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253E

 

S. v. HAARHOFF.

(APPELLATE DIVISION.)

1969. November 6, 21. RUMPFF, J.A., HOLMES, J.A., and RABIE, A.J.A.

 

Criminal law. -Stock theft. -"Theft" in sec. 11 of Act 57 of 1959. - What it embraces. -Embraces theft by false pretences and any manifestation of what is in reality theft.

 

It is the intention of the Legislature that the word "theft" in section 11 of the Stock Theft Act, 57 of 1959, should embrace any manifestation of what is in reality theft. It therefore includes theft by false pretences, but not fraud.

 

The decision in the Eastern Cape Division in S. v. Haarhoff, 1968 (3) S.A. 292, confirmed.

 

Appeal against a decision in the Eastern Cape Division (KOTZE, J. and EKSTEEN, J.). The facts appear from the judgment of RUMPFF, J.A.

 

254

 

Lucas C. Steyn, S.C., for the appellant: The predecessors of the Stock Theft Act, 26 of 1923 gave definitions of "theft" in the Cape in Act 35 of 1893 and in the Transvaal in Ord. 6 of 1904. A summary of these definitions is found in sec. 4 of Act 26 of 1923, and again in sec. 11 of Act 57 of 1959 in which section there is an exposition of what a person who is charged with theft of stock or produce, can be convicted. It was wrongly decided that "theft" in these sections also includes "theft by false pretences". Steyn, Uitleg van Wette, 3rd ed., pp. 101-114; Hleka v. Johannesburg City Council, 1949 (1) S.A. at p. 852. Theft by false pretences is not a form of theft. It belongs, according to the principles of our legal system, to the category of fraud, but is recognised as an independent offence. See de Wet & Swanepoel, Die Suid-Afrikaanse Strafreg, 2nd ed., pp. 428-436; R. v. Mofoking, 1939 O.P.D. at p. 118; R. v. Coovadia, 1957 (3) S.A. 611; R. v. Levitan, 1958 (1) S.A. 639; R. v. Teichert, 1958 (3) S.A. 747; R. v. Mogarra, 1958 (2) S.A. 5; Gardiner & Lansdown, South African Criminal Law & Procedure, 6th ed. vol. II, 1682-83. S. v. Solemane, 1967 (3) S.A. 691 & S. v. Ander- son, 1962 (2) S.A. 286, were incorrectly decided.

 

A.R. Erasmus, for the State: Common law theft includes i.a. theft by false pretences. See R. v. Hyland, 1924 T.P.D. 336; R. v. Swart, 12 (1895) S.C. 421; R. v. Collins, (1905) 19 E.D.C. at pp. 165-6; R. v. Levitan, 1959 (1) P.H., H19; Ex parte Minister of Justice: In re R. v. Gesa; R. v. de Jongh, 1959 (1) S.A. at pp. 239-40.

 

Our Courts have on various occasions decided that "theft by false pretences" can be included in a charge of theft, on condition that there is no procedural prejudice at -the trial of the accused. See R. v. Hyland, supra; R. v. Teichart, 1958 (2) S.A. at pp. 753-4; R. v Stanbridge, 1959 (3) S.A. at p. 280; R. v. Knox, 1963 (3) S.A. 431; R. v. Solemane, 1967 (3) S.A. 691. R. v. Mofoking, 1939 O.P.D. 117; R. v. Coovadia, 1957 (3) S.A. 611; R. v. Levitan, 1958 (1) S.A. 639; R. v. Mogarra, 1958 (2) S.A. 5 (T) are not authority for the statement that "theft by false pretences" is not a form of theft. "Theft by false pretences," although usually regarded as an offence ea nomine is, just like "theft by conversion" merely a form of "theft". A reference to "theft" will thus normally also refer to theft by false pretences, and a reference to "stolen goods" will include goods stolen by false pretences.

 

In other Acts the expression "theft" is used to include also theft by false pretences because in the absence of further definition, common law theft is envisaged. Act 50 of 1956, sec. 1 (2); Act 56 of 1955, secs. 200, 202 and First, Second & Third Schedules. See also S. v. Anderson, 1962 (2) S.A. at p. 287. Consequently "theft" in sec. 11 of Act 57 of 1959 also includes "theft by false pretences" although the Legislator did not stipulate it specifically. Equally where the Act refers to "stolen stock or produce" it includes stock or produce stolen by false pretences. No provision of Act 57 of 1959 contradicts such an interpretation. Any

 

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other interpretation of these words in secs. 11 (1); 11 (2), 2, 3 & 12 of this Act will have illogical results.

