ALF4861/001/2021

UNIVERSITY OF SOUTH AFRICA

Applied Law for Forensic Auditors

ALF4861

Year course

Department of Criminal and Procedural Law

Only study guide for ALF4861

2021-edition

Open Rubric
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© 2021 University of South Africa All rights reserved

Printed and published by the University of South Africa Muckleneuk, Pretoria

ALL RIGHTS RESERVED.

No part of this publication may be reproduced or transmitted, in any form or by any means
whatsoever, without the prior permission from the copyright holder(s).

Compiled by Adv HC Bezuidenhout 2013

Edited by Dr BJ Gordon 2019
Updated by Dr BJ Gordon 2021

Disclaimer:

The views expressed are those of the author. Please note that the author is not liable to any
person who acts on the views or material contained in this manual to his or her prejudice.

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CONTENTS

ORIENTATION

GENERAL INTRODUCTION

STUDY UNIT 1 THE SOUTH AFRICAN LEGAL SYSTEM

Topic 1.1 Classification and sources of South African law
Topic 1.2 The court system and Officers of the Court
Topic 1.3 Role-players (includes private investigative agencies)

STUDY UNIT 2 GENERAL PRINCIPLES OF CRIMINAL LAW

Topic 2.1 The consequences of an unlawful act
Topic 2.2 General requirements for criminal liability
Topic 2.3 Participation and accessories after the fact

STUDY UNIT 3 SOME SPECIFIC OFFENCES

Topic 3.1 Fraud
Topic 3.2 Forgery and uttering
Topic 3.3 Theft and related offences
Topic 3.4 Corruption

STUDY UNIT 4 THE LAW OF EVIDENCE

Topic 4.1 Nature of and types/classes of evidence
Topic 4.2 Documentary evidence
Topic 4.3 Oral evidence
Topic 4.4 Admissions and confessions
Topic 4.5 Hearsay evidence
Topic 4.6 Opinion and expert evidence
Topic 4.7 Privilege

STUDY UNIT 5 RECOVERY OF ASSETS

Topic 5.1 Recovery in terms of civil law remedies
Topic 5.2 Section 37 D (b) (ii) of The Pension Funds Act 24 of 1956
Topic 5.3 Forfeiture in terms of the Criminal Procedure Act, 51 of 1977 (and
other legislation)
Topic 5.4 The asset forfeiture provisions contained in the Prevention of
Organised Crime Act, 121 of 1998

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ORIENTATION

Dear Student

Welcome to this module of the Postgraduate Diploma in Forensic Auditing. We urge you to
read this orientation in detail. You will find that you need to refer to it as you progress through
the learning guide; this will definitely make studying this subject a lot easier.

This module ALF4861 – Applied Law for Forensic Auditors – will provide you with insight
into the relevant legal issues you need to be aware of when performing forensic audit
activities.

Purpose of this study guide

The purpose of this study guide is to introduce you to the various legislative requirements and
case law that illustrate certain core principles of this discipline. You need to be aware of
certain legal requirements before you can perform any kind of forensic investigation, or
assessment, or give advice to clients.

Link to other modules

As you know, this subject does not stand alone – it forms an integral part of the Postgraduate
Diploma in Forensic Auditing. In fact, this module is the “glue” that holds all modules in this
course together, since every aspect of forensic auditing includes some kind of legal
requirement which cannot be ignored.

Study guide

Although this study guide is very long, don’t despair!! Most of the information you have to
study for this module is contained in the study guide itself, which means that you do not
need to study very much in the way of additional prescribed material. You will not need to
study any case law in detail; you just need to know which case illustrates a certain principle.
Nor will you be required to study any Acts in detail, only the sections that we refer to in the
study guide. However, you do need to familiarise yourself with the core principles explained in
this study guide and, unfortunately, law is a subject that one needs to study. This is because
there are numerous theoretical aspects of the law which you need to have thoroughly
mastered before you can attempt to interpret any legislation in practice.

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In law there is often no right or wrong answer; it is all about interpretation. But that
interpretation still needs to be based on certain recognised legal principles, so you will need to
know all the rules to be able to argue both points of view.

Learning outcomes

The learning outcomes of each study unit will be discussed at the beginning of every study
unit. These learning outcomes give you an indication of what you need to know or be able to
do once you have studied the material.

Assessment questions

The assessment questions will give you an opportunity to apply the knowledge that you
have obtained in the study unit. Since this is a postgraduate course, the questions are
practical and you have to apply the theory to practice and show that you understand it.

Suggestions on how to approach your studies in this module

The learning units and the study guide will direct you on how to approach the learning and all
other resources; the learning units and the study guide will also give you guidance on how to
apply your mind to your studies and on how you can best use Unisa’s resources (e.g.
myUnisa, peer collaboration groups, learning centres and career counselling). As a
distance education student, it is important that you know whom to contact for academic
and administrative matters, and how to manage your time, etc.

In the study guide we make a definite distinction between the parts of the work that you have
to read and those parts that you have to study.

• Studying The sections that have to be studied are clearly indicated and form the basis
of assignments and formative assessment (examination). To be able to do the activities
and assignments for this module, to achieve the learning outcomes and to be
successful, you will need an in-depth understanding of the contents of the study
guide. You will also need to be able to apply this knowledge to your working
environment and society. In order to gain an in-depth understanding of the learning
material, you must, firstly, accept responsibility for your own studies. Secondly, learning
is not the same as memorising. You will be expected to show that you understand
and can apply the information, not just remember it.

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• Reading You will be required to simple read certain sections of the study guide. This
means that you should take note of the table of contents, because the table of contents
usually contains useful background information or offers another perspective or refers
to further examples. The table of contents will give you some context to your studies,
will improve your ability to take notes, and generally improve your understanding of
the study material. Please note that you will need to spend at least 240 hours on this
module. This includes approximately 40 hours of reading and studying, 80 hours of
activities and assignments, and 80 hours of examination preparation. We encourage
you to follow the proposed schedule for the allocation of time for the various topics,
learning units and other activities (see Learning unit 0).

You may wish to read more widely than just the study guide and the prescribed book.
When you read information in the prescribed book or in other sources you should not
simply accept it without question. Instead, we urge you to question the ideas and
information that you come across.

To test your understanding of the ideas that you learn about in this module, you
should try to apply them to real situations.

• Importance of completing activities, assignments and self-assessment questions

1. Assignments

Assignments for this module will be provided in your Tutorial Letter 101. The
completion of assignments is crucial to helping you achieve the learning outcomes. By
completing the assignments, you will get a feel for the type of question you can
expect in the examination and you will obtain first-hand feedback from the lecturer.
The assignment questions also give you the opportunity to apply the theory to a case
study or a practical situation related to your own workplace. For each assignment,
you will be informed of the purpose of the assignment and which module outcomes
will be assessed by the assignment. We will also supply the criteria for assessment
so that you can see how to apply your theoretical knowledge in a practical situation.
These criteria will also tell you what you must communicate in the examination in
order to achieve maximum marks.

Details of the assignments, assessment criteria and the format and requirements of
the examination are provided in Tutorial Letter 101.

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2. Assessment questions

At the end of each section you will find a list of possible assessment questions based
on the work done in that section. We advise you to work through these questions
diligently since this will help you to prepare for the examination. Self-assessment
plays a very important role in the mastery of learning outcomes and you should
therefore complete the self-assessment activities in the study guide. You will find most
of the answers to these questions in the learning material covered in the study guide
and prescribed book. It is our belief that you should not have any surprises in the
examination. It is therefore in your own interests to work through these assessment
questions carefully.

3. Assessment of the module

You will be assessed during the semester on your assignments and in the examination
at the end of the year. The assessment criteria are transparent criteria that are linked
directly to the module outcomes.

The compulsory assignment marks and examination mark will count towards your
total mark.

Further details of the assessment and examination requirements for this course are
provided in your Tutorial Letter 101.

We wish you all the best with your studies!

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Introduction

Focus of this module

For the purposes of this module, we will focus on some of the crimes and issues relating to
the investigation of crimes or other irregularities that an accountant, auditor or investigator
(from now on broadly referred to as a “forensic auditor”) may encounter in the course of his or
her work.

A forensic auditor may very well encounter a wide variety of criminal or irregular actions.
The list of issues discussed in this study guide is by no means exhaustive. The law is, in
fact, an evolving body of knowledge and a prudent student will keep abreast of all
developments in this field.

That said, the issues discussed in this study guide are important to any forensic auditor owing
to their prevalence and because ignorance of these issues may hamper or compromise an
investigation.

We will focus on some of the specific crimes that you are likely to encounter and we shall also
focus on how to ensure that the evidence used to prove these crimes is procured in a sound
and proper manner. With the advent of the Constitution of the Republic of South Africa
the procurement of evidence has taken on a new dimension. We will also briefly look at some
civil law issues. Most businesses are interested in recovering their losses and we therefore
need to know what tools are available to help them do just this.

Outline of the study guide

We have included 5 (five) study units in this guide.

Under each of the study units you will find various topics. Certain learning objectives are then
described. Where applicable, assessment questions will be asked at the end of each topic.
These are aimed at providing you with a general case study in which you can apply the
knowledge gained in the relevant topic.

These questions are followed by general assessment guidelines about the issues you
should consider when answering the assessment questions. Please note that these guidelines
should not be viewed as criteria that will be used in the marking of the examination paper. To
do well in the examination, you need to study the prescribed material and discuss the
relevant principles contained in this material.

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STUDY UNIT 1
THE SOUTH AFRICAN LEGAL SYSTEM

Learning outcomes:

At the end of this study unit, you will:

• have an understanding of the general background of the legal framework in which a
forensic auditor operates.
• have a general understanding of the way in which South African law is classified and
where, in that classification, the forensic auditor is most likely to work.
• know which legislative sources you can consult in order to find the answer to any
legal issue that you may encounter.
• have a knowledge of the Constitution and the provisions that apply to a fraud
investigation.
• be aware of the court structure within South Africa and know how the various
courts fit into that structure.
• be informed about the role-players within the South African law enforcement system.
• be informed about the roles they play and the functions and powers they have.
• know which body is the most appropriate to contact in a specific set of circumstances.

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TOPIC 1.1
Classification and sources of South African law

Definitions

Substantive law (also known as material law) determines the content and meaning of the
different legal rules. It therefore comprises the legal rules setting out the rights and duties of
subjects, or of the State.

Public law determines the extent of state authority. It deals with the relationship between the
State and its subjects, and between the organs of State. It involves four general areas:
constitutional law, administrative law, international law and criminal law.

Private law regulates the relationship between individuals as legal subjects. It determines the
rights and duties of private persons that can be enforced by or against them. Private law can
be further subdivided into the law of obligations (contract and delict), the law of succession
(wills and inheritance), the law of things (ownership of tangible and intangible objects) and the
law of persons and family.

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Criminal law: the different forms of conduct that are punishable are described by criminal law,
which also determines the requirements for each offence (crime). Since a crime is considered
as having being committed against society, and not only against the primary victim, the State
must prosecute and punish the perpetrator. Common law offences, as well as crimes created
by statutory law, form part of criminal law.

Procedural law (also known as formal or adjective law): regulates the manner in which the
rules of substantive law are enforced. For example, substantive law determines that fraud is a
crime, and sets the requirements for liability for fraud. Procedural law lays down the procedure
for the prosecution of the alleged fraudster. Procedural law can be subdivided into the law of
criminal procedure, civil procedure, evidence and legal interpretation.

Sources of South African law

The legal system of South Africa is not codified, and legislation is not the only source of
South African law. A particular area of the law may also have more than one source. For
example, criminal law originates in the common law, legislation, and judicial precedent. Unlike
criminal law, the law of criminal procedure has been codified in the Criminal Procedure Act, 51
of 1977.

1. The Constitution of the Republic of South Africa, 108 of 1996 (the “Constitution”)

Section 2 of the Constitution states that it is the supreme law of South Africa and all other
laws must be consistent with the Constitution. Provisions of any law that are inconsistent with
the Constitution can therefore be declared invalid.

Included in chapter 2 of the Constitution is the Bill of Rights. In terms of section 39(2) of the
Constitution, every court, tribunal or forum must promote the spirit and objects of the Bill of
Rights when interpreting legislation.

In terms of section 35(5) of the Constitution, evidence obtained in a manner that violates any
right in the Bill of Rights must be excluded if the admission of that evidence would
render the trial unfair or otherwise be detrimental to the administration of justice.

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The following is a summary of the rights that are protected:

SECTION OF THE
CONSTITUTION
9 Equality TITLE
10 Human Dignity
11 Life
12 Freedom and Security of the Person
13 Not to be subjected to Slavery, Servitude and Forced Labour
14 Privacy
15 Freedom of Religion, Belief and Opinion
16 Freedom of Expression
17 Assembly, Demonstration, Picket and Petition
18 Freedom of Association
19 Political Rights
20 Citizenship
21 Freedom of Movement and Residence
22 Freedom of Trade, Occupation and Profession
23 Fair Labour Practices and Other Rights in respect of Labour Relations
24 A Healthy Environment and the Protection thereof
25 Property
26 Housing
27 Health Care, Food, Water and Social Security
28 Children’s Rights
29 Education
30 Language and Culture
31 The Rights of Cultural, Religious and Linguistic Communities
32 Access to Information
33 Just Administrative Action
34 Access to Courts
35 Arrested, Detained and Accused Persons
36 Limitation of Rights
38 Enforcement of Rights

The following sections of the Constitution are particularly relevant to a forensic auditor in the
course of a forensic investigation, whether the envisaged outcome is of a criminal, civil or
disciplinary nature.

(a) Right to equality

Every person has the right to equal protection by the law. He or she may also not be
discriminated on the grounds of race, gender, sex, pregnancy, marital status, ethnic origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or

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birth.

(b) Right to dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

(c) Freedom and security of the person

As a result of the nature of a fraud examiner’s activities, the potential of encroaching on this
right becomes a real risk.

“12(1) Everyone has the right to freedom and security of the person, which includes the right-
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.”

As a result of this right, a person may not be detained or kept against his or her will.
However, if the person has already been arrested, that person’s movements can be lawfully
restricted.

(d) Privacy

One of the most frequent attacks against the admissibility of otherwise relevant evidence is
based on an allegation that a suspect’s right to privacy has been infringed. This is especially
so in the context of searches and seizures of a suspect’s property, the interception of his or
her communications, and also in the context of an interview. The relevant section reads as
follows:

“14 Everyone has the right to privacy, which includes the right not to have-
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.”

(e) Legal representation

In terms of section 35(2)(b) of the Constitution, everyone who is detained has the right to

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choose, and to consult with, a legal practitioner, and to be informed of this right promptly; and
to have a legal practitioner assigned to the detained person by the State and at the State’s
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly as per section 35(2)(c).

The phrase “detained” has been interpreted by the courts to mean that a person is entitled to
legal representation from the moment of arrest, as held in S v Melani 1996 (1) SACR 335
(E) at 348 (i).

This information should be imparted to any arrested person as soon as possible after his
arrest and certainly prior to his being invited or requested to participate in any proceedings in
which he may by word or deed incriminate himself. Also see S v Melani above at 347e and S
v Marx and Another 1996 (2) SACR 140 (W) at 148 f-i.

In S v Mathebula 1997 (1) SACR 10 (W) at 19 f – h, it was held that an accused person
should be entitled to legal representation at every important pre-trial stage. The presence of
an accused’s legal representative at such pre-trial procedures constitutes a “checking
mechanism” to ensure that an accused person’s other constitutional rights are safeguarded
during such pre-trial procedures. Pre-trial procedures include the making of any statement by
a suspect, and the pointing out of items and places which indicate that the suspect has
knowledge about the crime and so forth.

It is therefore clear that state organs such as the police should inform the suspect of his
rights of legal representation immediately upon arrest, or at any other stage that his
cooperation in the investigative process is requested.

What is the position of private forensic auditors or private persons?

The Constitution not only applies vertically between the State and its subjects, but also
applies horizontally between subjects of the State as well, as indicated in section 8 of the
Constitution, Act 108 of 1996.

Private citizens also have a power to effect a citizen’s arrest in certain limited circumstances.
A private person would not have to inform a suspect that he (or she) has a right to legal
representation unless that private person can be reasonably expected to have such
knowledge of the suspect’s Constitutional rights and thus be able to comply with the duty to
inform the suspect accordingly.

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In the absence of specific South African case law on this point, it is therefore recommended
that private investigators and forensic auditors who have investigative experience inform the
suspect of these rights in order to ensure that subsequent evidence so obtained be admissible
in a criminal trial.

At the same time it should also be remembered that, if a forensic auditor is still in the process
of gathering evidence, this does not mean that every person he encounters should be
treated as a suspect. It has been held (in S v Mthethwa 2004 (1) SACR 449 (E)) that a
suspect is someone “about whom there is some apprehension that she or he may be
implicated in the offence under investigation and whose version is mistrusted or disbelieved”.
Depending on the facts, a suspect might very well only be identified once the investigation has
reached completion.

If the anticipated proceedings will only take the form of disciplinary proceedings it would, in all
probability, not be necessary to warn the suspect about his or her right to legal representation.
The basis of this contention is that, as a general principle, an employee is not entitled to legal
representation at his internal disciplinary hearing, although he may be assisted by a member
of the trade union to which he belongs.

It therefore does not make sense to claim that an employee should be warned of a “right” to
be legally represented in the internal disciplinary investigation unless that institution allows
legal representation in its disciplinary code.

