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concurrently with the period of imprisonment in respect of the other counts, ordered that one and a half years of each sentence of five years' imprisonment should be suspended conditionally.
The Appellant now appeals, with the leave of the High Court granted on the 15th day of May, 1991, to this Court against both her conviction
on the eighteen counts aforementioned and the sentence imposed in respect of each such conviction.
At the outset it is apposite for me to state that both the trial Court and the Court a quo dealt at length, and with great erudition, with the law pertaining to the crime of Obtaining by False Pretences as well as the relevant
facts which were the subject of evidence at the trial. The arguments put forward before us at the hearing of the appeal revolved
almost exclusively around the facts and more particularly concerned the question whether the State had fulfilled its task of proving
each of the elements of the crime alleged in each separate count of the Charge Sheet.
Judgment on the aforesaid issues concerns therefor essentially an interpretation of the Charge Sheet and an analysis of the evidence.
It would accordingly be inappropriate for me to embark upon a broad excursus of the law relating to the crime of Obtaining by False
Pretences. Certain general observations on the facts and the law are, however, appropriate.
The Appellant was originally charged with a total of twenty-nine counts of Obtaining by False Pretences. During the course of the
trial the Prosecution applied to split the original count seven into three substantive counts which then became counts seven, eight
and nine. This application was opposed by the Appellant but
^
after argument and due deliberation the trial Court allowed the
amendment. This amendment is the subject of attack on appeal and
will be dealt with hereinafter in this Judgment. A synopsis of
the evidence is as follows:
The Appellant had induced various persons to part
with large sums of money on the pretext that she
had entree' to large loans which were to be granted
by an entity in Ireland. The funds in respect of
such loans were available in a Commercial Bank in
Botswana but in order to gain access to such loans
it was necessary for the prospective borrowers to
pay certain amounts by way of deposit (presumably as
interest in advance) which deposits had to be paid
;
to the Appellant in cash, she acting as a conduit
J
between the Depositor and the Commercial Bank and/or
j
the entity in Ireland. The Charge Sheet went on to
i
allege that no fewer than seven persons had thus been |
induced by the Appellant to part collectively with a
sum in excess of P60 000.00 (Sixty thousand Pula).
The record of the evidence given at the trial on
behalf of the State is replete with myriad examples
j
of representations made by the Appellant to the
j
various complainants in regard to loans to which she
!
had access in the manner explained above.
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The offence of Obtaining by False Pretences is defined in section j 308 of the Penal Code as follows:
"308. Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being
stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of an offence and is liable
to imprisonment for a term not exceeding seven years."
The Provisions of section 307 are also relevant:
"307. Any representation, made by words, writing or conduct, of a matter of fact, either pasdr'or present, which representation
is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence."
The phrase "False Pretences" is inherently tautologous as the
word "Pretence" connotes some falsity. Be that as it may, the relevant
Sections of the Penal Code are easily understood; the crime consists
m
in the making of a representation by an accused which is false in a material respect with the intention of inducing another person
to part voluntarily with some or other property belonging to that person which is capable of being stolen. Of course, a necessary
ingredient of the crime is that the accused should have the requisite mens rea; that is the knowledge both that the reprentation is false and the intention to induce the other person to part with his or her property
as a consequence of the misrepresentation. The misrepresentation may be in any form including conduct. "Conduct" is certainly
wide enough to include a committio per ommissionem in a situation where there is a clear duty upon the accused to correct a misapprehension induced in another person by the accused.
A hypothetical situation will suffice to explain. A person introduces himself to the tenant of an apartment as an agent appointed
by the landlord to collect rent. By this false representation he induces the tenant to pay over to him the rent. Suppose that on
the next occasion that the rent is due he simply gains admission to the premises and without making any further representations obtains
the rent from the tenant. The tenant is obviously still labouring under and has clearly acted upon the misapprehension. The accused
by remaining silent when he could have dispelled the misapprehension has in fact by conduct continued his misrespresentation; provided
that the requisite intention may be inferred from his conduct the necessary requirements for the offence in respect of the second
occasion will have been established. Of course, the misrepresentation need not be made personally by the accused to the victim. There
seems to be no reason in logic nor in law why the false pretence
cannot be made by an agent; "qui facit per alium facit per se."
It is necessary to deal briefly with the particularity required
in a Charge Sheet.
