C. of A. (CRI) NO.4 of 1986
IN THE LESOTHO COURT OF APPEAL
HELD AT MASERU.
In the matter between:
TEBOHO DLAMINI First Appellant
TOZAMILE SIXISHE Second Appellant
TSOAKAE MABOEE Third Appellant
and
REX Respondent
Coram:
Mahomed, J.A.
Aaron, J.A.
Miller, J.A.
JUDGMENT
Mahomed, J.A,
The three Appellants in this appeal were found guilty of the crime of FRAUD in the Subordinate Court for the District of LERIBE. An appeal to the High Court failed but leave was granted to appeal to this Court.
The indictment in the matter consists of a main count of FRAUD and al alternative count of theft by false pretences. It reads as follows:-
ANNEXURE "A"
That the said accused are charged with the crime of fraud.
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In that upon or about the 23rd day of April, 1984 and at Maputsoe in the district of Leribe, the said accused each or one or other or all of them, did unlawfully and with intent to defraud misrepresent to Neil Bruice, that certain documents to wit some cheques which they then and produce and exhibited to the said Neil Bruice were genuine cheques, and would be met on presentation at Barclays Bank International, and did by means of the said misrepresentation induce the said Neil Bruice to his loss and prejudice to supply them with property worth R61,492-47 whereas the said accused when they made the aforesaid misrepresentation, well knew that the said cheques were not genuine and available cheques and would not be met on presentation and the said Barclays Bank International, and thus commit the crime of Fraud.
ALTERNATIVELY:
That the said accused are charged with the crime of Theft by false pretences.
In that upon or about the 23rd day of April, 1984 and at Maputsoe in the district of Leribe, the said accused each or one or other or all of them, did unlawfully and with intent to defraud and to steal misrepresent to Neil Bruice, that certain cheques were good and available cheques on presentation to Barclays Bank International, and did by means of the aforesaid misrepresentation obtain from the said Neil Bruice the property worth R61,492-47 the property or in the lawful possession of the said Neil Bruice and yet when the said accused made the aforesaid misrepresentation well knew that the said cheques were not genuine, and will not be met on presentation to Barclays Bank International, and the said accused did thereby commit the crime of Theft by false pretences."
Counsel for the Crown, submitted that the Appellants were clearly involved in what was undoubtedly a swindle perpetrated on the suppliers of the merchandise, and drew our attention to various aspects of the evidence in support of this contention. There is considerable sustance in this submission but an accused person cannot be found guilty of a fraud which is not clearly and precisely pleaded.
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R v Alexander and Others 1936 A.D. 445
S v Hugo 1976 (4) SA 536 (AD).
In Hugo's case, it was stated that:
"An accused person is entitled to require that he be informed by the charge with precision, or at least with a reasonable degree of clarity, what the case is that he has to meet and this is especially true of an indictment in which fraud by misrepresentation is alleged................ It is of vital importance to such an accused to know what he is alleged fraudulently to have said or done and he ought not to be left to speculate as to the true nature of the misrepresentations laid to his charge, nor to spell out of the charge possible misrepresentations upon which the State might have intended to rely but which it did not reasonably clearly describe. And when the State clearly specifies the misrepresentation upon which it relies, the accused is entitled to regard them as exhaustive and to prepare his defence in respect of those representations and no other....."
THE FRAUD COUNT
It is clear from the indictment that the Crown assued the onus of proving that
The Appellants made a representation to Neil Bruice on the 23rd of April, 1984, at Maputsoe,
the representation was that some cheques which they then produced and exhibited to Neil Bruice were genuince cheques and would be met on presentation at the Bank,
this misrepresentation induced Neil Bruice to his loss and prejudice to supply them with property worth R61,492-47,
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this misrepresentation induced Neil Bruice to his loss and prejudice to supply them with property worth R61,492-47.
The evidence led by the Crown at the trial in the Subordinate Court failed to establish any case against the Appellants based on these averments.
Mr. Bruce, the manager of a company in Johannesburg, testified that the order for the supply of the merchandise, was given to him telephonically in Johannesburg by a person who described himself as "George". "George" requested that the goods be consigned to Maluti Construction (Proprietary) Limited, Maseru, and delivered via Ficksburg Bridge at Maputsoe, where the lorries carrying the goods would be met. Payment would be made on delivery of the merchandise by bank guranteed cheques.
There was no evidence at the trial as to who "George" was or that any one of the Appellants was "George".
The goods ordered on the telephone were transported to Lesotho in three different loads.
The driver of the third load was Release Ngyame (PW 2). He testified that when :he arrived at Maputsoe, he did not find the person who was supposed totake delivery. The next day he met one Makhubu (formerly accused number 1 at the trial). Makhubu told him he was the one who dealt with "George's" Property". P.W.2 then transferred his load to Makhubu's vehicle. No cheque was obtained. P.W.2 returned a week later for the cheque, but Makhubu replied that the "money was never brought by those persons."
It cannot be contended on this evidence that the misrepresentation alleged in the charge "induced" the supply of
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this load. The driver does not allege that any representation was made to him about any cheques before he parted with the goods. Indeed he did so, without obtaining any cheques.
The evidence in respect of the drivers of the other two loads of merchandise was also insufficient to establish the allegations in the indictment. Although they testified that when delivering their loads they received certain cheques from persons whom they were unable to identify, they do not state that any representations were made to them to the effect that the cheques were "genuine cheques and would be met on presentation". In any event, it is quite clear that Mr. Bruce was not in Lesotho at any relevant time. No representation could therefore have been made to him at Maputsoe as is alleged in the charge.
Faced with these difficulties, Counsel for the Crown, asked for an adjournment to consider her position. When the matter was resumed, she abandoned any reliance on the main count of fraud, but submitted that the Court was competent on appeal to substitute a conviction in respect of the alternative count of THEFT by false pretences.
THE ALTERNATIVE COUNT
The alternative charge like the main charge is based on the allegation that the Appellants made a misrepresentation to Neil Bruce on the 23rd of April, 1984, to the effect that "certain cheques were good and available on presentation" to the Bank and that it was "by means" of this representation, that they obtained property from him worth R61,492-47.
It is clear that the Crown is faced with exactly the same difficulties in proving the alternative charge as it has in proving the Main charge. The evidence necessary to sustain the allegations
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made in the charge, just does not exist on the record.
CONCLUSION
In the result I would order that the appeals of all the Appellants be upheld and their convictions and sentences be set aside.
I. MAHOMED
Judge of Appeal
I agree Signed ......S.AARON..........
S. AARON
S. MILLER
S.MILLER
Delivered at MASERU on this 23rd day of January, 1987.
For The Appellants - Mr. Mphalane
For the Respondent - Miss Moruthoane.