Note, however, that should the State wish to present the evidence thus obtained in the
absence of a legal representative, there is a real risk that such evidence would be excluded
from the trial.

(f) Right to remain silent

In terms of section 35(1) of the Constitution, everyone who is arrested for allegedly committing
an offence has the right:
“(a) To remain silent
(b) To be informed promptly
(i) Of the right to remain silent and
(ii) Of the consequences of not remaining silent.”

In S v Sebejan 1997 (1) SACR 626 (W), the Witwatersrand Local Division (Satchwell, J) held
that a suspect who becomes an accused is entitled to the fair pre-trial procedures which
includes the rights under section 25(3) of the Interim Constitution accruing to an accused

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when arrested. The rights in this section 25(3) correspond to the rights included under section
35 of the present Constitution. This view was also followed by the Cape Provincial Divisions
in S v Orrie and Another 2005 (1) SACR 63 (C).

The view that a suspect is entitled to be informed of his Constitutional rights despite
the fact that he is not an arrested, detained or accused person, was not followed in a number
of other High Court judgments such as S v Ndlovu 1997 (12) BCLR 1785 (N) where it has
also been held by the Natal Provincial Division that, since the appellant in that case made a
statement before he had been arrested or detained, it was not necessary to warn him of his
constitutional rights.

Likewise, in S v Van der Merwe 1998 (1) SACR 194 (O), the Free State High Court held
that there is nothing in the Interim Constitution which places an obligation on a police official
to warn a suspect of his constitutional rights before his arrest or detention. In this matter the
accused was charged with murder. The investigating officer testified that he had encountered
the accused at the crime scene. He asked the accused for an explanation, whereupon the
accused handed him a firearm and made an exculpatory report about the events leading
to the death of the deceased.

Exculpatory evidence means evidence that can clear you of blame, i.e. prove your
innocence.

Before the accused provided the report, the investigating officer had not realised that he was
talking to a possible suspect, and he therefore gave the accused no caution whatsoever.
However, after he had heard the accused's report, he cautioned him in terms of the Judges'
Rules, and arrested him. At no stage was the accused advised of his rights in terms of the
Interim Constitution, 1993.

At his trial his lawyers argued that his statement was not admissible in evidence because
his Constitutional rights had not been explained to him before he made the incriminating
statement. The accused objected to the admissibility of the evidence as to what he had told
the investigating officer.

The Court held that it had the discretion to admit evidence about the accused's report. Factors
that played a role in that regard included the fact that the investigating officer had been bona
fide unaware that the accused was a suspect when he asked him for an explanation, and no
pressure or influence had accordingly been exercised on the accused to impart information.
The Court therefore allowed the statement as evidence against him.

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The Natal Provincial Division in S v Langa 1996 (2) SACR 153 (N) also declined to follow the
Sebejan decision.

In the case of S v Mthethwa 2004 (1) SACR 449 (E), an Eastern Cape High Court decision,
the learned judge also agreed with the Ndlovu, Langa and Van der Merwe judgments
above (i.e. that the provisions of section 35 of the Constitution are not applicable to
suspects), but ruled that was not the end of the matter. In this case the accused had
been questioned and made a statement before the police had apprised him of his right to
remain silent. At that stage he had neither been an arrested nor was he an accused person.
The accused was, however, clearly a suspect.

Judges’ Rule 1 provides: “Questions may be put by policemen to persons who they do not
suspect of being concerned in the commission of the crime under investigation, without any
caution being first administered.”

Judges' Rule 2 provides: “Questions may be put to a person who is under suspicion where it is
possible that the person by his answers may afford information which may tend to establish
his innocence. In such a case cautions should first be administered.”

The court held that a suspect is therefore treated differently from a mere witness and is
entitled to certain protective cautions not afforded to a mere witness.

The court therefore ruled that the admission of the evidence would render the trial unfair and
would bring the administration of justice into disrepute and excluded the evidence.

Where the police are, however, unaware that the interviewee is a suspect and have
therefore bona fide failed to warn him of his rights, his consequent statement should be
admissible evidence. (See Van Der Merwe case above.)

It is therefore clear that the courts will evaluate the facts at hand in order to ascertain whether
or not the failure by a police official to apprise a suspect/ arrested/detained/accused person of
his rights before he made any statement should be condoned or not.

Should private persons mandated to investigate an offence by the complainant warn a

suspect of his Constitutional rights in terms of the said Judges Rules?

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The general rule is that such forensic auditor would have the same rights as the
complainant would have had, if the complainant had conducted the investigation himself. In
the employer-employee relationship, the following remarks are particularly appropriate:

1. An employer has an inherent right to protect his assets.

2. An employer may require any employee to provide an explanation relating to the
exercise of his duties and functions within the organisation and/or ensuing from those
duties.
3. Any unreasonable refusal by the employee to cooperate in this regard may
constitute misconduct on the part of the employee and disciplinary steps can be
taken against him (or her).
4. An employee has a right not to incriminate himself, in other words, not to make
admissions or confessions which may incriminate him in respect of an offence. If he
elects not to incriminate himself, his silence does not justify an adverse finding against
him in his subsequent trial. For the purposes of a disciplinary enquiry, his refusal to
give an explanation will, however, constitute a factor to be taken into account.

Example
An investigator is mandated by the university to investigate why the registration fees paid
by students do not reconcile with the bank deposits. There is a daily shortfall. Several
university employees receive the payments in the course of their duties and deal with the
monies after they have been received. The investigator starts by collecting information and,
for that purpose, conducts interviews with all employees. At this stage there are no suspects,
in other words, there are no reasonable grounds to suspect any particular employees of an
offence. There is therefore no duty on the investigator to explain the right to silence to any of
the employees. Should any of the employees fail to cooperate, such failure may constitute
misconduct.

The Bill of Rights binds private persons in certain circumstances in section 8(2) of the
Constitution. Section 8(2) of the Constitution will apply to the conduct of a private person only
to the extent that the proviso is applicable, taking into account the nature of the right and the
nature of the duty imposed by the right. This can only be determined by the factual context.

There will therefore usually not be a duty on a private person who has arrested a suspect to
inform him of his right to remain silent. If that private person is someone who is aware of, or
who can be reasonably expected to be aware of a person’s right to remain silent, there is
no reason why there should not be a duty on such a person to inform the arrested person
about his right to remain silent before such a person makes a statement.

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The Judges Rules are administrative guidelines to police officials and do not have the force
of law. See S v Ndlovu above at179h-i. It is therefore submitted that they cannot be binding
on private citizens.

The position therefore seems to be as follows: in the South Gauteng and Cape Provincial
Divisions (S v Orrie and Another 2005 (1) SACR 63 (C)), the constitutional pre-trial rights
under section 35 of the Constitution are extended to suspects as well. This will entail that
those private citizens who are aware of or who can be reasonably expected to be aware of a
person’s right to remain silent, have a duty to inform the suspected person about his right to
remain silent before such a person makes a statement.

In the other jurisdictions, such as Eastern Cape, Kwazulu-Natal and the Free State, the
constitutional pre-trial rights would not be applicable to suspects and the horizontal application
of the Constitution is irrelevant.

It only seems logical that private persons would not have a duty to explain the Judges
Rules to suspects, given the administrative nature of these rules.

It goes without saying that a ruling by the Supreme Court of Appeal or the Constitutional Court
on these issues would be welcomed.

If an accused was not made aware of his rights, his statement may be admissible in a
disciplinary inquiry or in civil proceedings, but may very well be found to be inadmissible in
criminal proceedings. It is therefore important to be clear about the objectives of the
investigation and to take into account the risk that, any statements made by the suspect that
he or she makes without first being informed of his or her rights, might be inadmissible
should criminal steps be instituted against the suspect.

(g) Privilege against self-incrimination

In terms of section 35(1)(c) of the Constitution, anyone who is arrested for allegedly
committing an offence has the right not to be compelled to make any confession or admission
that could be used in evidence against him or her.

This is a well-established rule in statutory and common law, as held in R v Camane

1925 AD 570 at 575 and is not restricted to only criminal or civil trial proceedings. See
Ferreira v Levin 1996 (1) SA 984 (CC).

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Contrary to the right to remain silent, the Constitution does not prescribe that a person
should be warned that he has a privilege not to incriminate him- or herself.

(h) Waiver

It is trite law that an adult person can waive his rights. Such a waiver is only possible if the
person was fully aware of his rights in the first place. Secondly, the waiver should be clear and
unequivocal.

In S v Wellem 1993 (2) SACR 18 at 30, the learned judge remarked: “The accused could only
validly waive their rights to the procedural safeguards in terms of the Act had they known of
such rights.”

The exclusion of evidence obtained in a manner that violates a constitutional right

In terms of section 35(5) of the Constitution, any evidence obtained in a manner that violates
any right in the Bill of Rights must be excluded if the admission of that evidence would render
the trial unfair or otherwise be detrimental to the administration of justice.

(i) Limitation of rights (section 36)

“(1) The rights in the Bill of Rights may be limited only in terms of law of general application
to the extent that the limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into account all relevant factors,
including:
(a) The nature of the right
(b) The importance of the purpose of the limitation
(c) The nature and extent of the limitation
(d) The relation between the limitation and its purpose and
(e) Less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law
may limit any right entrenched in the Bill of Rights.”

2. Common law

The South African common law can be described as a body of legal principles that has
developed over the ages. Our common law has its roots in Roman-Dutch law, but has also
been influenced by Anglo-Saxon (English) law, especially in the field of the law of evidence

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and procedure.

3. Statutory law

As the needs of South African society changed, it became necessary to enact legislation to
deal with changing circumstances. Legislation is enacted by Parliament as part of the
democratic process which involves laws being created in order to regulate society. All of
our common laws and legislation are subject to the South African Constitution.

4. Case law

Courts interpret our common law and statutory laws on a daily basis; indeed, this enhances
their legal certainty. In South Africa, there is also a system of judicial precedent which
entails that, when a higher court interprets the law in a certain way, the lower courts are
bound by that interpretation in their future judgments.

Read:

1. The Constitution of the Republic South Africa, 108 of 1996. A free copy of the
Constitution can be found at
[Link]
or [Link]
or [Link] .

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. Chapter 1 (p. 1-24).

Assessment activity 1

You are investigating a case where it is alleged that the suspect manipulated data/ information
stored in the complainant’s computer system/server. How would you establish that the
suspect has possibly committed an offence? (15 marks)

Guidelines for acceptable answers – Question 1

Discuss, illustrate and explain the relevant sources of South African law.

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The obvious possible offence is fraud (discussed in Study Unit 3, Topic 3.1 as a specific
offence), which is a common law offence. A prudent investigator would therefore research our
common law on this, as found in textbooks about criminal law, articles written in academic
journals etc.

This common law offence has also been interpreted by our courts and further research should
therefore be conducted by studying these court cases (case law), especially where similar
sets of facts have been considered by our courts. These cases can be found in a number
of law reports (e.g. the SA Criminal Law Reports, The SA Law Reports, The ALLSA Law
Reports, the Butterworths Constitutional Law Reports (“BCLR”) and online reports offered by
certain publishers such as JUTA and Butterworths Judgments-on-line (“JOL”) are a good
example of this.

If a constitutional matter is involved, the decisions of the Constitutional Court should also be
considered. And in the case of fraud this is indeed the case. See, for instance, S v Coetzee
1997 (4) BCLR 437(CC), where it was held that the reverse onus provision contained in
section 332(5) of the Criminal Procedure Act, 51 of 1977 was unconstitutional. (This provision
deemed a director or servant of a corporate body guilty of an offence for which the corporate
body is liable for prosecution, unless it is proved that he or she did not take part in the
commission of the offence or could have prevented it.)

Despite the fact that the suspect’s actions may amount to a common law offence, relevant
legislation should also be considered. The Electronic Communications and Transactions
Act, 25 of 2002, for instance, provides for certain specific offences (in addition to common law
crimes) that may apply in regard to the unauthorised access to or use of a computer
system.

A suspect’s conduct may therefore amount to the common law crime of fraud where a
person fraudulently gains access to the victim’s computer and from there transfers funds to
his own account and/or may be a substantive offence(s) in terms of section 86 of the said
Act. Also refer to Study Unit 4, Topic 4.2, for more information about the Electronic
Communications and Transactions Act.

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TOPIC 1.2
The court system and officers of the court

The South African court system

We have the following courts in South Africa:

1. The Constitutional Court

The Constitutional Court (“CC”), situated in Johannesburg, is the highest court in all
matters dealing with the interpretation, protection and enforcement of the Constitution. The
CC has the final jurisdiction to adjudicate on whether a law is constitutionally sound or not.
The CC is (as the Supreme Court of Appeal) usually not a court of first instance, and does not
hear or receive evidence that the other courts have not heard or received. All matters are
generally decided on the record of proceedings, except in the limited instances mentioned in
section 172 (d) of the Constitution of 1996.

2. The Supreme Court of Appeal

The Supreme Court of Appeal (“SCA”) is situated in Bloemfontein and may decide any appeal
against a decision or judgment by a High Court. The SCA therefore hears all appeals from
other courts on all matters other than those which fall within the exclusive jurisdiction of the
CC.

3. The High Courts

Next in the hierarchy are the High Courts, consisting of the courts seated at the places
referred to in the following schedule.

SEAT OF HIGH COURT NAME OF HIGH COURT

Bhisho Eastern Cape High Court, Bhisho
Bloemfontein Free State High Court, Bloemfontein
Cape Town Western Cape High Court, Cape Town
Durban KwaZulu-Natal High Court, Durban
Grahamstown Eastern Cape High Court, Grahamstown
Johannesburg South Gauteng High Court, Johannesburg
Kimberley Northern Cape High Court, Kimberley

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Mafikeng North West High Court, Mafikeng

Mthatha Eastern Cape High Court, Mthatha
Pietermaritzburg KwaZulu-Natal High Court, Pietermaritzburg
Port Elizabeth Eastern Cape High Court, Port Elizabeth
Pretoria North Gauteng High Court, Pretoria
Thohoyandou Limpopo High Court, Thohoyandou

The high courts, as a court of first instance, have jurisdiction to adjudicate on all matters. They
are (or should be) only approached with the most serious criminal or civil matters. Apart from
the fact that they can themselves adjudicate on matters as a court of first instance, they also
hear appeals and reviews emanating from the lower magistrates’ courts.

4. The magistrates’ courts

These courts are also sometimes referred to as the lower courts. Magistrates’ courts consist
of district and regional courts. Regional courts (at this stage) deal exclusively with criminal
matters of a more serious nature than the matters dealt with by district courts, and regional
courts also have higher penal jurisdiction. A district court is not bound by a decision of a
regional court.

General

The courts discussed above are regulated by legislation and corresponding rules. It is
important to consult that legislation in order to establish the geographical jurisdiction, the types
of matters (nature of offences, value of subject matter in dispute etc.) that can be heard
by these courts and the orders (including sentencing of offenders, forfeiture of items
involved/proceeds of ill-gotten gains etc.) which the specific court may make. Please note that
children in conflict with the law who are below 18 years are dealt exclusively by the Child
Justice Act, 75 of 2008, which came into operation in 2010. Child Justice Courts are ordinary
courts but the proceedings are less formal.

Officers of the court

Apart from the judicial officers (judges and magistrates) who preside in the courts, there are
also other officers of the court and functionaries who play an important role in relation to the
administration of the law, such as the National Prosecuting Authority (“NPA”), legal
practitioners and the Legal Aid Board (which will be discussed in more detail in Topic 1.3).

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Read:

1. Sections 165-170 of the Constitution of South Africa.

2. Read more about the different courts of South Africa:
[Link]
[Link]
[Link]
[Link]

Assessment activity 2

Mrs Ruth is arrested in Pretoria on the charge that she stole R680 000 cash from her
employer. The crime took place at the Cape Town branch of her employer’s business. Mrs
Ruth took the cash and deposited it into an account held at the Pretoria Central branch of
ABC Bank Ltd. From there she regularly and systematically withdrew all the funds and spent
the money on expensive clothes and gambling. Which court will have jurisdiction to try the
matter? (15 marks)

Guidelines for acceptable answers – Question 2

Discuss, illustrate and explain the various courts that may hear the case as set out in the study
material.

Consider that theft is a continuous offence (refer to Study Unit 3, Topic 3.3, for more detail
on the subject). This entails that an accused person’s trial can take place in the area of
jurisdiction where she was found to be in possession of the stolen articles (in this case,
money).

She can therefore be tried in Cape Town or in Pretoria. The prosecutorial authorities will
have to make the decision as to which court will hear the matter.

On the assumption that a Pretoria court will hear the case, you should further explain which of
these courts should conduct the trial. Take note that a district court may receive the
matter and deal with all issues that may lead to the eventual trial in a court with a higher
sentencing jurisdiction. This may include bail applications and other incidental issues. Can it
be only a magistrate’s court or can it be a high court or even the Constitutional Court?

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If it is a magistrate’s court, should it be a district or a regional court? Consider the penal

jurisdiction of the relevant courts as set out in the relevant legislation referred to. In this case
the prosecuting authorities or their representatives (prosecutors) will, in all probability, refer
the case to the relevant regional court.