 

Steyn, S.C., in reply.

Cur. adv. vult.

Postea (November, 2nd).

 

RUMPFF, J.A.: The appellant in this case was charged in the magistrate's court at Colesberg on a charge of stealing 102 sheep by false pretences, alternatively with theft of 102 sheep, and further, in the alter­ native on a charge of stealing R798. He was convicted on the main count and sentenced to a fine of Rl00 or one month's imprisonment and a further four months imprisonment suspended for three years on certain conditions. On review the Supreme Court requested a report from the magistrate as to why a compensatory fine had not been imposed and thereafter remitted the case to the magistrate for the imposition of the fine. The magistrate ordered appellant to pay a compensatory fine of Rl,244, or in default of payment, to undergo imprisonment for three months. Thereafter appellant appealed to the Eastern Cape Division of the Supreme Court against his conviction and against the imposition of the compensatory fine. Hereupon the State gave notice that at the hearing of the appeal the Court would be requested to increase the imposed sentence. The appeal was dismissed and after the case had been referred back to the magistrate to give his reasons for the original sentence, the sentence was set aside and replaced by a sentence of two years' imprisonment of which 12 months were suspended on condition, that accused is not convicted of theft during that period. The amount of the compensatory fine was reduced to Rl,071. With the leave of the Court a quo appellant presently appeals to this Court against his conviction and the sentence imposed on him, as well as against the order imposing the compensatory fine.

 

Before l deal with the heads of argument, it is convenient to quote the charge sheet on the main count. The allegation therein is that appellant committed theft by false pretences:

 

"In that on or about 10th August, 1967, and at Haasfontein in the district of Colesberg, the said accused unlawfully, falsely and with intent to defraud, pretended to John Abie Pienaar, that he, the accused, was empowered to purchase one hundred and two sheep on behalf of the firm Unievleis at an amount of R12 each from the said John Abie Pienaar, and did by means of the said false pretence on the date and place as set out above, receive from the said John Abie Pienaar one hundred and two sheep, the property of John Abie Pienaar, which sheep the accused thereupon converted to his own use; whereas the accused, when he pre­ tended as set out above, well knew that he was not empowered to purchase one hundred and two sheep at Rl2 each on behalf of Unievleis from John Abie Pienaar, and did thus steal the said one hundred and two sheep."

 

As regards the conviction, it was conceded that, if it were proved that appellant had no authority from Unievleis Limited of Durban to purchase sheep on their behalf the evidence would show that he stole

 

256

 

the sheep in question, but it was contended that it can be deduced from the evidence as a whole that appellant bought the sheep on behalf of the firm Unievleis Limited of Germiston. It was argued that, because the State failed to lead evidence which shows that appellant did not have the authority of this company, it was not proved that appellant stole from complainant in the present case. The answer to this argument need not be sought in sec. 11 (2) of Act 57 of 1959, but in the evidence, and in any event it is necessary to determine, because of the compensatory fine which was imposed, whether the complainant or someone else was the owner of the sheep.

 

The charge sheet mentions the firm "Unievleis". No particulars about this firm were requested by appellant and the very first State witness was the manager of a firm Unievleis, Durban. He stated that appellant was employed by Unievleis Durban, during August, 1967 as an agent who canvassed stock on a commission basis only, to be marketed by Unievleis. According to this witness appellant had no authority to purchase stock on behalf of Unievleis, Durban. Under cross-examination this witness stated that during August, 1967 his firm was known as Unievleis/Union Meat Co. and that there was another firm in Germiston known as Unievleis Beperk. This evidence was not disputed and it was also not put to this witness that appellant was also employed by the Germiston firm. Complainant said in evidence that he had dealings with appellant before the present transaction, that appellant owed him R800 and that at the negotiations he had emphasised that appellant could buy the sheep, not personally but on behalf of Unievleis. According to him appellant undertook this and said that he would send the sheep to Durban. In his evidence in chief, complainant said "Accused had not the right to dispose of my sheep to anybody else but Unievleis Durban". He was not cross-examined about this and it was also not put to complainant that appellant was employed by the Germiston firm and that the sheep could have been purchased on behalf of that firm. Complainant did admit in cross-examination that at that time he had thought that Unievleis of Germiston and Unievleis of Durban were one business, and that after he had not received a cheque for the sheep, he had phoned a certain Welthagen in Johannesburg who was employed by Unievleis Germiston. In this connection the questions which were in fact put to complainant in cross-examination are enlightening as are those which were not put to him. The following questions were put to complainant: "………………………"