Section 128 of the Criminal Procedure and Evidence Act provides
that:
"Every indictment or summons shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences
with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as
to the nature of the offence charged."
It seems to me that the Legislator intended no more than that the charge must provide such particulars about the alleged offence
as may be reasonably sufficient to inform the accused of the nature of the charge. Of course, a charge must set out sufficient facts
to embrace each and every element of the offence alleged to have been committed. Should even a single element be omitted such omission
will render the charge fatally defective. In order to consider whether the aforegoing requirements have been met it is necessary
for a Court to judge whether an alleged defective charge has prejudiced an accused in the preparation of his or her defence. Each
case will of course have to be judged on its own facts but it seems to me that absolutism does not perch happily on the banners of
our law and the Court would be slow to set aside a charge, and an Appeal Court would be hesitant to uphold that there has been a
miscarriage of justice, if a charge is defective in some minor respect which in no way prejudiced the accused in the conduct of the
defence. To hold otherwise would result in a triumph of form over substance.
It is also necessary to comment briefly on the meaning of the
phrase "prima facie case" within the context of the criminal law.
In the case of ex parte Minister of Justice in re R vs Jacobson
and Levy 1931 A.D. 466 at 478 Stratford J. A. said:
"prima facie evidence in its usual sense was used to mean prima facie proof of an issue, the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the
other side, the prima facie proof becomes conclusive proof and the party giving it discharges his onus."
In this sense prima facie evidence means evidence capable of being supplemented by inferences drawn from the opposing party's failure to reply. Whether such
inferences may legitimately be drawn of course depends upon the nature of the case and the facts which have been adduced. It is
also of course dependent upon "the relative ability of the parties to contribute evidence on that issue." See: Ex Parte Minister of Justice supra at p. 479.
Thus, if in a criminal case, the facts adduced by the State
can reasonably support an inference beyond reasonable doubt and
it lies exclusively within the power of the accused to rebut such
an inference, failure to do so may entitle the Court to infer that
the truth would not have supported his or her case. On the other
hand, if there is no reason to expect an accused to be able to throw
light upon the facts, his or her silence can add nothing to the
evidence adduced by the State. Of course, the requisite standard
of proof must always be satisfied but in considering whether the
onus has been discharged a Court is entitled in appropriate cases
to take a party's failure to adduce evidence into account. Thus,
in:
S. vs Veldthuizen 1982 (3) S.A. 413(a) at 416(G) to (H)
\J
where the Court had to consider the meaning of the words "prima
facie evidence", as used in the South African Criminal Procedure
Act, the Court held:
"As used in this Section they mean that the Judicial Officer will accept the evidence as prima facie proof of the issue and, in the absence of other credible evidence, that prima facie proof will become conclusive proof
in deciding whether there is credible
evidence which cast doubt on the prima facie evidence adduced the Court must be satisfied on the evidence as a whole that the State has discharged the onus which rests on it proving
the guilt of the Appellant."
The evidence adduced by the State and the inferences which
can properly be drawn from the silence of an accused are two variables
which must always add up to the same answer, viz proof beyond
reasonable doubt. The greater the significance which can be attached
to a failure to give an explanation the less the evidence which
the State will have to lead in order to discharge its onus. Of
course, the evidence lead by the State must always be sufficient
to call for an answer. An accused's failure to given an explanation
or the giving of a false explanation is not an item of evidence
in itself and does not justify an inference which could not reasonably
be drawn from the other evidence.
See: R vs. Wattarn (1952) 36 Cr. App. R 72 at 76.
See also: Union Government (Minister of Railways) vs. Sykes (1913) A.D. 156.
If a witness has given evidence directly implicating the accused
the accused can seldom afford to leave such testimony unanswered.
Of course a Court does not have to accept evidence merely because
it is uncontradicted but it is unlikely to reject credible evidence
n
m
which the accused has elected not to deny. In such cases the accused's
failure to testify or to rebut the evidence is almost bound to
strengthen the case for the prosecution.