Assessment activity 3

On the same set of facts referred to in question 2, assume that Mrs Ruth has been
convicted and sentenced by a regional court in Pretoria. She is unhappy with her conviction
and feels that there has not been sufficient evidence to convict her. Explain to which courts
she may appeal for relief. (5 marks)

Guidelines for acceptable answers – Question 3

On the assumption that no constitutional issue is at stake which needs clarification by the
Constitutional Court, the record of the lower court proceedings will be transcribed and the
matter will be placed before the High Court, North Gauteng (since the relevant trial court is
situated within its geographical area of jurisdiction). If the High Court dismisses her appeal
(in other words, rules that the regional court was correct in its finding that there was
sufficient evidence on which to convict her and/or that the sentence was appropriate), she
may approach the Supreme Court of Appeal, Bloemfontein. If this court dismisses her
appeal also, her legal remedies will be exhausted.

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TOPIC 1.3
Role-players (includes public investigative agencies)

The South African Police Service (“SAPS”)

The Constitution of the Republic of South African, 1996 (108 of 1996), specifically sections
205 to 208, lays down that the South African Police Service has a responsibility to:
• Prevent, combat and investigate crime.
• Maintain public order.
• Protect and secure the inhabitants of the Republic and their property.
• Uphold and enforce the law.
• Create a safe and secure environment for all people in South Africa.
• Prevent anything that may threaten the safety or security of any community.
• Investigate any crimes that threaten the safety or security of any community.
• Ensure criminals are brought to justice.
• Participate in efforts to address the causes of crime.

To fulfil the mission of the South African Police Service, all its members are subjected to a
Code of Conduct. The official Code of Conduct of the South African Police Service was first
introduced on 31 October 1997. The Code of Conduct is a written undertaking which each
member of the South African Police Service is obliged to uphold in order to bring about a
safe and secure environment for all people of South Africa. Every member of the South
African Police Service must make the Code of Conduct part of their code of life, principles
and values. See also the Code of Ethics for police members.

The Special Investigating Unit (“SIU”)

The Special Investigating Unit (SIU) is an independent statutory body that is accountable to
Parliament and the President. It was established by the President, conducts investigations
at his request, and reports to him on the outcomes. It receives its budget through the
Department of Justice and Constitutional Development.

The SIU was created in terms of the Special Investigating Units and Special Tribunals Act,
74 of 1996 (SIU Act). The SIU was initially headed by former Judge Willem Heath; Judge
Heath resigned in June 2001 after the Constitutional Court ruled that a judge could not head
the SIU. The SIU then formally ceased to exist.

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The President established a new SIU by Proclamation R118 on 31 July 2001. The SIU’s
primary mandate is to recover and prevent financial losses to the State caused by acts of
corruption, fraud and maladministration. The SIU also assists departments with systemic
improvements with a view to improving service delivery.

Where criminal conduct is uncovered by the SIU, it will bring the matter to the attention of its
partners, the Hawks, in the South African Police Service, as well as the National Prosecuting
Authority. It works closely with both bodies to ensure that there is an effective investigation
and prosecution. The SIU also works closely with the Asset Forfeiture Unit (AFU) in the NPA,
where its powers are more appropriate or effective in recovering the proceeds of crime.

The Directorate for Priority Crime Investigation (“DPCI”)

The DPCI is a specialised division that has been established by an Act of Parliament. The
Division consists of a Commercial Crime Unit, the Financial Investigation and Assets
Forfeiture Unit, the Organised Crime Unit, the Priority Crime Management Centre and Support
Services.

Its personnel are drawn from the Directorate for Special Operations (DSO). The Minister of
Police is responsible for appointing the Head of the Division, while the National Commissioner
is responsible for appointing the remainder of the personnel. Personnel appointed in the
division are subject to certain criteria, including security clearances.

The date of establishment of the DPCI was 6 July 2009 and the main functions of the DPCI
are to prevent, combat and investigate national priority offences and any other offence or
category of offences referred to by the National Commissioner. The division focuses on
serious organised crime, serious corruption, and serious commercial crime.

The purpose of the DPCI is to manage and coordinate the activities designed to prevent,
combat and investigate national priority offences and any other offence or category of
offences referred to by the National Commissioner.

THE DPCI’s main functions include:

• To render an effective and efficient priority crime investigation service in the South
African Police Service (SAPS), including the investigation of serious organised crime,
serious commercial crime, and serious corruption.
• To render an effective and efficient priority crime investigation service, including the
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investigation of serious organised crime.

• To render an effective and efficient commerce-related crime investigation service,
including the investigation of serious economic offences.
• To render an effective and efficient financial investigation and asset forfeiture service
in the SAPS.
• To conduct special investigations as directed by the National Commissioner or the
Head of the DPCI, subject to any policy guidelines issued by the Ministerial Committee.
• To render an effective and efficient national priority crime management centre service.
• To render an effective and efficient support service to DPCI personnel.
• To render an effective and efficient management information and strategic planning
service to the DPCI.
• To formulate procedures, guidelines, national policies and directives for the DPCI.

The Auditor-General (“AG”)

The Auditor-General of South Africa ("AGSA") was established in terms of section 181(1) (e)
of the Constitution of the Republic of South Africa, 1996, as a state institution supporting
constitutional democracy. The Constitutional functions of the AGSA are set out in section 188
of the Constitution and section 4 of the Public Audit Act, 25 of 2004 ("the PAA").

Visit the internet website of the Auditor-General (“AG”) for an overview of the AG, its
composition, vision and mission, as well as all applicable legislation.

Read:

1. South African Police Service

[Link]
2. Special Investigating Unit:
[Link]
3. Directorate for Priority Crime Investigation:
[Link]
4. Auditor General:
[Link]

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Assessment activity 4

Question 1

Mrs Ruth is arrested in Pretoria on a charge that she stole R680 000 cash from her employer.
The crime took place at the Windhoek, Namibia branch of her employer’s business. Mrs Ruth
took the cash and deposited it into an account held at the Pretoria Central branch of ABC
Bank Ltd. From there she regularly withdrew all the funds systematically and spent the
money on expensive clothes and gambling. Which court will have jurisdiction to try the
matter? (15 marks)

Guidelines for acceptable answers – Question 1:

Discuss, illustrate and describe the various courts that may hear the case as set out in the
study material. Also explain why these courts may hear the case.

Consider that theft is a continuous offence. This entails that an accused person’s trial can
take place in the area of jurisdiction where she was found to be in possession of the stolen
articles (in this case, money).

She can therefore be tried in Windhoek or in Pretoria. The prosecutorial authorities will
have to make the decision as to which court will hear the matter.

On the assumption that a Pretoria court will hear the case, you should further explain
which of these courts should conduct the trial. (Take note that a district court may receive
the matter and deal with all issues that may lead to the eventual trial in a c ourt with a
higher sentencing jurisdiction. This may include bail applications and other incidental
issues.) Can it be only a magistrate's court or can it be a high court or even the
Constitutional Court?

If it is a magistrate's court, should it be a district or a regional court? Consider the penal

jurisdiction of the relevant courts as set out in the relevant legislation referred to.

Assessment Question 2

On the same set of facts referred to in Question 1, assume that Mrs Ruth has been convicted
and sentenced by a regional court in Pretoria. She is unhappy with her conviction and
feels that there has not been sufficient evidence to convict her. Explain to which courts
she may appeal for relief. (5 marks)

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Guidelines for acceptable answers- Question 2:

On the assumption that no constitutional issue is at stake which needs clarification by the
Constitutional Court, the record of the lower court proceedings will be transcribed and the
matter will be placed before the High Court, North Gauteng (since the relevant trial court
is situated within its geographical area of jurisdiction). If the High Court dismisses her
appeal (in other words, rules that the regional court was correct in its finding that there
was sufficient evidence on which to convict her and/or that the sentence was appropriate),
she may approach the Supreme Court of Appeal, Bloemfontein. If this court also
dismisses her appeal, her legal remedies will be exhausted.

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STUDY UNIT 2
GENERAL PRINCIPLES OF CRIMINAL LAW

Learning outcomes:

At the end of this study unit, you will:

• appreciate the fact that conduct can have both criminal and civil law consequences.
• understand that any criminal conduct should meet certain requirements in order to be
classified as such.
• be able to discuss these said prerequisites and the forms they may take.
• have a knowledge of the various bases on which a person may be convicted of a
crime and apply such knowledge to a set of given facts.
• know when conduct may be criminally prosecuted as an attempt to commit an
offence.

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TOPIC 2.1
The consequences of an unlawful act

Crimes and Delicts

An act may cause harm to someone else, but may not necessarily be punishable by the
State. If a person accidently bumps and damages another vehicle, that person will not be
prosecuted by the State on a charge of malicious damage to property. Intention to cause
damage is required for the crime of malicious damage to property. Neither will he be
prosecuted on a charge of negligent driving since the Road Traffic Act, 93 of 1996, deals
with driving on a public road.

In the example above, the driver may be civilly liable (based on a delictual action) to
compensate the owner of the other vehicle for the harmful consequences of his actions,
despite the fact that he may not be criminally liable.

If, on the other hand, he intended to damage the other vehicle he may then be criminally
charged and, if found guilty, he will be punished by the State. In addition to this, the other
driver may institute a civil action against him to compensate the other driver for his losses. In
other words, the same action may have civil as well as criminal consequences.

For the purposes of this discussion, we will only concentrate on those actions that are
punishable by the State.

By concentrating on the criminal actions of an offender the impression should never be

created that civil remedies or actions are less important. On the contrary, for a number of
reasons, persons or businesses would rather institute civil actions to recover damages
suffered rather than report the offender to the State authorities with a view to prosecuting
him or her.

Lastly, it should also be remembered that, in the field of criminal law, certain actions may be
prohibited by specific legislation or in terms of a general body of law, called the common law
(discussed in Topic 1), which has developed through the ages and which forms part of
South African law. Theft, fraud and murder are some of the more well-known common law
crimes.

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Study:
1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 42-47.

Assessment activity 5

You are investigating a case of fraud. In this case, the suspect presented a cheque which
was returned by the bank because there were insufficient funds in the account. The
prosecutor declines to prosecute the suspect “because it is a case of a civil nature and the
complainant should institute civil actions to recover the funds. The State is not a debt-
collection agency”. Can you convince the prosecutor to change his views? (5 marks)

Guidelines for acceptable answers – Question 5

You can explain to the prosecutor that an action may have both criminal and civil law
consequences.

The fact that the complainant may institute a civil action to recover his funds should not
stand in the way of the institution of criminal proceedings.

As long as there is a provision in the criminal law (common or statutory) which prohibits the
conduct of the suspect and the evidence is sufficient to sustain a conviction, criminal steps
should be instituted against the suspect.

Whether the facts are sufficient to justify the prosecution of the suspect is a separate matter
which will influence the decision whether or not to institute criminal steps.

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TOPIC 2.2
General requirements for criminal liability

In order for someone to be criminally liable, the State must generally prove the following four
requirements:

You should be thoroughly familiar with these requirements and be able to discuss them in
terms of a practical scenario.

1. ACT OR CONDUCT

This may consist of a positive act or the failure to act (omission). An act does not relate to any
kind of act – it specifically relates to an act described in the definition of the crime which
the person is charged. If, for example, a person is charged with arson, the act required is
setting fire to a certain type of structure.

The act must be voluntary. An act is voluntary when a person has the ability to control his
bodily movements by his mind.

Some defences are available to a person who is charged with a certain act or omission. This
is why conduct by a sleep-walker or something done by someone suffering from an epileptic
fit will is not classified as legal “conduct”. In such cases, the person has not acted and is
therefore not criminally liable for his or her actions.

The most important defences are automatism and absolute force:

Automatism is a condition where a person acts in a mechanical way (e.g. a person has an
epileptic fit whilst driving a vehicle and a third party is injured). In such a case, it is possible
that he will not be criminally liable for his actions because his movements were not voluntary
and he had no control over his body. (Take note that, in this instance – an epileptic fit – the
driver will only be able to use this as a defence the first time it happens. He might be
charged with negligent driving or even culpable homicide if, in future, he fails to take action to
prevent this from happening again.)

Other examples of mechanical behaviour are reflex movements such as heart palpitations or a
sneezing fit, somnambulism (sleepwalking), muscular movements such as an arm movement

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while a person is asleep or unconscious or having a nightmare and the phenomenon of

“black-out”.

Absolute force relates to instances where the voluntariness of an act is excluded. For
example, Angela is slicing an orange with her pocket-knife. Brenda, who is much bigger and
stronger than Angela, grabs Angela’s hand and presses it, with the blade pointing
downward, into Carrie’s chest. Carrie dies as a result of the knife-wound. In this case Angela,
with her inferior physique, would have been unable to prevent the incident, even if she had
tried. This means that Angela performed no act. It was Brenda who performed the act.

A person performs an omission when he fails to act in circumstances where there is a legal
duty on him to act positively. An omission can only lead to liability if there is a legal duty on the
person to act and that person failed to do so. A legal duty can arise as a result of statutory law,
common law and even if the legal convictions of a community demand that there be such a
duty.

Did you know?

In the case of S v Mahlangu 1995 2 SACR 425 (T) 434-436, the court decided that there
was a legal duty on a filling station attendant to inform his employer of a planned robbery he
had knowledge of.

2. ACT MUST COMPLY WITH THE DEFINITIONAL ELEMENTS

The definitional elements of a crime are the concise description of the type of conduct
prescribed by the law and the applicable circumstances under which this type of conduct
constitutes a crime. The definitional elements of one crime will differ from another. The
definitional elements of a crime can prescribe what kind of conduct must be committed in
order for it to be a crime, but also the way in which the act must be committed. The
definitional elements of a crime include the person or object in respect of which the act must
be performed and also where the act must take place. For example, the definition of the crime
of “receiving stolen property” is:

“A person commits the crime of receiving stolen property knowing it to be stolen if he

unlawfully and intentionally receives into his possession property knowing, at the time that he
does so, that it has been stolen.”

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The elements of this crime would be:

• receiving
• stolen property, which takes place
• unlawfully and
• intentionally (which includes knowledge of the fact that the goods were stolen
property)

3. UNLAWFULNESS

The act must be unlawful. The question is whether the conduct infringes upon the legal
convictions of society. The term “legal convictions of society” is a legal term that is used to
identify how general society would react to the perpetrator’s conduct. For example, if X hits Y,
society would normally not condone such a violent act from X. However, if X hits Y because he
is defending himself from a prior attack from Y, then society would condone X’s actions,
because he is acting in “self-defence”. From this example it is evident that the legal
convictions of society will be determined by the particular facts of the case. This example also
illustrates that there are certain circumstances where a seemingly unlawful act will be
condoned, like where X was defending himself from a prior attack. These special
circumstances are known in law as “grounds of justification”. Thus, a seemingly unlawful act
will be condoned (and is not unlawful anymore) when a particular ground of justification is
present.

Our law has identified a number of grounds of justification. The grounds of justification are not
limited to the list below, but it is very seldom that a new ground of justification will be accepted
by the courts, so for our purposes we can accept that the list of grounds of justification found
below, is complete. The grounds of justification that a forensic auditor are more likely to
encounter are discussed in more detail in Study Unit 3, Topic 3.1, when the crime of fraud
is dealt with. The grounds of justification are:

• Necessity
o When a person causes harm to the legally protected interests of another
innocent party or the State in order to protect his or another person’s legally
protected interests against any imminent threat, he acts in necessity. For
example, your neighbour’s house is on fire and you have to break a window
to enter the house and save your neighbour. If you are subsequently charged
with malicious damage to property in respect of the broken window, you can
rely on necessity as a ground of justification for your conduct.

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• Private defence
o When a person causes harm to the interests of another person in order to
protect his own interests against an attack by the other person, he acts in private
defence. This is commonly known as self-defence. For example, X is attacked by
Y and X acts in private defence to protect himself.
• Consent
o When a person gives his consent, the recipient obtains a ground of justification
in law. For example, a professional boxer cannot accuse an opponent of assault,
or X does not commit theft if he takes Y’s car with his (Y’s) permission.
• Presumed consent
o Sometimes a person does not have actual consent, but it is presumed in law. If
X takes an unconscious Y to the hospital after an accident, Y cannot charge X
with kidnapping.
• Acting in an official capacity
o Official capacity is a valid ground of justification. An official whose duty it is to
confiscate items in terms of a court order does not commit theft.
• Acting on orders
o Acting on lawful orders constitute a ground of justification known as “acting on
orders”. Subordinates in the defence force and the police can rely on acting on
orders as a ground of justification for as long as they obey lawful orders.

Take note that each ground of justification has requirements which need to be met,
otherwise this defence might not be successful in court and a person could still be convicted
of a crime.

You should be thoroughly familiar with these requirements and be able to discuss them in
terms of a practical scenario.

“De minimus non curat lex.” This simply means that the law does not concern itself with
trivial matters. If an employee therefore takes an envelope from his employer for his own
private purposes, the court would in all likelihood acquit the accused person because of the
petty nature of the crime. On the other hand, theft of an envelope from a supermarket may not
be seen as trivial. Whether or not a matter is trivial depends on the facts.

4. CULPABILITY

The mere fact that a person has committed an act which corresponds to the definitional
elements of the crime and which is unlawful, is not sufficient to render him criminally liable.

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The person’s conduct must be culpable. By “culpability” it is meant that there must, in the
eyes of the law, be grounds for blaming someone personally for his/her unlawful conduct.

There are two sub-requirements or components of culpability that must be complied with
before one can draw the conclusion that a person’s act was culpable:

Firstly, the question should be asked whether the person committing a crime had the
mental capabilities required for criminal capacity.

Secondly, a person’s act must be either intentional or negligent.

(a) Criminal capacity

Criminal capacity: the mental ability to distinguish between right and wrong and act
accordingly.