 

256 H

 

Not only is it put to complainant that appellant was in the employ of Unievleis Durban, but in addition no effort is made to put it to complainant that appellant was also employed by the Germiston firm. The wife of complainant stated that he spoke to appellant on 8th September, 1967, and that the following was said by appellant: “.................................................... "

 

257 A

 

This evidence of what was said after the transaction: and this was not attacked in cross-examination; strengthens the inference that appellant also intimated that he was buying the sheep on behalf of Unievleis. Durban, at the transaction between him and complainant.

 

Further corroboration is found in certain replies which were given by complainant's wife in cross-examination and which were not attacked. With reference to an allegation by appellant that the cheque for the sheep might be sent to a hotel the witness replied as follows: ".......... "

 

2S7 B

 

Appellant did not testify at his trial. At the end of the case as a whole the position was therefore a follow:

 

(i)There was uncontested evidence that appellant was employed by Unievleis Durban;

 

(ii)             after the relevant transaction appellant stated that he had sent the sheep to Unievleis, Durban:

 

(iii)            it was not put to any witness, and nobody stated that appellant had ever been employed by the Germiston firm or that he had given himself out as a representative of that firm;

 

iv) although complainant wrongly thought that the two firms were one business, there was no evidence that appellant bad given rise to this misconception on complainant's part.

 

In my opinion there is no justification whatsoever for deducing from these facts that there is a reasonable possibility that appellant, at this transaction, intimated to complainant that he was acting as agent for Unievleis, Germiston and that he did in fact act as such, or that Unievleis, Germiston. could have become the owner of the sheep. It was not necessary in my opinion. for the State to lead evidence that appellant had no authority from Unievleis, Germiston to buy the sheep on its behalf.

 

In its judgment on review the Eastern Cape Division found that sec. 15 of the Stock Theft Act, 57 of 1959 is applicable, inter alia, in the case of a conviction for theft, and that this offence is so broad in its ambit that it overlaps theft by false pretences, see S. v. Haarhoff, 1968 (3) S.A. 292 (e) at p. 293. The Court a quo identified itself with this point of view.

On behalf of appellant it was contended that this decision is wrong and that where reference is made to "theft of stook or produce" in sec. 11 (1) of the Act, the Legislator intended only simple theft to be under­ stood thereby and that no other form of theft could be included there­ under. It was suggested that "theft by false pretences" should be classified as fraud although it is recognised as an independent offence in practice, and that if the State should be free to charge with theft or fraud in respect of stock, arbitrarily, it could lead to unequal treatment. It was further contended that it can be deduced from the provisions of Act 57 of 1959 that the intention was that "theft" in sec. 11 only means simple theft.

 

258

 

It must be admitted that when facts constituting the offence of fraud can also be regarded as "theft by false pretences" in legal practice the distinction between the two offences may disappear, which could give rise to problems when dealing with the definition of the word "theft" as it is used in a statute.

 

It is clear that an owner can lose some of his stock by theft or by fraud. Apparently the Legislator did not intend to equate loss of stock by fraud with loss of stock by theft. Should this have been the intention one would have expected an indication thereof in the Stock Theft Act. In the Act sec. 12 does appear and it reads as follows:

 

"The provisions of this Act shall apply in every case where an accused is indicted, summoned or charged in respect of the theft of stock or produce, not­ withstanding the fact that this Act is not referred to in the indictment, summons or charge."

 

In this case these problems need not be dealt with because the facts show that what took place was substantially theft and not fraud. The fact that in this case false pretences were alleged and proved does not make it a case of fraud, but it remains theft because in any event the sheep were not given over to appellant in ownership, either person­ ally or as agent of Unievleis, Durban. In my opinion it was the inten­ tion of the Legislator that the word "theft" in sec. 11 of Act 57 of 1959 would include any form of what is substantially theft.

 

In conclusion it was contended that the sentence imposed, as amended, was excessively heavy. When the sentences prescribed by the Act itself are considered, together with the number of sheep stolen from complainant, it cannot in my opinion be said that the sentence is of such a nature that this Court should interfere.

 

The appeal is dismissed.

 

HOLMES, J.A. and RABIE, A.J.A., concurred.

Appellant's attorneys: Symington & de Kok, Bloemfontein.

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