See: S. vs. Nkombani 1963 (4) S.A. 877 (A) at 893 (G)
S. vs Snyman 1968 (2) S.A. 582 (A) at 588 (G).
It is necessary to deal briefly with evidence which is necessary
in a case such as the present where an accused is charged with a
multiplicity of counts. As I have explained above it is necessary
for the State to allege each element of the crime in respect of
which the accused is charged in each of the counts. However, that
does not mean that a Court should truncate each of the counts and
consider whether sufficient facts have been adduced to establish
in regard to the conviction. These arguments constituted a trilogy and may be condensed as follows:
First, that there was no proof of falsity (counts one, two, three, four, six, ten, eleven, twelve and sixteen); Second, that there
was no proof of an alleged misrepresentation (counts one, four, six seven, nine, twenty-one, twenty-two, twenty-four, twenty-seven,
twenty-eight and twenty-nine); and
Third, that there was evidence which contradicted the alleged misrepresentation (counts eight, twenty-seven, twenty-eight and twenty-nine).
In regard to the argument that there was no proof of the falsity of the representations made by the Appellant, I am of the view that
there is no merit in this submission. On a conspectus of the evidence as a whole it is quite clear that the Appellant embarked upon
a systematic course of conduct to obtain money from the various complainants by making the representation that she had access to
a large loan which originated from an entity in Ireland. The Appellant's argument ran as follows:
The State had failed to prove that the representations in relation to the loan from Ireland were false. But this argument loses sight
of the fact that there was direct evidence that the accused had fabricated a story about her acquaintanceship with a Mr. Hudson (a
senior employee of the Bank of Botswana) and the direct evidence of the witness Boitumelo Letsholo to the effect that the Appellant
had induced her to make a deceitful phonecall
10
to Mr. Nkwe (PW9) and to inform him that the Appellant was
un
Appellant.
I turn now to consider Appellant's argument relating to the alleged lack of proof of the misrepresentation. In regard to Counts 1,
4, 6, 7 and 9, I am of the view that the argument is without foundation. No purpose will be served by repeating the evidence led
in regard to the said counts as both the trial court and the court a quo have dealt exhaustively therewith and I agree with their reasoning. In my view there was ample evidence of the misrepresentation
in these Counts. In regard to Counts 21, 22 and 24, however, Mr. Masoba's argument was on firmer ground. In those counts it was alleged
that the misrepresentation was that the Appellant had stated that she "had a P99 000.00 loan from the Bank of Botswana"
and that the representation was made to Tebogo Nkwe (PW8). No such evidence was led. The evidence was that the loan was from an Irish
company and there was thus disconformity between the evidence and the charge sheet. In my view the appeal in relation to these Counts
must perforce succeed. In regard to Counts 27, 28 and 29, Mr. Masoba argued that there was likewise such a disconformity. It is to
be noted, however, that in these counts the State alleged that the misrepresentation was that there was "a
45 000.00 loan through the Bank of Botswana." In this regard Abel Nkwe (PW9) testified that his sister Tebogo Nkwe (PW8) had
told him that the Appellant had informed her "there was a loan of
45 000.00 sterling that was lying with the Bank of Botswana". The evidence of Tebogo Nkwe corroborated the aforegoing, save
that the reference was to an amount of P45 000.00 and not
45 000.00 sterling. I do not believe that anything turns on this discrepancy. The precise amount is irrelevant
in my view, as the evidence shows conclusively that a representation was made in regard to a loan through the Bank of Botswana. Mr. Masoba also argued that there were discrepancies between the evidence
of Tebogo and Abel Nkwe in regard to Counts 27, 28 and 29. These discrepancies related to the fact that Tebogo Nkwe had stated that
she was present on each occasion when Abel Nkwe had paid money over to the Appellant, whilst Abel Nkwe had stated that on the third
occasion she had been absent. There were other minor discrepancies alluded to in argument. In my view these discrepancies are not such as to vitiate the evidence as a whole. Often the fact that there
are minor discrepancies in a witness' testimony indicates that there has been no collusion between witnesses. Accordingly, I am unable
to accede to the argument of Mr. Masoba in this regard.
I turn now to an argument advanced in regard to the amendment of the original Count 7 to which I have made reference above. Mr. Masoba
argued that this amounted to a misdirection which "grossly prejudiced" the Appellant. This submission, it transpired, was
somewhat hyperbolic as Mr. Masoba was unable to suggest any real prejudice to the Appellant when questioned from the Bench.
Ill
which was highlighted by the fact that she protested her innocenc to the very end. The sentence is accordingly confirmed.
C. E. PUCKRIN Judge of Appeal
T. A. AGUDA Judge of Appeal
I agree
B. A. DOYLE Judge of Appeal
GIVEN AT LOBATSE this 4th day of July, 1991,
SAFLII:
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