A person must be able to appreciate the wrongfulness of his or her conduct and must have
the capacity to act in accordance with that appreciation. According to sections 77 to 79 of
the Criminal Procedure Act, 51 of 1977, mentally ill persons usually lack this capacity and may
therefore not be criminally liable for their actions.

There are certain common law limits for liability when determining criminal capacity of youths:
• An irrebuttable presumption that children under the age of 10 cannot be held criminally
liable for any conduct (i.e. they do not have criminal capacity).
• A rebuttable presumption that children between the ages of 10 and 14 do not have
criminal capacity (the onus is on the state to prove that the child had criminal capacity
at the time the offence was committed).
• Children over the age of 14 cannot rely on criminal incapacity as a result of their age
alone. (See s 7 of the Child Justice Act 75 of 2008).

When dealing with some of the more specific offences/crimes, we will again refer to some of
these general requirements.

Please take note that the criminal liability of corporate bodies is regulated by the provisions of
section 332 of the Criminal Procedure Act, 51 of 1977.

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(b) Intention/negligence

Intention (“dolus”)

Intention may be present in three forms:

• Dolus directus (person directs his or her will at causing the unlawful consequence)

• Dolus indirectus (person directs his or her will at consequence A, but

consequence B takes place; the unlawful consequence is an inevitable consequence of
his act, although it was not his main objective). For instance, he wants to defraud A but
defrauds A and B, knowing that it is an inevitable consequence to also defraud B.

• Dolus eventualis (person foresees the possibility of the unlawful consequence, but
reconciles himself or herself with this possibility and goes ahead with the act). For
example, X stands on a bridge above the highway and throws rocks onto the road
beneath him. X intends that these rocks should strike the vehicles passing by and
foresees the possibility that somebody might get injured or even killed as a result of his
actions, but he still continues. If one of the vehicles is struck by a rock and Y, the driver
of the vehicle, is killed, X has dolus directus in respect of the crime of malicious
damage to property and dolus eventualis in respect of the crime of murder.

For intention to be present, It is further required that a person must be aware that his or her
conduct is unlawful. Therefore, if X thinks that he is taking a coat which belongs to himself
but instead it belongs to somebody else who incidentally has the same type of coat, X cannot
be found guilty of theft. Also, if X is unaware that his conduct is prohibited by the law, he
cannot be convicted of a crime. For instance, if X takes a plant from a nature reserve and
he is honestly under the impression that his conduct is permissible, but in actual fact it is a
statutory crime, he cannot be convicted of this crime since he lacked intention.

The test in respect of intention is purely subjective. Since direct evidence of the
perpetrator’s mind is seldom available, the court usually relies on inferences drawn from the
surrounding facts and specifically the perpetrator’s conduct.

Negligence

In the case of only a few offences, it is not necessary to prove that the perpetrator acted
intentionally. He may also be liable if he acted negligently.

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In common law crimes, the required form of fault is that of dolus (intent). However, for
culpable homicide, negligence is the required form of fault. There are however some statutory
offences for which negligence is sufficient in order to secure a conviction. The wording of
the specific section should make it clear that a lesser standard of fault would suffice.

Test for negligence

In order to determine if a person has acted negligently the following test is used:

1. Would a reasonable person in the same circumstances as the perpetrator have

foreseen that certain consequences might result from his act or failure to act?
2. Would the reasonable person have guarded against these possible consequences?
3. Did the perpetrator’s conduct deviate from what a reasonable person would have done
in the circumstances?

If the answer is “yes” to all of these questions, then the conduct (or failure to act) was
negligent.

The “reasonable person” rule is an objective standard of what is reasonable in the specific
circumstances. If a person is an expert in a specific field, his or her conduct will be measured
against that of the reasonable expert in the specific field. The standard for a child would be
much lower than the standard used for an adult in similar circumstances.

Strict Liability

Our law acknowledges the concept of “strict liability”, where a perpetrator is held liable even
though neither intention or negligence has been proven. This concept applies only to
legislation and not the common law. It is an extremely controversial topic in our constitutional
democracy, and it may be argued that strict liability is completely unconstitutional, although the
matter has not dealt before the constitutional court yet.

Note that the requirements for criminal liability must be proved by the state in the exact
chronological order set out above. Therefore, the state must first prove that the accused
had performed an act; then the state must prove the requirement of compliance with the
definitional elements; then the requirement of unlawfulness and finally the state must prove
the requirement of culpability.

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Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. Chapter 3 (p. 48-88).

Assessment activity 6

A is employed as an accountant. Part of his duties is to approve payments for services

rendered to his employer. A approves a payment of R50 000 to B, knowing that B has not
rendered any services to B’s employer, and that the invoice submitted by B is fictitious. A
admits all the allegations against him, but claims that B, who is a member of a crime
syndicate, threatened that he would kill A’s mother if A did not approve the payment. Is the
defence of “necessity” available to A?

(a) Was any legal interest of A threatened?

(b) Was A’s conduct reasonable in the circumstances? Could he have averted the threat
in another way? (10 marks)

Guidelines for acceptable answers – Question 6

Did A perform an “act”? Do his actions fall within the ambit of the defence of necessity?
Refer to Study Unit 3, Topic 3.1.

(a) A legal interest should be under threat - in this case A’s mother’s bodily integrity
and possibly her life.
(b) The danger should be imminent – in this case A’s mother was not in imminent
danger as B only (allegedly) threatened to kill her;
(c) The actions resorted to must be necessary to prevent the danger from taking place.
If the danger can be avoided by taking other preventive steps, then the actions (of
committing the offence of fraud) would not be “necessary”. Couldn’t A have alerted the
authorities or even his employer?
(d) The prejudice that his actions brings about (as a result of his fraud) must be in
relation to the legal interest that he seeks to protect (prevent bodily injury/death). In
this case, the requirement would be met since a life is more important than mere
financial loss.

In the end, the court will have to evaluate whether it was objectively reasonable to act out of
necessity. Since, especially, requirement (c) has not been met, it is unlikely that A’s defence
will succeed.
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Assessment activity 7

Mr A is the procurement manager of BCor Ltd. He is approached by one of the entities

which submitted a tender to refurbish BCor with a proposal to arrange that one of the other
bidder’s (Bongo’s) tender documents not be placed before the members of the tender
committee (which approves the award of the contract to the eventual successful bidder). In
exchange, he will be paid an amount of R20 000. He accedes to the request since he knows
that Bongo’s quote was so high that they would in any event not have succeeded in winning
the contract. Mr A is subsequently charged with corruption and fraud. He pleads guilty to
corruption. In respect of the fraud charge he admits that he misrepresented the true state of
affairs to the tender committee. However, he maintains that he thought that the tender would
in any event not be awarded to Bongo, and that BCor was not prejudiced in any way.

Can he be convicted of fraud in these circumstances? (20 marks)

Guidelines for acceptable answers – Question 7

The state does not have to prove that Mr A had committed an act that complies with the
definitional elements of the offence since he has admitted that he had made a
misrepresentation. The only issue in dispute is whether he had the necessary intention to
commit fraud.

One of the elements that the State would have to prove in order to succeed in bringing a
charge of fraud is that Mr A had the necessary intention to defraud and to cause prejudice.

The three variants of intention should be discussed in relation to this set of facts.

It is clear that he had the direct intention to defraud (arranged for Bongo’s tender documents
to disappear).

It is arguable whether he had the necessary intention to cause prejudice. On the one hand,
his dominant intention may have been to commit an act of corruption and he may have
thought that, since Bongo was never in contention when the awarding of the tender was
discussed, BCor could not have been prejudiced. This view probably disregards the fact that if
a person foresees the possibility of the unlawful consequence, but reconciles himself or
herself with this possibility and goes ahead with the act, he acts intentionally (dolus
eventualis).

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In this case, Mr A must have (as opposed to should have!) known that there is always a
possibility that his actions may have caused prejudice to BCor (there could be valid reasons
for them to accept a tender, despite the relative high quote; for business reasons they may
have wanted to know who all the tenders were, etc.). The tender committee was also misled
to believe that the tender process was regular and that all requirements had been met.

His actions were in any event directly intended to cause prejudice to Bongo.

The court will therefore consider all the facts placed before it to make a finding as to whether
or not Mr A intended to defraud BCor. In these circumstances it seems likely that he will be
convicted.

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TOPIC 2.3
Participation and accessories after the fact

There are three types of people who can be involved in the commission of a crime.

Perpetrator

A person is a perpetrator if
(a) “his conduct, the circumstances in which it takes place (including where relevant,
a particular description with which he as a person must, according to the definition of
the crime, comply) and the culpability with which it is carried out are such that he
satisfies all the requirements for liability contained in the definition of the crime; or
(b) although his own conduct does not comply with that required in the definition of a
crime, he acted together with one or more persons and the conduct required for a
conviction is imputed to him by virtue of the principles relating to common purpose.”

Liability based on the doctrine of common purpose

It is important to note that a person may be criminally liable even though he himself did not
physically commit the crime. In order to overcome the problem in proving whose actions
actually caused the deceased’s death in cases where a number of persons assaulted the
deceased, but it cannot be proven beyond reasonable doubt as to who delivered the fatal
blow, the courts developed a so-called “common purpose” doctrine. Proof of common purpose
is usually determined on the basis of either:

1. prior agreement, and/or

2. active association.

The gist of this doctrine was summarised as follows in the case of S v Mgedezi 1989 (1) SA
687 (SCA).

In the absence of proof of a prior agreement, an accused who was not shown to have
contributed causally to the killing or wounding of the victims can be held liable if certain
prerequisites are satisfied.

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In the first place, he must have been present at the scene where the violence was being
committed.

Secondly, he must have been aware of the assault on the victims.

Thirdly, he must have intended to make common cause with those who were actually
perpetrating the assault.

Fourthly, he must have manifested his sharing of a common purpose with the perpetrators
of the assault by himself performing some act of association with the conduct of the others.

Fifthly, he must have had the requisite mens rea (intention) in respect of the killing of the
deceased, he must have intended them to be killed, or he must have foreseen the
possibility of their being killed and performed his own act of association heedless of whether
or not death would ensue.

This doctrine has since been applied on a regular basis for other crimes such as robbery
and to a lesser extent for crimes such as theft and fraud.

Accomplice

“A person is guilty of a crime as an accomplice if, although he does not satisfy all the
requirements for liability contained in the definition of the crime and although the conduct
required for a conviction is not imputed to him by virtue of the principles relating to common
purpose, he unlawfully and intentionally engages in conduct whereby he furthers the
commission of a crime by somebody else.”

Perpetrators and accomplices can jointly be described as participants.

Accessory after the fact

“A person is an accessory after the fact to the commission of a crime if, after the completion
of a crime, he unlawfully and intentionally engages in conduct intended to enable the
perpetrator of, or the accomplice in, the crime to evade liability for his crime, or to facilitate
such a person’s evasion of liability.”

Direct and Indirect perpetrators

If Mr A sends Mr B to commit an offence and Mr B indeed commits the offence, Mr A would

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also be guilty as a co-perpetrator of the offence. Mr A is called an indirect perpetrator and

Mr B a direct perpetrator. They are both co-perpetrators for the purpose of liability since
each person’s conduct complies with the definitional elements of the offence. This is however
not the case in respect of crimes which a perpetrator can only commit by making use of his
own body such as rape and other crimes which has sexual penetration as an element. Other
crimes which cannot be committed by making use of another person includes perjury and,
bigamy. If a person (X) however assisted another person (Y) to commit these types of
offences (for example, rape) then X can be convicted of being an accomplice to the rape.

If X procures the services of Y to commit fraud on X’s behalf, both can be convicted of fraud if
Y indeed commits the fraud. Both are then perpetrators.

In S v A 1993 (1) SACR 600 (A) a policeman was indeed convicted of indecent assault and
crimen iniuria despite the fact that he himself did not physically take any part in the crimes
but instructed the victim to commit indecent acts on himself.

Example
A common example is where A hires B to commit murder. B stabs the deceased to death
while A is not near the scene of the crime. The law does not differentiate between the actions
of A and B. Both of them are perpetrators of the crime of murder. B is seen as the instrument
with which A commits the murder. If the intermediary, B, is acquitted, it makes no difference to
the liability of A. His liability is not dependent on B’s liability. See the case of R v Parry. A hired
B to commit a murder. The court acquitted B since he was mentally ill and could not stand
his trial. A argued that his liability depends on B’s liability and if B is acquitted there is no basis
for A to be convicted. The Court held that A’s “guilt results from his own act and his own
state of mind”. A was not charged as an accomplice, but as a perpetrator in his own right.

Conspiracy and incitement

To conspire with another person to commit an offence is in itself an independent offence in

terms of section 18 (2) (a) of the Riotous Assemblies Act, 17 of 1956. The following
principles are important here:

• There must be an agreement between at least two people. The idea is often expressed
in the statement that there must be a “meeting of the minds”.

• It is not necessary for the individual conspirators to have been in direct communication
with each other, and it is also not necessary for the one conspirator to know the
identity of all the other conspirators. However, he must be aware of their existence.
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Communication between individual conspirators can also be inferred from prior or

subsequent acts to the actual conspiracy.

• The terms of the agreement may vary from time to time as long as the aim(s) of the
conspiracy basically remains the same.

• The means by which the object of the conspiracy is achieved are not decisive. For
example, if A and B decide to kill C by stabbing him with a knife, it will make no
difference if B thereafter killed C by shooting him with a pistol. A will still be criminally
liable.

• A person who joins an unlawful organisation, well aware of the organisation’s illegal
purposes and then confirms his agreement with these illegal aims, will be liable as a
conspirator to the various offences that the organisation thereafter commits. See S v
Twala 1979 (3) SA 864 (T).

• In terms of our common law, the acts and declarations of one conspirator in the
furtherance of its common object are admissible against the other conspirators, despite
the hearsay nature of these acts and declarations. See S v Du Toit 2004 (1) SACR 66
(T). In this case, the acts of some of the conspirators were held as being admissible
against the other conspirator despite the fact that he was in prison at the time and may
have been unaware of the these acts.

• Usually a charge of conspiracy will be utilised if there is no proof that the completed
offence was committed. See S v Moumbaris 1974 (1) SA 681 (T) in general with
regard to conspiracy.

It is also an offence to procure or to incite someone else to commit an offence or to aid

someone in that regard as per section 18 (2) (b) of the Riotous Assemblies Act, 17 of 1956.
The relevant sections read as follows:

“18(2) Any person who-

(a) conspires with any other person to aid or procure the commission of or to commit; or
(b) incites, instigates, commands, or procures any other person to commit, any offence,
whether at common law or against a statute or statutory regulation, shall be guilty of
an offence and liable on conviction to the punishment to which a person convicted of
actually committing that offence would be liable.”

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Attempt

When investigating a matter, it must also always be kept in mind, that although a person did
not complete the crime, his actions may nevertheless be punished if it constituted an
attempt to commit the crime.

This principle is well-entrenched in our common law. If a person attempts to commit a

common law crime, he can be convicted of an attempt to commit the said crime (e.g.
attempted fraud, murder, robbery etc.).

On the other hand, if a person contravenes a statute or a statutory regulation his conduct is an
offence in terms of section 18 (1) of The Riotous Assemblies Act 17 of 1956. The relevant
section reads as follows:

“18(1) Any person who attempts to commit any offence against a statute or a statutory
regulation shall be guilty of an offence and, if no punishment is expressly provided thereby
for such an attempt, be liable on conviction to the punishment to which a person convicted
of actually committing that offence would be liable.”

Actions will constitute an attempt (to commit a common law crime or in terms of section 18
of the Riotous Assemblies Act) if they go beyond a mere act of preparation to an act of
execution. It is not necessary for a person to execute any number of acts before he is
criminally liable - but he must at least do something that can be seen as a step that can be
described as an act of execution.

On the other hand, the mere thought of or intention to commit a crime is not an act of
execution.

The principle can be described by the following example: a person was shown certain stolen
items by the original thief and was busy considering whether or not to buy the items when
he was arrested by the police. In this case, his actions (inspecting the items and
considering whether to buy same) were not seen as acts of execution and he was acquitted.
See R v Croucamp 1949(1) SA 377 (A).

The following factors are usually taken into account in order to determine whether an act
reached the execution stage:

(a) The physical proximity of the accused to the commission of the offence.
(b) The stage at which his actions reached in relation to the expected complete offence.

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(c) The extent to which he remained in control.

(d) Whether the accused still had some time or opportunity to reconsider. See R v
Schoombie 1945 AD 541.

The following forms of attempt are criminally punishable:

Completed attempt

The accused did everything that he could to commit the offence, but the offence was
nevertheless not completed. For example, where the suspect forwarded a letter or e-mail, in
which he makes certain misrepresentations with the intent to defraud, to another person he
should still be convicted of attempted fraud despite the fact that the communication did not
reach the intended victim. See S v Laurence 1975 (4) SA 825 (A).

Interrupted attempt

The accused is disturbed by external factors from completing the offence. For instance, if he is
arrested whilst trying to draw cash at the Automated Teller Machine (ATM) using a stolen
card.

Voluntary withdrawal

Although a person abandons the intended offence, or decides not to go through with it, he still
commits an offence of attempt if his actions can be considered as an act of execution and not
merely an act of preparation. See R v B 1958 (1) SA 199 (A)

For instance, if the pleas for mercy of the victim of a robbery persuades the robber to let her
go without taking her pension money, the robber only abandons his offence when he has, in
fact, started to execute this offence.

