% sure that respondent was using the system to his advantage". (I think one should read "abusing".) This clearly illustrates the point. One cannot put it more simply or elegantly than that. 18 The result is therefore that as a matter of law, the magistrate should have found respondent guilty on all those charges where he estimated his times for attending to cases on behalf of the LAB. Those are also the only charges on which appellant is appealing. ORDER: 19 Therefore the result is that the legal question is answered in favour of the appellant. The order of the court a quo of not guilty, is set aside and substituted with a finding of 1 Guilty on charges 1 17; 19; 21 24; 26 33; 35 38; 81 92; 104 106; 138 149; and 151. 2 Not guilty on the balance of the charges. The matter is referred back to the court a quo for the imposition of sentence. JUDGE OF THE HIGH COURT R D CLAASSEN I agree. JUDGE OF THE HIGH COURT W R C PRINSLOO 10