Impossible attempt

Where the suspect uses impossible means (e.g. he labours under the wrong impression that
he used poison in the victim’s coffee whereas it turn out to be an innocuous substance), or if it
is impossible to commit the offence in respect of the object of the intended offence (e.g. he
shoots at an animal whilst thinking that it is the human object of his murderous intention or if
he sells pieces of glass thinking that he is dealing with uncut diamonds), he or she can still be
convicted of attempting to commit the relevant offence.

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In R v Davies 1956 (3) SA (A), it was held that one exception to this rule is when a person
thinks he commits a crime whereas in law it is no crime - in these circumstances he cannot
be guilty of attempt to commit a crime. For example, X thinks that it is a crime to commit
adultery. If he commits adultery he cannot be found guilty of a crime. However, he may be
found guilty of attempt to commit a crime if he had only made a mistake as regards to the
facts. Another example: A person (A) cannot steal immovable property. If A moves the fences
of his farm so as to encroach on his neighbour’s property, he may think (because by a
mistake of law) that he “stole” some of his neighbour’s land. It is however not theft and neither
can he be guilty of attempted theft since it is simply not possible to steal immovable
property. What A was aiming at was not a crime and an endeavour to achieve the result
cannot constitute an attempt to commit the crime.

In the Davies case, a doctor was performing an abortion (a crime at the time), but the foetus
was already dead. In terms of the definition of the crime of abortion, the foetus had to be
alive. As such, the doctor could objectively not be guilty of the crime of abortion, but could be
found guilty of an attempt to commit abortion. He had believed that the foetus was still alive
and had therefore made a mistake with regards to the fact. His conduct is regarded as
blameworthy because of his subjective state of mind.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 98-104.
2. Joubert, Applied Law for Police Officials 2018 5th ed. p. 96-98.
3. Joubert, Applied Law for Police Officials 2018 5th ed. p. 90-95.

Assessment activity 8

John decides to steal money from his employer’s safe. On the Monday he removes the safe
keys and arranges for a copy of these keys to be cut. On the Tuesday evening, after work,
he enters the office where the safe is located. He opens the safe with the key but, as he is
about to take the cash, somebody walks into the office and John ducks and hides behind a
desk. He then closes the safe and runs away. The next evening he returns to the safe, he
opens the safe and counts the money. He puts the money in his pocket but, as he reaches
the door, he realises that it is not right to steal the money and places it back into the safe.
On Thursday evening he returns once again to the scene. He opens the safe and takes a bag
from the safe. He opens the bag at his home, but to his dismay discovers that the bag only
contains worthless pieces of paper.

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Can he be convicted of attempted theft? (15 marks)

Guidelines for acceptable answers – Question 8

Discuss the principles relating to attempt, as mentioned above.

1. The events on Monday

Based on the discussion above, it is arguable that the mere fact that John cut himself a copy
of the safe keys may in itself be an act of execution.

The fact that he intended to commit a crime does not in itself constitute an attempt to
commit the crime.

Consider the following factors to conclude whether or not he reached the execution stage:

• The physical proximity to the commission of the offence – here John was nowhere
near the safe containing the money.
• The stage his actions reached in relation to the expected complete offence –
consider whether or not he still had to do a number of things before he could succeed
in stealing the money.
• The degree to which he remained in control – at that stage he was still in control and
could decide whether or not he should enter the office, open the safe and remove the
money.
• Did John still have some time or opportunity to reconsider the theft? In this case, at this
specific stage, he had ample time to reconsider his actions.

It is therefore arguable (remember that the onus is on the State to prove this beyond all
reasonable doubt) that the mere copying of the safe keys can be classified as an act of
preparation, and not as one of the first steps taken to execute the theft which is
required for a conviction of attempted theft.

2. The events on Tuesday

Once again consider the relevant factors.

Here he was present at the place where he intended to commit the crime. He was there
after hours and he actually opened the safe. His actions can surely now be described as steps
in the execution phase of the crime and not mere acts of preparation.
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On Tuesday his conduct was interrupted and it may therefore be argued that he should still be
guilty of attempted theft. On the other hand, one may argue that since he had not yet taken
the money from the safe, he had not yet performed an act of execution and could therefore
not be convicted of attempted theft.

3. The events on Wednesday

If the events on Monday and Tuesday are compared with the events on Wednesday, it should
be clear that he took all necessary steps to execute the theft. However, as we saw, he
voluntarily withdrew from committing the crime.

It is also arguable whether the fact that he had already removed and assumed control over the
cash elevates his conduct to that of theft in itself.

Courts often have to deal with this question in cases of theft from self-service shops where
the offender who concealed the stolen article under his clothing is apprehended before he
passes through the check-out point. If John had not removed the cash but had entered the
office and opened the safe with intent to steal, and then had a change of heart, it could
nevertheless be argued that his conduct was an act of execution and that the voluntary
withdrawal did not exonerate him.

4. The events on Thursday

Once again, from John’s side, he did everything that was necessary to steal.

The fact that he had stolen something so worthless that it was not really capable of being
stolen suggests that he laboured under a misapprehension regarding the nature of the object
of the crime (and not whether it is a crime or not to steal). Based on the discussion above,
he should also be convicted of attempted theft regarding the events of the Thursday evening.

Assessment activity 9

Mr A and Mr B plan to defraud their employer (X) by creating a fictitious supplier, X Ltd, and to
“pay” X Ltd with the employer’s funds. Mr B thereafter approaches his friend, Mr C, with the
same plan. He tells Mr C about the plan that he and Mr A devised. Mr C informs Mr B that
he is keen to participate and that he will submit a false invoice on behalf of the fictitious
supplier as long as he gets 20% of the profit. Mr B tells Mr A that he has approached
someone else who agreed to submit a false invoice on behalf of the fictitious employer.
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However, he does not tell him who this person is.

Before they can continue with their plans, Mr B’s girlfriend, who is in actual fact in love with Mr
X (the employer), and who has knowledge of all these plans, tells Mr X about the
intended fraud.

Can Mr A, B and C be convicted of conspiracy to commit fraud? (5 marks)

Guidelines for acceptable answers – Question 9

Based on the aforesaid principles it should be clear that Mr A, Mr B and Mr C can be

convicted of conspiracy to commit fraud.

These principles will now be discussed:

Mr A and Mr B had entered into an agreement to commit fraud. Mr B and C had also
entered into an agreement to commit [Link] is not necessary for all the individual
conspirators to have been in direct communication: in this case Mr A and Mr C were not in
direct communication with each other but they knew of each other’s existence. The
conspiracy can also be inferred from prior or subsequent acts to the actual conspiracy.

A number of cases also illustrate the principle that a person who joins an unlawful
organisation, well aware of the organisation’s illegal purposes and then signifies his
agreement with this illegal aims will be liable as a conspirator to the various offences that
the organisation thereafter commits.1 Although we do not have a formal organisation at
hand in our set of facts, the principle can also be applied here. Mr C joined the conspiratorial
agreement at a later stage. This should not matter as he nevertheless formed part of the
conspiracy. In terms of our common law, the acts and declarations of one conspirator in
furtherance of its common object are admissible against the other conspirators, despite the
hearsay nature thereof. This means that whatever Mr B and Mr C discussed when planning
the fraud, can be used as admissible evidence against Mr A.

Assessment activity 10

John is an accountant in the employ of a hardware chain of stores. On a specific day, the
manager of the group informs John that the group is in financial difficulty and he should create
fictitious entries in the books of the group in order to create the impression that the group’s
turnover has increased whereas, in fact, it has actually decreased. John does as he is told. A
few months afterwards, the auditors detect the fraud. John is in trouble, but what about the

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manager, who alleges he did not do anything? (5 marks)

Guidelines for acceptable answers – Question 10

The manager should also be convicted of fraud on this set of facts. He is an indirect
perpetrator. Both John and the manager are co-perpetrators of the crime of fraud.

Even if John is acquitted for some reason or the other (for instance, if the court finds that
John was mentally ill at the time that he committed the crime and lacked the mental capacity
to appreciate the wrongfulness of his actions), the manager may still be criminally liable.

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STUDY UNIT 3
SOME SPECIFIC OFFENCES / CRIMES

Learning outcomes:

At the end of this study unit, you will

• be able to distinguish between the various crimes that we will discuss in this study
unit.
• have a knowledge of the specific elements - of the various offences - that the State
(prosecutor) should prove in court in order to secure a conviction.
• be able to appreciate the legal complexities or problem areas involved in these
specific offences
• be able to discuss these legal complexities or problem areas and apply the relevant
principles on any given set of facts.
• have a broad understanding of the concept of “identity theft” and the measures that can
be taken to curb its incidence.
• know when a person has a duty to report criminal conduct.

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TOPIC 3.1
Specific Offences

The following summary illustrates five main categories of offences. It also highlights some of
the main offences which fall under these categories. For the purposes of this module, we will
only focus on the three specific offences contained in item number 5 “Crimes against
property” relating to fraud, forgery and uttering. The summary is provided to give you an
understanding of the bigger picture of criminal law, and where the forensic auditor fits into this
picture.

Did you know?

The words “offence” and “crime” are synonyms. So, if mention is made to an offence, and at
another point the word “crime” is used, you can be assured that it refers to the same thing.

List of selected offences

1. CRIMES AGAINST THE STATE

• High treason
• Sedition
• Public violence

2. CRIMES AGAINST THE ADMINISTRATION OF JUSTICE

• Contempt of court
• Defeating or obstructing the course of justice
• Perjury
• Subornation of perjury
• Making conflicting statements under different oaths
• Making false statements in an affidavit
• Escaping from custody
• Obstructing the police in the performance of their duties

3. CRIMES AGAINST THE COMMUNITY

• Sexual crimes
• Crimes against the family
• Crimes against public welfare
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o Corruption
o Extortion
o Drug offences
o Unlawful possession of firearms or ammunition
o Concealment of births
o Participating in criminal gang activities
o Public indecency
o Violating a grave
o Violating a corpse

4. CRIMES AGAINST A PERSON

• Crimes against life
o Murder
o Culpable homicide
o Administering poison or another noxious substance
o Exposing an infant
• Crimes against bodily integrity
o Assault
o Intimidation
o Pointing a firearm
• Crimes against dignity and reputation
o Crimen iniuria
o Criminal defamation
• Crimes against freedom of movement
o Kidnapping

5. CRIMES AGAINST PROPERTY

• Crimes relating to appropriation of property
o Theft
o Removal of property for use
o Robbery
o Receiving stolen property
o Inability to give account of possession of goods suspected of being stolen
o Receiving stolen property without reasonable cause
• Fraud and related crimes
o Fraud
o Forgery and uttering
o Theft by false pretences

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• Crimes relating to damage to property

o Malicious injury to property
o Arson
o Housebreaking with intent to commit a crime
o Possession of housebreaking implements
o Trespassing

Fraud

The common law crime of fraud is one that is most frequently encountered in practice. The
wide ambit of this crime should be clear from the following definition.

Fraud consists in unlawfully making, with intent to defraud, a misrepresentation, which causes
actual prejudice or which is potentially prejudicial to another.

Elements of the crime

There are five essential elements that the State has to prove in order to obtain a conviction
for fraud. These are:
1. Conduct
• Misrepresentation
• Prejudice (actual or potential)
• Causation
2. Unlawfulness
3. Culpability (intention)

1. Conduct

1.1 Misrepresentation

A misrepresentation is a false statement made by one person to another.

It is also trite law now that a misrepresentation can also be made with the intervention of a
computer: the misrepresentation is still made to another person - whether a natural
person or a legal entity such as a company (e.g. a bank). The computer is simply the
means or the conduit for the fraud, as held in S v Van den Berg 1991 (1) SACR 104 (T).

The misrepresentation may take the form of words, words and conduct, or just conduct. The
misrepresentation can be expressed or implied, that is, it can be an act or omission.
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Words

The misrepresentation occurs mainly by means of words, whether spoken or written. The
conduct can also consist of an omission. In S v Shaban 1965 (4) SA 646 (W), the Court held
that the intentional omission of certain words when minutes are taken of a director’s meeting
constituted a misrepresentation.

Impressions

By acting in a certain way, the impression may be created that a certain state of affairs exists,
whereas in truth this is not the case. A fraudster may make a misrepresentation by nodding or
shaking his head, tendering a document such as a stolen cheque, etc. A misrepresentation
can also take place when the perpetrator remains silent about a certain fact.

Cheques

In the case of cheques, specifically R v Bird 1944 CPD 105 at 108, it has been held that:

“When a man gives a cheque, in my opinion, he impliedly makes a representation that he

believes at the time that he gives it that the cheque will be met and that he intends that it
should be met.”

In the case of S v Van Niekerk 1981 (3) SA 787(T) at 791. the Court referred with approval
to this last-mentioned quotation and further explained that this belief should be approached
subjectively. If the accused honestly believed that the cheque would be met it does not matter
that the accused’s belief was based on unreasonable grounds, and/or that he should have
taken precautions to ensure that there will indeed be funds into his account at the time that
the cheque was presented and he did not take such precautions. The Court also held that
“negligence, including misplaced optimism, was not to be equated with fraud.”

The giving of a cheque involves an implied representation by the drawer of the cheque that it
is a good cheque and that it will be met in due course.

Where a post-dated cheque is handed over, the accused makes a statement about a
future event (namely that he or she believes that there will be sufficient funds in the account
at the time that the cheque is presented for payment).

This issue will now be discussed in more detail.

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Future

In the past it has been said that a misrepresentation cannot be made about something that
lies in the future. Since then, case law has developed such that, where a person portrays (at
the moment when he makes the promise) that he is in a position to carry out his promise,
when in fact he has no intention of carrying out his promise, he makes a misrepresentation
about an existing condition and he may therefore be guilty of fraud. In other words, he
misrepresents his state of mind.

The critical question is whether the accused has honestly expressed his present state of
mind in regard to the promise. If he has acted dishonestly, then the misrepresentation element
has been proved. If the evidence shows that, in fact, he had no intention at that moment of
carrying out his promise, he has made a misrepresentation about an existing fact and is on
that basis liable.

In S v Deetlefs 1953 (1) SA 418 (A), the accused bought a truck on 6 September. He
handed a post-dated cheque, dated 21 September, over to the complainant and assured
him that the cheque would be met. The Court took the following factors into account in
convicting Deetlefs:

• The evidence showed that his account never had sufficient funds to meet a cheque of
that amount.
• He sold the vehicle at a loss four days after he had purchased it and provided the
new purchaser with a false explanation as to why he sold it.
• He never made any attempt to pay the complainant.

The Court held that Deetlef’s state of mind was an existing fact and if all the evidence was
considered it was clear that he had no intention to carry out his promise. His position was
different from that of a person who simply disappoints his creditor, because Deetlef made a
misrepresentation about his bona fide belief that the cheque would be met.

Example
X issues a post-dated cheque to A. At the time he has no funds in his account. Whether or not
he is committing fraud will depend on the facts of the matter. Did he have a bona fide and
reasonable belief that funds will enter his account? If not, he should be convicted of fraud.

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1.2 Prejudice

The act of misrepresentation must cause prejudice, whether real or potential. Mere lying is
not punishable as fraud; the crime is only committed if the lie brings, or has the potential to
cause, some sort of harm to another. In other words, the victim suffers prejudice if he alters
his position to his detriment after relying on the misrepresentation.

Patrimonial or non-patrimonial prejudice is sufficient to constitute this element.

Patrimonial prejudice includes payment for worthless items or goods not delivered.

Non-patrimonial prejudice takes the form of prejudice to interests such as reputation or

dignity. By the complainant having to resort to civil action to get his money back, this element
could also be proved.

Prejudice to control exercised by an organ of the State in regulating a specific matter is also
regarded as non-patrimonial. The courts, however, have indicated that if the prejudice
were "too remote or fanciful" it would not sustain a charge of fraud.

Potential prejudice is also sufficient. The test is whether it is reasonably possible that
prejudice would occur. It is not required that there has to be a probability of harm, as held in R
v Heyne 1956 (3) SA 604 (A).

If, on the other hand, the misrepresentation is so preposterous that the reasonable person
would never believe it, there is no potential prejudice. (For instance, if the man who presents
a cheque for the payment of R1 million is known to the cashier as a street beggar.)

It is not necessary for the victim to be actually misled by the representation. The law looks
at the matter from the deceiver’s point of view.

In S v Campbell 1991 (1) SACR 503 (Nm), the accused offered for sale to a police trap certain
stones which he had represented as being diamonds whereas, in fact, they were only glass or
zirconias. The trap was aware of the fact that the stones were not diamonds.

The Court held that whether or not a person to whom a representation is made is aware of
the fact that it is false is irrelevant. If the accused had the intention to defraud, it is immaterial
whether there is actual or merely potential prejudice.

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The State could also be prejudiced and, invariably, the State is then included in the charge
sheet as a prejudiced party.

In the matter of S v Tshopo and Others 2013 (1) SACR 127 (FB) the accused were charged
with fraud after a provincial government had awarded the tender to a business called Abelusi.
It was proved, among other things, that there was a failure to disclose that the tenderer had a
relationship or was connected to a person employed by the provincial administration. The
appellants argued that the provincial government did not suffer any prejudice since
Abelusi indeed rendered the services as envisaged by the tender. The Court however
held that the failure to reveal the relationship is prejudicial to other tenderers and the
community at large, since it frustrates the State’s efforts to eliminate favouritism and
furthermore renders the State incapable of administering public funds fairly and equitably.

Whether there is prejudice must be determined at the time that the misrepresentation is
made.

1.3 Causation

Fraud as a hybrid crime

Fraud is a so-called “hybrid” crime because the act is defined as a misrepresentation and
the misrepresentation must lead to a result, namely prejudice or potential prejudice.

From the outset is should be noted that the legal position here is problematic.

There has to be a causal connection between the misrepresentation and the prejudice. If
cheques, for example, are guaranteed by the Bank, then there might be a reasonable
possibility that the payee may rely on the advertised guarantee rather than on any
misrepresentation made by the accused.

See the following facts in S v Rautenbach 1990 (2) SACR 195 (N) for an illustration of this
principle:

The accused presented six (6) cheques to various businesses. Each cheque was for an
amount of less than R200. His agreement with the bank was that each of his cheques would
be guaranteed to R200. His overdraft facility was R500. The Court ruled that where the
amount of the cheque is less than the guaranteed sum, the accused’s tacit representation that
he believes that the cheque will be honoured by the bank is not a misrepresentation and the
convictions on six counts were set aside.
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2. Unlawfulness

The act or misrepresentation must be unlawful, i.e. against the legal convictions of the
community. By looking at all the facts and circumstances of the case, the Court has to
decide whether or not the actions of the accused are in fact unlawful. The criterion of
unlawfulness is whether the accused’s actions are objectively unreasonable. It is sometimes
also said that the actions should be against the legal convictions of the community or contra
bonis mores.

Exaggerations in commercial advertising

There are some forms of misrepresentation that are not per se unlawful. The exaggeration
of the qualities of goods or commodities involved in ordinary commercial advertising, also
called “puffing” or “sales talk”, is not unlawful, even when, as in the case of tobacco or
liquor, the prejudice to human health is clear and well known.

Grounds of justification

There are certain grounds of justification in law which would exclude unlawfulness. In the
context of fraud the following are sometimes raised:

2.1 Necessity

This defence is sometimes raised, but seldom succeeds. The following examples come to
mind:

Example “I committed the fraud because my small infant suffers from a serious illness and I
needed the money to pay for his medical expenses.”

“The syndicate forced me to take part in the fraudulent scheme by threatening to kill me
should I not participate.”

These types of defences seldom succeed because of the strict legal requirements in this
regard, namely:
• A legal interest should be under threat (e.g. her life, someone’s property etc.).
• The danger should be imminent.
• The actions resorted to must be necessary to prevent the danger from taking place.
• If the danger can be avoided by taking flight and/or by enlisting the assistance of the
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police then the actions (of committing the crime) would not be “necessary”.
• The prejudice that the actions bring about should be in relation to the legal interest
that the person seeks to protect. In other words, if you are threatened to pay an
amount of money you cannot kill someone to avoid payment.

In the end, the Court will have to evaluate whether it was objectively reasonable to act out of
necessity.

2.2 Consent

It is sometimes argued that the complainant or its representatives allowed a fraudulent

scheme to continue and thereby consented to the fraud.

In S v Judin 1969 (4) SA 425 (A), it appeared that a temporary acting branch manager
of the complainant bank, after discovering that a fraudulent scheme was in operation, had
not immediately put a stop to it, with the result that the loss suffered by the bank subsequent
thereto was not due exclusively to the accused's deception, but largely to the acting
manager's refraining from stopping it. Upon his return, the permanent bank manager
immediately put a stop to it.

The Court held that, since the accused had persisted with the fraud until it had been stopped
on the return of the permanent manager, that the acting manager's failure to put a stop to the
fraudulent scheme did not mean that the bank had consented to the fraudulent scheme
and/or that the prejudice the bank had suffered was of its own making. It was at most a
mitigating circumstance which could lessen the sentence imposed on the accused.

The judgment is consistent with the principle that the law looks at the matter from the
perspective of the deceiver and not the deceived person.

If a false representation is of such a nature as, in the ordinary course of things, to be likely to
prejudice the complainant, it does not matter that the complainant did not immediately put a
stop to the scheme.

2.3 Obeying orders

In S v Shephard 1967 (4) SA 170 (W), it was held that an accused who has acted illegally in
response to the direction of his employer or of a senior co-employee cannot escape the
consequences of his conduct if he knew that what he was being ordered to do was
unlawful.
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Personal gain, or the hope of such gain, has never been a necessary element in fraud.

Legal duty to disclose

This element becomes significant especially in the sphere where the misrepresentation
consisted of a failure to communicate. A legal duty can arise from legislation or from the
facts themselves, with reference to the general criterion of unlawfulness, namely the legal
convictions of the community.

Legislation: for example, section 234 of the Companies Act (61 of 1973). If a director fails to
disclose to the company that he has an interest in a contract entered into by the
company, he may be guilty of fraud – see S v Heller (2) 1964 (1) SA 524 (W).

Factual position: for example, failing to disclose that circumstances changed – see S v
Harper 1981 (2) SA 638 (D).

Example
X makes an honest proposal to A to invest money. A is persuaded and invests the money.
After some time, X realises that the circumstances have changed to such an extent that A
might lose his money. However, X does not inform A, and A then continues to invest whilst
under the false impression. The silence on X’s part constitutes a misrepresentation.

Whether a failure to disclose is fraudulent, because a duty exists in law to do so, depends on
the surrounding circumstances. Examples of situations where disclosure becomes
compelling (in the absence of a statute or prescript) include where the relationship between
the parties is based on that of employer/employee, contract, client/banker, director/company
or other factual circumstances that may have developed. A fixed list of compelling
circumstances does not exist, but examples exist in our case law to demonstrate when a duty
in law to disclose arises.

For example, in S v Burstein 1978 (4) SA 602 (T), the seller of the item failed to inform the
purchaser that he was not the owner of the item. He was convicted.

In the matter of S v Western Areas Ltd and Others 2004 (1) SACR 429 (WLD), an internal
regulatory framework established such a situation. X failed to disclose material information at
a meeting of the Securities Regulation Panel (SRP) of the JSE, where internal SRP prescripts
required honest disclosure. It was held that a legal duty to disclose does not only arise
because of a statute sanctioning certain behaviour, but that internal prescripts could also find
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such a duty.

In S v Yengeni 2006 (1) SACR 405 (T), the accused failed to disclose certain benefits that he
received to Parliament. This amounted to the breach of the parliamentary code of conduct, but
the breach did not amount to an offence. The Court held that he intended to deceive
Parliament and that it does not matter that the failure to disclose - in itself - was not a criminal
offence.

An example often encountered in practice is where the procurement manager of a company

engages his employer with a supplier (on behalf of the company) in which he has an interest,
without disclosing this fact to the employer. The duty to disclose in this instance emanates
from the employment relationship, which is a relationship of trust in terms of which the
employee must act in the best interest of his employer and should not promote his personal
interest at the expense of his employer.

3. Culpability (intention)

To prove intention (dolus) the State needs to show beyond reasonable doubt:
• The intention to defraud (a person must know that he/she is making a
misrepresentation);
• The intention to prejudice the victim or a third person (includes potential prejudice); and
• Knowledge of unlawfulness.

Intention can normally be deducted from the facts of the particular case. There are three basic
forms of intent:
• Dolus directus (directs his will at the consequence);
• Dolus indirectus (directs his will at consequence A knowing that consequence B will
inevitably also occur) and
• Dolus eventualis (foresees the possibility of the consequence, and reconciles himself to
it).

Intent to defraud in the form of dolus eventualis exists when X makes a representation of fact
to another while foreseeing the possibility that it is a misrepresentation and reconciling himself
with this possibility. X therefore knowingly exposes the representee to a risk and deceitfully
leaves the representee ignorant of his exposure to that risk.

Negligence, no matter how gross, cannot constitute fraud. Negligence may be very strong
evidence of fraud but cannot constitute it. The line between making a statement recklessly

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(careless whether it be true or false, in other words with dolus eventualis) and making one
negligently is clear in theory, but often difficult in practice: one acts recklessly if one actually
foresees that a statement may be false, but nevertheless makes it; one acts negligently if one
ought reasonably to foresee that the statement is false because a reasonable person would
have foreseen it.

There has to be an intention to prejudice – it must be proved that X intended Y not merely
to be deceived but in consequence to alter his legal rights. X must intend to cause Y
prejudice, proprietary or non-proprietary.

Legal advice - If a person is advised by a lawyer that an action would not be unlawful and
later it turns out to that the action was indeed unlawful, it is more an issue as to whether the
accused intended to commit a crime. Did the accused have knowledge of the unlawfulness of
his conduct? Such an allegation can be tested on three grounds:
• Is it obviously ridiculous advice?
• What was the advice?
• Was the advice followed to the letter?

After the decision in S v De Blom 1977 (3) SA 513 (A), the adage “ignorance of the law is
no excuse” no longer holds true.

In S v Claassens 1992 (2) SACR 434 (T), it was indeed held that a client is entitled to rely on
the advice of his legal representative, in the absence of indications that the advice may be
unreliable or where the advice is clearly absurd.

4. Forms of Fraud

4.1 Pre-existing debt cases

Pre-existing debt cases refer to situations where two parties have already entered into an
agreement (contract), and one of the parties is in debt with the other contracting party.
Causation is particularly important where the payment of a pre-existing debt is an issue. If,
for instance, A enters into a rental agreement with B but does not pay his rent, it does not
matter that he then uses a false or fraudulent cheque to pay the arrears. A did not induce B to
enter into the agreement as a result of his handing the cheque over to B. B is still in the
same position (i.e. in the same position before or after the cheque was handed to him). In S v
Calitz 1992 (2) SACR 66 (O), the accused handed a (worthless) post-dated cheque to the
complainant in respect of services that had already been delivered (i.e. pre-existing debt).

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The Court held that the issue of a cheque knowing that there are no funds with which to meet
the cheque on presentation is a misrepresentation. But since it was issued in respect of a
pre-existing debt, the misrepresentation could not cause the prejudice. In the Calitz matter,
no evidence of prejudice was led and the conviction was set aside.

Also see S v Ellis 1969 (2) SA 622 (N). Here, the Court held that:

“The cheque which the accused handed to the complainant was for arrear rental which he
owed her. He did not induce or attempt to induce her to act to her prejudice nor did she in fact
alter her position for the worse or suffer any loss or prejudice as a result of his handing her
the cheque. The debt in respect of which the cheque was given was a pre-existing debt for
which she had and still has a claim against the accused and she was in no better or worse
position after the accused had handed her the cheque than she was before he handed it to
her.”

The view of the courts in this case of pre-existing debt is difficult to reconcile with, firstly, the
principle that potential prejudice is sufficient to sustain a charge of fraud. We say this
because there are a number of situations that may lead to the conclusion that someone has
indeed been exposed to the risk of prejudice. And, secondly, these judgments do not
accord with the principle that the law looks at the matter from the deceiver’s point of view.2
Since the accused’s actions in these matters went beyond mere acts of preparation and it was
only due to external interventions that the prejudice did not ensue, it is not clear why the
accused was not convicted of attempted fraud.

In S v Moodie 1983 (1) 1161 (C), the Appellant issued a cheque for hotel accommodation
which he knew would not be met. It was therefore also a pre-existing debt situation. However,
the Court found that there had been potential prejudice to the hotel owner because he had
given up a potential lien over the accused’s goods (namely his baggage) and had suffered
inconvenience and delay in consequence of the cheque being dishonoured.

The courts therefore view each case on its own facts. The principle is that if the
complainant has the same rights after the misrepresentation as he had before the
misrepresentation had been made, it is argued that there was arguably no actual
prejudice. Put differently, the misrepresentation did not cause any prejudice. If, on the
other hand, the complainant has weaker rights as a result of the misrepresentation, the
causing of prejudice has been proven.

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4.2 Cases where the accused lied about the purpose of a loan

The principle alluded to in the previous paragraph is well illustrated by the cases where the
suspect lied about the purpose for which a loan was allegedly required.

In R v Reggis 1972 (2) SA 670 (R), the Court set out the correct principle as follows:

“By reason of the misrepresentation relating to the accused’s allegedly urgent need of the
money the complainant was induced to exchange his existing rights of ownership in his
money for the contractual rights of a lender thereof, and it is this alteration in the
complainant’s position which clearly establishes the element of prejudice.”

In S v Huizers 1988 (2) SA 503 (A), the accused entered into three loan agreements in which
he also lied about the reason for the loans. The Court held that fraud is committed where
the complainant is induced to make a loan to the accused by reason of a false representation
made by the latter concerning the purpose for which the loan is required. By reason of the
misrepresentation the complainant is induced to exchange his existing right of ownership to
his money for a right to reclaim such and it is this alteration in his position which
constitutes the element of prejudice.

4.3 Buying on credit

What is the position when a suspect does not misrepresent the reason for entering into a loan
or credit agreement, but then fails to pay the instalment? Has fraud been committed when
a person enters into a credit agreement and then fails to pay for the goods? In other words, is
the person committing fraud or is he or she simply not honouring the credit agreement?

By applying for credit, the person makes an implied representation that he is willing to pay,
that he intends to pay in future, and that he will have enough money to pay. See R v Persotam
1938 AD at 92. His intention at the time of the conclusion of the contract must be examined.

R v Latib 1973 (3) SA 982 (A): An un-rehabilitated insolvent had developed a fraudulent
scheme with bogus companies that involved ordering goods on their behalf. He had no
intention of paying for the goods so ordered. On appeal he contended that the State had to
prove both an inability and an unwillingness to pay. The Court held that it is sufficient to
establish an unwillingness to pay.

In the case of a credit transaction, the representation concerning ability to pay is a

representation of a present belief that he or she will be able to pay when payment falls due,
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rather than a representation about what his or her financial position will be at the future date. If
the person’s belief is genuine, although over-optimistic, the representation is not false,
whatever the person’s financial position will in fact be at the future date. The person’s ability
to pay at the time of the purchase and his prospects of doing so will be relevant to show
whether he did, in fact, entertain such a belief. The representation here is more about the
person’s state of mind. Both an unwillingness and inability to pay are not required in order to
be convicted of fraud.

5. Attempted fraud

Due to the fact that, in order to convict someone of fraud, potential prejudice must be
proven, it is often thought that it is not possible to convict someone of attempted fraud. The
Supreme Court in R v Heyne 1956 (3) SA 604 (AD) held, however, that attempted fraud can
be committed.

Example

The following are examples of attempted fraud.

1. Where a misrepresentation is not communicated or does not reach the intended

victim. For example, X sends a cheque to Y knowing that there are insufficient funds
in his account. If Y never receives the cheque the misrepresentation has not been
communicated, but the action would have led to a fraud if the cheque had been
received.
2. Where the misrepresentation is communicated, but causes no actual prejudice, and is
so patently ridiculous that it could not reasonably harm anyone, which means that
there is no potential prejudice either. For instance, if A (a marketer of tobacco
products) misrepresents to B that smoking a certain brand of cigarettes will attract
persons of the opposite sex and will bring him fame and fortune, there is no
reasonable possibility that B may act to his prejudice as a result of the
misrepresentation. If A, however, holds the mistaken belief that B will actually believe
him and will buy lots of cigarettes as a result of the misrepresentation, it can be
argued that A should be convicted of attempted fraud.

3. Where, as a result of a mistake of fact, X thinks his representation is false, whereas it

is actually true, or thinks his misrepresentation can cause prejudice, whereas
prejudice is impossible.

4. A believes that he has a piece of glass in his possession. He meets B and represents

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to B that he has a diamond that he wants to sell. The sale takes place. It appears that
this is, in actual fact, a diamond. Therefore no misrepresentation or prejudice takes
place. A is, however, guilty of attempted fraud.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 201-205.

Assessment activity 11

Mr Alberts is a senior manager at Pronto Ltd, (“Pronto”), a butter producer. He is also a

member of a close corporation, Steadfast CC, “Steadfast”, which has as its main business the
supply of milk to butter producers. Mr Alberts, who is not a director of Pronto, does not
disclose to Pronto that he has an interest in Steadfast. Pronto puts out tenders for the
supply of milk and Steadfast is awarded the contract. Mr Alberts is not involved in the
evaluation and recommendation of the prospective bidders. Mr Alberts has, however, signed a
copy of Pronto’s Code of Conduct, in which it is stated that any employee, manager or
director should disclose his interest that he may have in any contract that Pronto concludes
to the managing director of Pronto. Mr Alberts does not disclose his interest to the said
managing director of Pronto. One of the unsuccessful bidders discovers that Mr Alberts has
an interest in Steadfast and institutes an action in the High Court, in which he seeks an
order that: the award of the tender to Steadfast be set aside; Pronto’s bidding committee
reconsider its decision to award the contract to Steadfast; and that the entire tender process
be started afresh.

The directors of Pronto are upset about this turn of events and approach you for an opinion as
to whether Mr Alberts can be successfully prosecuted for fraud.

With reference to the elements and principles applicable to the crime of fraud and relevant
case law, discuss in detail whether Mr Alberts can be successfully prosecuted for fraud. (25
marks)

Guidelines for acceptable answers – Question 11

Discuss all the elements of the crime of fraud (disregard other possible contraventions of, for
instance, the Prevention of Corrupt Activities Act, 12 of 2004, the Companies Act, 71 of
2008 etc.) and concentrate on those elements that seem to be problematic .

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1. Conduct
1.1 Misrepresentation

• Discuss whether or not Mr A acted in that he did not disclose to Pronto that he has an
interest in Steadfast.
• Was this an untrue representation of an existing fact?
• Discuss whether the misrepresentation took the form of words, conduct or silence – or
perhaps a combination of all.

1.2 Prejudice

• Would Pronto have suffered prejudice or potential prejudice if it had altered its position
to its detriment after relying on the misrepresentation?
• Discuss patrimonial and non-patrimonial prejudice, and actual or potential prejudice.
• Was there any prejudice to the unsuccessful bidder?

1.3 Causal connection

• Was the prejudice to Pronto caused by Mr A’s failure to disclose and not to some
other cause?
• Consider whether the tender would not have been awarded to Steadfast in any
event, even on the assumption that Pronto and its directors were aware of Mr Alberts’
involvement in Steadfast.
• Was it Mr Alberts’ failure to disclose the facts that led to the actual or potential
prejudice? Or can it be argued that his failure to disclose had no effect on the
decision as to who the successful tenderer would be? In other words, if the true
state of affairs were known to Pronto, they would have awarded the tender to
Steadfast in any event?

2. Unlawfulness

• This element may cause a problem and should be discussed in full.

• Consider that a legal duty can arise from legislation or from the facts themselves.
• The general criterion of unlawfulness, namely, the legal convictions of the community,
should be the overriding criterion here.
• It may be argued that, in this set of facts, there is also a “special relationship” between
the parties, namely that of employer-employee.
• An employee, for instance, has a duty to be loyal towards his employer and ensure

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that conflicting interests do not compromise this duty.

• According to the case law discussed - concentrate on the Western Areas and Yengeni
cases - it furthermore seems that a legal duty to disclose not only arises because of
the fact that a statute sanctions certain behaviour, but also because internal prescripts
could also find such a duty.
• These cases lend support to the argument that the failure to adhere to a company’s
internal code of conduct may amount to a misrepresentation.
• On the other hand, it may be argued that the Western Areas and Yengeni cases can
be distinguished from the facts in the current matter.
• Discuss and argue this issue.
• It is, however, clear that it is not necessary that the failure to disclose should in itself
constitute a criminal offence.

3. Culpability (intention)

• Discuss the various forms of intent (dolus directus, indirectus and eventualis).
• Discuss the possibility that Mr A was not aware of the legal duty that rested on him
to disclose his interest in Steadfast.
• Also discuss how his intention should apply not only in respect of the
misrepresentation element, but also in respect of the other elements.
• He should also, for instance, have intended to cause prejudice to Pronto .
• Discuss the difference between intention to deceive and intention to defraud.

The State should prove all these elements beyond all reasonable doubt.

Assessment activity 12

Xolani enters into a lease agreement with Y Ltd on 20 September 2011. The officials of Y
Ltd know Xolani very well: he has an excellent reputation in the market as being an honest
person, and someone who is financially well-off. Y Ltd therefore does not require a deposit
from Xolani when entering into the lease agreement with X. Xolani pays his rent for the first
three months, but cheque for the fourth month, dated 30 January 2012, is returned by the
bank as “account closed” on 20 January 2012. Y Ltd confronts X about this, who says it was a
clerical mistake on the bank’s part and that he will rectify the matter. Your investigation
shows that Xolani personally closed his bank account on 20 January 2012.

With reference to the elements and principles applicable to the crime of fraud, discuss in
detail whether Xolani can be successfully prosecuted for fraud. (25 marks)

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Guidelines for acceptable answers – Question 12

Once again, discuss all the elements and concentrate on those elements that seem to be
problematic. This question can be argued both ways: for or against the existence of a prima
facie case against Xolani.

1. Conduct

1.1 Misrepresentation

• Discuss whether Xolani acted by making a false misrepresentation in that he lied to Y

Ltd as to why the cheque was not honoured by the bank.
• Did he act by words, conduct or silence?
• Refer to the well-known quote in the case of R v Bird: “When a man gives a cheque, in
my opinion, he impliedly makes a representation that he believes at the time that he
gives it that the cheque will be met and that he intends that it should be met.”
• Consider whether or not Xolani impliedly misrepresented that the cheque is good and
funds will be available when the cheque is presented, and that the cheque will be met
in due course.
• Consider the position relating to representation about future events.
• The case law has developed that, where a person gives out at the moment when he
makes the promise that he is in a position to carry out his promise whereas he in fact
has no intention at that moment to carry out his promise, he makes a misrepresentation
about an existing condition and he may therefore be guilty of fraud. He misrepresents
his state of mind.
• The critical question is therefore whether the accused has honestly impliedly expressed
his present state of mind in regard to the promise.
• If he acted dishonestly in that regard, then the misrepresentation element has been
proved. If the evidence shows that, in fact, he had no intention at that moment to carry
out his promise he makes a misrepresentation about an existing fact and is then
criminally liable.
• Discuss the case of S v Deetlefts and apply the legal position set out in the case to the
facts at hand in this case study.
• The question whether or not Xolani knew at the time that he entered into the agreement
that he will close the account should therefore be considered and argued.
• What about a possible version by Xolani that his circumstances changed only after he
had entered into the agreement with Y Ltd and that change of circumstances

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necessitated the closure of the account?

• Does a legal duty then arise to inform Y Ltd that the cheque(s) will not be met? See
Study Unit 3, Topic 3.1.

1.2 Prejudice
• Discuss patrimonial and non-patrimonial prejudice.
• Can it be argued that, by accepting the cheque which would not be honoured by the
bank, Y Ltd had to resort to other means to recover the rental?
• Are inconvenience and administrative costs involved?
• Did Y Ltd suffer prejudice?

1.3 Causal connection

• This is also a problem area.

• Discuss and evaluate the case law mentioned in the material above.
• S v Calitz: the accused handed a (worthless) post-dated cheque to the complainant in
respect of services that had already been delivered (pre-existing debt). Isn’t this what
happened, in effect, in our case study also?
• The Court in Calitz held that the issuing of a cheque, knowing that there are no funds
with which to meet the cheque on presentation, is a misrepresentation. But since it was
issued in respect of a pre-existing debt, the misrepresentation could not cause the
prejudice.
• Also discuss the Ellis, Deetlefs and Moodie cases.
• When Xolani handed the cheque to the complainant, was his intention not to induce
the complainant to believe that the cheque was a valid payment of Xolani’s obligations
in terms of the rental agreement? Would the complainant have accepted the cheque
as payment had he known that it was not a valid cheque?
• The cheque which Xolani handed to the complainant did not induce or attempt to
induce Y Ltd to act to their prejudice nor did Y Ltd alter their position for the worse or
suffer any loss or prejudice as a result of his handing over of the cheque.
• The debt in respect of which the cheque was given was a pre-existing debt.
• Y Ltd still has the same type of claim against Xolani and is in no better or worse
position after he had handed them the cheque than before he handed the cheque to Y
Ltd.

2. Unlawfulness

• Did Xolani act unlawfully by handing the cheque over whilst being aware that the

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account was closed and thereafter lying to Y Ltd as to why the cheque was not
honoured?
• Discuss this element - what is the criterion for unlawfulness?
• Do the legal convictions of the community condone this type of conduct?

3. Culpability (intention)

• Did Xolani know and did he have the required intent to defraud?
• Refer to the discussion on intent to defraud in your answer.

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TOPIC 3.2
Forgery and uttering

Closely related to fraud are the offences of forgery and uttering. In the case of forgery the
misrepresentation takes the form of falsification of a document.

The difference between forgery and fraud is that, in the case of fraud, the crime is completed
when the misrepresentation is brought to the attention of the person to be defrauded,
whereas the crime of forgery is completed once the document has been falsified.

The elements of the crime of forgery are as follows:

1. Conduct

For a document to be a forgery, it must somehow be an imitation of a genuine document. A

document is not forged merely because it contains a false statement.

“Document”

The word “document” has been widely interpreted by the courts. In brief, a document can be
described as being "any writing in any form, on any material, which communicates to some
person or persons a human statement, whether of fact or fiction".

Only writing or marks of some sort that can be interpreted into language on matter such
as paper, stone, wood, brick, canvass etc. can be regarded as a document for the
purposes of this crime.

2. Prejudice and causation

The same principles apply to forgery as they do to fraud.

3. Unlawfulness

The conduct must infringe upon the legal convictions of society, and it must be clear that the
perpetrator may not rely on any ground of justification.

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4. Culpability in the form of Intention

There must be an intention to forge.

5. Uttering

Uttering consists in unlawfully putting out a forged document with the intent to defraud, to
the prejudice or potential prejudice of another. Uttering is the use of a false document to
defraud another person and can be committed by a person other than the forger. If the
forger also utters the document, he commits two separate crimes. Uttering requires an act of
communication of the forged document by tendering it or otherwise offering it or attempting
to use it as a forged document.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 206-209.

Assessment activity 13

Assessment question

Mr X applies for a home loan at YesBank Ltd. Mr X knows that YesBank will turn down the
application if his true financial state of affairs is disclosed to Yesbank. Mr X also has an
investment account with the Bank of Croatia. By making use of computer software he changes
a number of entries on the genuine statements emailed to him by the Bank of Croatia in
respect of the investments so held. The statement now reflects that he has an investment
of R1 million with the said Bank of Croatia, whereas in truth he has only invested R100 000
with the said Bank. He then e-mails the statements, which he has manipulated, to the bank
manager at YesBank. Because of internal server problems at Yesbank, the statements are
not received by the said manager at YesBank, or by any other employee of the Bank.

Discuss whether Mr X has committed any crime.

Guidelines for acceptable answers – Question 13

Discuss the elements of the common law crime of forgery and uttering.

1. “Document”. The investment statements are obviously” documents”.

2. The statements emailed by X to Yesbank are imitations of the actual and genuine
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statements. X purports these to be the genuine statements and this element can also
be proved with ease.
3. X altered and/or imitated the genuine statements in order to obtain a home-loan from
YesBank. If X had been successful, YesBank could have suffered actual or potential,
patrimonial and/or non-patrimonial prejudice as a result of X’s actions.
4. X clearly intended to defraud YesBank.

Since X did actually communicate the forged document to another party he can also be
charged with uttering, in addition to the charge of forgery. It is not required that the forged
document should have been received by any person.

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TOPIC 3.3
Theft and related offences

Despite the fact that it is one of the most common crimes adjudicated on by the courts on a
daily basis, in certain circumstances theft can be technically difficult to prove.

There are also divergent views by legal commentators and the courts in respect of certain
elements of this crime.

For our purposes we will look only at some broad principles and at certain issues that a
forensic auditor may encounter in the course of his or her investigation.

Definition

Theft is the unlawful, intentional appropriation of movable, corporeal property which

• belongs to and is in the possession of another person or
• belongs to another but is in the possession of the perpetrator or
• belongs to the perpetrator but is in another person’s possession and such other
person has a right to possess it which legally prevails against the perpetrator’s own
right of possession
provided that the intention to appropriate the property includes an intention permanently to
deprive the person entitled to the possession of the property, of such property.

1. Conduct

1.1 Appropriation

The question, whether an appropriation took place is a factual question, which can only
be answered with regard to the nature of the thing, the degree of control which is normally
exercised over such a thing and the act, seen in the light of all available facts, as held in S v
M 1982 (3) SA 309 (O).

If an initial “innocent purchaser” subsequently becomes aware that the thing is stolen and
then alienates or keeps the thing, he commits theft, as theft is a continuing crime.

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1.2 The thing (property)

The property must be a movable corporeal thing in commercium. This means that the thing
must have some commercial value.
Immovable property cannot be stolen.
Things outside commercial transactions, i.e. things that belong to nobody specifically, are not
capable of being stolen.

This concept might be better understood by looking at some examples of things that the law
considers to be outside the sphere of commercial transactions:

• State property exclusively held for the community (res publicae), such as sea sand
etc.
• Things belonging to everybody (res communes) such as air, the sea etc.
• Things which are capable of being stolen, but which do not belong to any person at
the time of appropriation (res nullius) such as the honey of wild bees, fish in a river,
wild game etc. The common law in this regard has, however, been amended by
legislation (such as the Game Theft Act, 105 of 1991).
• Things disposed of by the owner (res derelictae) - if it is evident that the owner
abandoned his or her rights over the thing, it cannot be stolen.
• Own possessions (res sua).

The general rule is that a person cannot steal his or her own possessions or property.

However, if someone else has an interest or right to a thing and the owner then removes the
thing without that person’s consent, the owner commits theft, not in respect of his own
property, but in respect of the right the possessor has over the thing. The classical
example is the owner who removes his vehicle from the workshop, where it was for repairs,
without paying for the repairs, and without the permission of the owner of the workshop.

The rule was that the husband, because of his marital power in a marriage in community of
property, could not commit theft in respect of the joint property, whereas the wife could be
convicted. This common law rule in terms of which a husband obtains the marital power
over the property of the wife has since been abolished and both parties can thus be guilty of
theft of matrimonial property.3

The same principle applies in respect of partners. Partnership property is also capable of
being stolen by either one of the partners.

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Corporeal things

Historically, it was taught that only corporeal things (a part of physical nature) could be stolen
except where an owner steals his own property from a lawful possessor.

In S v Harper 1981 (2) SA 638 (D), the Court decided that shares (as opposed to share
certificates) could be stolen. The Court held that share certificates were corporeal things
capable of being stolen. The Court ruled that a credit balance can also be stolen (see 666E of
the law report). In S v Kimmich [1996] 2 All SA 403 (C), the Court also held that
incorporeal things may be stolen.

Money

It is obvious that individual notes and coins can be stolen. Problems however arise where the
act is committed by manipulation of computers, book entries or by entrusting money to a
person who then disposes of it in one way or another. It is therefore not the material corporeal
thing which falls under the ambit of a commercial transaction which is being “stolen”, but the
economic assets or credit (e.g. in a banking institution).

In S v Sibiya 1955 (4) SA 247 (A) 261, the following was said: “Nowadays in cases of theft we
are apt to look at the economic effect of the act by which a person fraudulently converts
money to his own use rather than be hypnotized by the concrete mechanics by means of
which the crime is committed.”

Thus today we look at the economic consequences of the act, such as the decrease in the
complainant’s bank credits.

When a customer deposits money (including money represented by a cheque) it becomes

that of the bank, subject to the bank's obligation to honour cheques validly drawn by the
customer, as held in S v Kearney 1964 (2) SA 495 (AD) at pages 502 - 503.

However, again adapting the law to modern conditions and the common sense of the
situation, in the theft case of S v Kotze 1965 (1) SA 118 (AD), the Court held that the
complainant in that theft case had a "special property or interest" in the money in his bank
account, even though he was not the owner.

A cheque is therefore the equivalent of cash in terms of our current case law for the purposes
of fraud and theft. If a person steals a cheque, he not only steals the cheque but also the
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value embodied in the cheque - see S v Kotze1965 (1) SA 118 (A) and S v Visagie 1991 (1)
SA 177 (A).

Despite the fact that a complainant would then be in a debtor/creditor relationship to the
bank, it is clear from the case law that as, as a “special property of interest in the funds”, the
funds could be stolen from him as well.

Trust money

In practice, it is often difficult to ascertain whether a suspect can be convicted of theft if he or

she is unable to return to a complainant the funds which had been in his or her possession or
under his or her control. The following principles are applicable in this regard:

• Funds can be entrusted to another person(s) for various purposes.

• The crucial question is whether the funds were held in trust or merely in a debit/credit
situation, as discussed in R v Scoulides 1956 (2) SA 388 (A) at 394.
“What is decisive is whether the sum of money, which the accused person took
or consumed, was already his to deal with as he pleased for his own benefit, or
whether it was really held in trust for the complainant.”

• If the parties agreed (also by implication) that the suspect could use the funds as he
or she pleases (provided the funds are returned at a certain date), he or she would not
have committed theft if he or she had done so and had then failed to return the
funds at the agreed date.

• If, on the other hand, the parties contemplated that an equivalent liquid fund would be
retained from where the funds would be met on the due date, the fund was most
probably being held in trust and, if the suspect fails to return the funds, he or she
should in all probability be convicted of theft (assuming the other elements of crimes
have been met).

• If held in trust and the trustee has enough funds at his disposal to carry out
instructions on a continuous basis (the so-called “liquid fund” defence), theft will not
be committed if the funds had been used.

• If the funds were received by the suspect to devote it to a specific purpose (e.g.
funds received by an attorney in his trust fund from the purchaser of the property in

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order for the attorney to pay the seller of the property on registration of the property),
the funds should only be used for that specific purpose.

In Harper 1981 (2) SA 638 (D), Milne J dealt with this “special kind of theft, namely theft of
monies received by an agent with instructions to devote it to a specific purpose.” He held
that the accused were guilty of theft as-
“(1) “the monies which form the subject of these charges are “trust” monies in the sense
that they were entrusted to (or if that word to some extent begs the question), received
by the accused, in the knowledge that they were to be devoted solely to a particular
purpose or purposes
(2) the accused knew they were not authorised to use the money for any other
purpose…and that their principals would not have consented to the use of the monies
(3) the accused did not have a liquid fund available
(4) the accused foresaw as a real possibility that they would not be able to repay it.”

The Court in S v Visagie 1991 (1) SA 177 (A) held that the “liquid fund” defence had a
restricted ambit in that it was restricted to cases where such monies were held in trust by the
accused.

In this case the accused, an estate agent, appropriated certain cheques representing the
deposits of prospective purchasers by depositing them into her personal bank account. The
estate agency’s rules were to the effect that these deposits should only be paid into the estate
agency’s account.

The Court found that the accused had never been authorised to hold the monies in trust and
that her position was not that of someone holding monies in trust, but rather, having only
temporary custody of the cheques, analogous to that of a messenger sent to a bank to deposit
cheques or money on behalf of someone else.

Since she did not hold the monies in trust it therefore made no difference that she may have
maintained sufficient liquid funds from which to reimburse the complainants. The liquid fund
defence was therefore not applicable to her situation. She was accordingly convicted of theft.
However, if the cheques were paid into the estate agency’s account, the monies would have
become “trust” monies in the sense that they were to be devoted for the payment of the
deposits of the purchaser.

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Electricity

It has been held in S v Mintoor 1996 (1) SACR 514 (C) that, owing to its incorporeal nature,
electricity cannot be stolen. In S v Ndebele 2012 SACR 245 (GSJ). however, the Court
referred to case law that recognised theft of incorporeal property and held that the unlawful
appropriation of the characteristic of a thing (such as energy when electricity is stolen) may
constitute theft. The Court therefore differed from the Mintoor case and held that electricity is
capable of being stolen.

2. Unlawfulness

Consent

Consent is the most common ground of justification raised against a theft charge. A
distinction must be made between valid consent and consent obtained by duress or as a
result of false pretences.

Valid consent

If the property is taken with the owner’s or lawful possessor’s consent, there is no
unlawfulness.

Force, duress or fear

Consent obtained by duress or force is no consent. See, in general, Ex Parte Minister of

Justice: in Re R v Gesa, R v de Jongh 1959 (1) SA 234 (A); and S v Heyns 1978 (3) SA
151 (NC) at 154.

False pretences

Consent obtained as a result of false pretences is not valid consent.

3. The element of culpability

The state must prove intention to steal or to appropriate. As pointed out in the definition, theft
cannot be committed negligently. When a person bona fide believes that he is not stealing,
then he will not be so convicted.

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The so-called “claim of right” cases are also relevant here. In such cases the accused has a
bona fide belief that he has a right to the property, notwithstanding the fact that he knew that
the owner would not consent.

This often occurs where the accused takes the property as “security” to force someone to do
something (e.g. to pay a salary or to return something). Factors such as the existence of a
debt, the chances that the other party will concede, the use of the thing by the person holding
it as security, etc. will be relevant factors.

In R v Milne and Erleigh (7) 1951 (1) SA 791 (A) op 865H Schreiner AR, said:
“Where, therefore, a person takes another's money without authority to do so and
intending to consume it (actual consumption is, I think, only important as evidence of
intention) he commits theft, even if he intends to return other money, if it is proved that
he did not, when he took it, believe that he had the right to take it or that the owner,
had he been consulted, would have consented to the taking.”

Nor is it required that the property be taken with the intention or motive to benefit the
perpetrator. If something is unlawfully taken with the laudable motive to distribute it to the
poor, for instance, it is still theft.

4. Theft a continuing crime

Our courts regard theft as a continuing crime. For this reason a person can be tried in the area
of jurisdiction where he is apprehended with the property, although he may have stolen the
property in another area of jurisdiction.

5. Specific forms of theft

5.1 “Theft by conversion”

This type of theft is also known as “theft by general deficiency”. Generally this type of theft
originates in that certain goods (e.g. property in a store) or money (e.g. money entrusted to a
debt collector) are appropriated by the person to whom they are entrusted for his/her own use.

Sections 100 and 243(1) of the Criminal Procedure Act, 51 of 1977, are designed to assist the
State with regard to the presentation of evidence. In terms of Section 100, the State only
has to affirm the amount of the shortage in the charge sheet irrespective of whether the
amount (shortage) consists of certain goods or an amount of money which has
disappeared over a period of time.

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5.2 Contravening section 36 of Act 62 of 1955: Failure to give satisfactory account

of possession of goods

This section reads as follows:

“Any person who is found in possession of any goods, other than stock or produce as defined
in section one of the Stock Theft Act, 1959 (Act 57 of 1959), in regard to which there is
reasonable suspicion that they have been stolen and is unable to give a satisfactory account
of such possession, shall be guilty of an offence and liable on conviction to the penalties
which may be imposed on a conviction of theft.”

This section is useful when the State cannot identify the person from whom the items have
been stolen or cannot confirm that the items have indeed been stolen.

It also facilitates proof by the State that the suspect knew that the items found in his
possession were, in fact, stolen.

The elements of the crime are:

• Goods.
• Must have been found in the personal and direct possession of a person. If an
agent or a subordinate was found in possession of the article, the principal would not
have been “found in possession of the article” for the purpose of this section (S v Langa
1998 (1) SACR 21 (T) at 26).
• There must have been a reasonable suspicion that the goods were stolen. The
suspicion must exist at the time that the person was found in possession of the
goods. The test as to whether or not suspicion was reasonable is objective.
• That person was unable to give a reasonable explanation about his possession of the
goods. The explanation is reasonable if it is reasonably possibly true and if it indicates
that the person believed his possession of the goods was bona fide or innocent.

Section 36 not unconstitutional

See S v Du Toit 1995 (2) SACR 651 (C) and Osman v Attorney- General, Transvaal 1998
(SACR) 28 (T) in this regard.

Also see Osman and another v Attorney General, Transvaal 1998 (2) SACR 493 (CC) in
which the Constitutional Court held that this section is not violating the right not to be
compelled to make an admission or confession or right to remain silent and be presumed
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innocent in terms of the Constitution.

The Court held that it was the inability and not the failure or unwillingness to give a
satisfactory account of possession that constituted the offence in section 36.

6. Contravening section 37 of Act 62 of 1955: Receiving stolen property

without reasonable cause for believing that the goods were properly acquired

This section reads as follows:

“(1) (a) Any person who in any manner, otherwise than at a public sale, acquires or
receives into his or her possession from any other person stolen goods, other than
stock or produce as defined in section one of the Stock Theft Act, 1959, without
having reasonable cause for believing at the time of such acquisition or receipt that
such goods are the property of the person from whom he or she receives them or
that such person has been duly authorized by the owner thereof to deal with or to
dispose of them, shall be guilty of an offence and liable on conviction to the penalties
which may be imposed on a conviction of receiving stolen property knowing it to have
been stolen except in so far as the imposition of any such penalty may be compulsory.
(b) In the absence of evidence to the contrary which raises a reasonable doubt, proof
of such possession shall be sufficient evidence of the absence of reasonable cause.”

“Possession” includes keeping the item on behalf of someone else.

7. Section 37 not unconstitutional.

In S v Manamela and Another 1999 (9) BCLR 994 (W), the Constitutional Court held that, by
casting an onus on an accused to establish reasonableness of belief in title of person from
whom goods received, infringes the accused's right to be presumed innocent and declared
that section 37(1) is to be read so as to have a last sentence: “In the absence of evidence to
the contrary which raises a reasonable doubt, proof of such possession shall be sufficient
evidence of the absence of reasonable cause”. The section was therefore amended
accordingly.

8. Contravening section 1(1) of Act 50 of 1956: Unlawful use of another's property

This section reads as follows:

“1(1) Any person who, without a bona fide claim of right and without the consent of the

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owner or the person having the control thereof, removes any property from the
control of the owner or such person with intent to use it for his own purposes without
the consent of the owner or any other person competent to give such consent,
whether or not he intends throughout to return the property to the owner or person
from whose control he removes it, shall, unless it is proved that such person, at the
time of the removal, had reasonable grounds for believing that the owner or such
other person would have consented to such use if he had known about it, be guilty of
an offence and the Court convicting him may impose upon him any penalty which may
lawfully be imposed for theft
(2) Any person charged with theft may be found guilty of a contravention of
subsection (1) if such be the facts proved.”

Where the owner or possessor of an article consents to the use of the article by
another person and that person then uses the article for his own and unauthorised purposes,
the section would probably not be contravened because the removal was done with the
consent of the owner. If the consent was obtained by fraud or false pretence, the section
would apply.

If a person removes an article from the owner’s possession, well aware that the owner would
not have consented to the removal of the article, his subsequent defence that he at all times
intended to return the article would not succeed. The section was enacted to make provision
for those cases where it cannot be proven that the offender had the intention to permanently
deprive the owner of his or her property.

9. Identity theft

“Identity theft” refers in general to the situation where someone uses another person’s
personal identifying information to commit a crime, such as his or her name or credit card
number etc.

9.1 Identity theft is a misnomer

By using another person’s identifying information you do not deprive him of anything. The
victim still has the identifying information available. Nor is it the appropriation of a movable,
corporeal thing and the courts have not yet extended the interpretation of the concept
“appropriation” so as to include personal identifying information.

“Identity theft” is an increasing problem and has serious consequences for the victims who,
most of the time, only realise its effects after the lapse of a number of months.

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In most instances fraud will be committed, because the person will make a misrepresentation
with regard to the identity of another which may cause potential or actual prejudice (e.g. by
presenting a stolen identity document in which the photograph of the lawful holder was
substituted with the photograph of the person presenting the identity book). If the culprits
simply obtain the victim’s personal particulars and do not do anything with these particulars,
fraud has not been committed.

Identity theft can occur in a number of ways. However, today, the potential for this type of
crime is biggest in the cyber world, and it is here that this type of crime poses the biggest
problem. In the cyber world, the victim’s particulars can easily be obtained, whereas the
perpetrator’s identity is seldom compromised. The stolen information can also be distributed
or sold to criminals with relative ease.

It is therefore important to take note of the legislation applicable to curtail the theft of
identifying information. Depending on the facts, the following legislation should be considered:

The boldest move in this regard is the Protection of Personal Information Act 4 of 2013.
• This Act regulates all issues relating to the collection, use, disclosure, storage and
access to personal information.
• Data subjects (people whose identifying information is involved) must be told why the
information is being requested.
• Information collected must be relevant to the specified purposes and may not be
used for any other purpose.
• The information should not be kept for longer than is necessary.
• Information obtained and stored should be properly safeguarded.

10. The Identification Act, 68 of 1997

According to section 18 (1), it is an offence to

• Make false statements, record false particulars in population register etc.
• Present someone else’s identity card as your own.
• Imitate, alter, and deface any identity card.
• Give out that certain information on an identity card is correct.
• Possess an identity card which has been imitated, altered, defaced etc.

“Identity card” is defined widely in the Act.

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In terms of section 86 of the Electronic Communications and Transactions Act, 25 of 2002,

any person who
(1) intentionally accesses or intercepts any data (e.g. a person who unlawfully
enters / hacks into a data base and obtains data from there)
(2) interferes with data in a way which causes such data to be modified, destroyed or
otherwise rendered ineffective
(3) unlawfully produces, sells, offers to sell, procures for use, designs, adapts for use,
distributes or possesses any device, including a computer program or a component,
which is designed primarily to overcome security measures for the protection of data,
or performs any of those acts with regard to a password, access code or any other
similar kind of data with the intent to unlawfully utilise such item to contravene this
section, (this is for instance where a person uses a “skimming device” to obtain the
data contained in the magnetic strip on the back of a credit card)
(4) utilises any device or computer program mentioned in subsection (3) in order to
unlawfully overcome security measures designed to protect such data or access
thereto,
commits a crime.

Other legislation that may be applicable includes:

• The Promotion of Access to Information Act, 2 of 2000: Access to third party

information is prohibited is if it leads to the unreasonable infringement of privacy of a
third party (sections 34 and 63).

• Chapter VIII of the Electronic Communications Transactions Act, 25 of 2002, also

aims to address privacy concerns: data controllers can voluntarily subscribe to certain
principles relating to the protection of data in agreement with the subject.

• National Credit Act, 34 of 2005: section 70 spells out a Credit Bureau’s duties in
respect of the protection of consumer credit information.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 175-192.

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Assessment activity 14

Mrs X is an estate agent who works for LSM estate agency. She appropriates certain cheques
representing the deposits of prospective purchasers of residential property and deposits the
funds into her personal bank account. LSM’s internal rules prohibit this - she is supposed to
deposit these funds into a separate bank account held by LSM, from where these funds
are transferred to the conveyance attorney in due course. She maintains that she did not
intend to steal the funds as she had enough liquid funds from which to reimburse the
purchasers. She maintains it was always her intention to repay the purchasers. Could she
successfully be prosecuted for theft? In your answer, refer to relevant case law. (20 marks)

Guidelines for acceptable answers – Question 14

See the case of S v Visagie 1991(1) SA 177 (A)

1. Establish an act of misappropriation.

• Clearly she took the cheques and this element can be proven.

2. Establish whether property that she took is capable of being stolen.

• The cheque is a movable and corporeal item and is therefore capable of being
stolen.
• What about the funds represented by these cheques?
• By depositing these cheques into her bank account, the proceeds of these cheques
mingled with the other funds in her account.
• The question therefore is - who is the owner of the funds in the bank account?
• Is it the bank or the purchasers of the property?
• See the Kotze case and other cases.
• The purchasers hold a special interest in the funds and the money, despite the fact that
they are now incorporeal credits in the bank account and not, for instance, individual
coins or notes.

3. Establish unlawfulness

• Will Mrs X’s liquid fund defence succeed?

• In the first place, discuss whether the funds were held in trust or merely in a
debtor/creditor relationship.

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• Were they her funds to deal with as she pleased for her own benefit, or were they
really held in trust for the complainant?
• If the parties expressly or impliedly agreed that an equivalent liquid fund would be
retained from where the funds would be available on the due date, the intention
would most probably be that the funds were to be held in trust and not in a debtor-
creditor situation.
• As a general rule, if the funds were held in trust and the trustee has enough funds at
his disposal to carry out instructions on a continuous basis (the so-called “liquid fund”
defence), theft will not be committed if the funds are so used.
• If the funds were received by the Mrs X for a specific purpose, the funds should
only be used for that specific purpose.
• In our case, Mrs X received funds for deposit into LSM’s account and not her own.
• See the case of Harper, which dealt with theft of monies received by an agent with
instructions to devote it to a specific purpose.
• Apply the remarks made by the judge to the facts at hand in this case study.
• The important case is, however, that of S v Visagie where the judge held that the
“liquid fund” defence had a restricted ambit in that it was restricted to cases where such
monies were in fact held in trust by the accused.
• In that case an estate agent appropriated certain cheques representing the deposits of
prospective purchasers by depositing them into her personal bank account.
• The estate agency’s rules were to the effect that these deposits should only be
paid into the estate agency’s account.
• The Court found that the estate agent had never been authorised to hold the
monies in trust and that her position was not that of someone holding monies in trust.
Instead, her position was that she only had temporary custody of the cheques,
analogous to that of a messenger sent to a bank to deposit cheques or money on
behalf of someone else.
• As she did not hold the monies in trust, it therefore made no difference that she
may have maintained sufficient liquid funds from which to reimburse the complainants.
• The liquid fund defence was therefore not applicable to her situation. She was
accordingly convicted of theft.
• In our case, Mrs X was therefore not holding any monies in trust. Instead, her
position was akin to that of a messenger who should have deposited the cheques in
the account of her principal, LSM estate agency, on behalf of her clients.
• This defence is therefore not available to her.

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4. Establish intention

• See the R v Milne and Erleigh judgments.

• Even if she intended to return the money, it would still be theft.
• It furthermore depends on the facts whether she knew that her actions were
unlawful.
• In the Visagie case, the accused deposited the funds in her overdraft account and it
was unlikely that she could pay the complainant -purchasers back the capital and
interest portions.
• Other circumstantial evidence, such as conflicting statements made by Mrs X,
could also be indicative of an intention to steal.

Assessment activity 15

Johnny is a professional assistant employed by Biggs Inc., a firm of attorneys. Johnny uses
the vehicle, which belongs to Biggs, to collect documents from other firms of attorneys all
around Johannesburg.

The vehicle is formally handed over to him every morning by one of the partners of Biggs
and he is supposed to return the vehicle every day at 17h00.

One morning after he has completed his errands, he decides to visit his friend, Peter. Peter
then asks Johnny to lend him the vehicle because he has to take his frail mother to hospital
urgently. Johnny accedes to Peter’s request. However, Peter takes the vehicle to a friend
who operates a car-hijacking syndicate and hands the vehicle over to his friend, Paul. Peter
then phones Johnny and tells him that he has just been hijacked and is stranded somewhere
in the outskirts of Johannesburg. Johnny realises that he is in trouble and tells his employer at
Biggs that he (Johnny) has been hijacked.

The police, however, receive information and trace the vehicle to where it is still parked in
Paul’s garage. Paul informs the police that he bought the vehicle that same day from Peter
and he did not know that Peter was not the actual owner of the vehicle.

The police, in possession of a search warrant, search Paul’s premises and seize 10 (ten)
identity documents bearing Paul’s photograph but with different names. The police establish
that the identity documents belong to actual RSA citizens.

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The police also seize 50 (fifty) brand new watches still in their wrapping that are hidden in
the garage. When confronted about the watches, Paul tells the police that he does not know
where they come from – he says that someone must have hidden them in the garage. The
police cannot establish who the owner(s) of the watches are.

In the above scenario, discuss who could be charged with what. (30 marks)

Guidelines for acceptable answers – Question 15

Consider the following, and note that there might be more possible offences with which the
suspects could be charged. All the elements of the possible crime under consideration should
be discussed, but for our current purposes only the most relevant issues will be mentioned.

Johnny

Theft of the motor vehicle

Appropriation is proved once it is proved that the accused assumed control over the goods
and excludes the owner of this property.

Unlawfulness Johnny’s employer at Biggs consented to Johnny’s use of the vehicle. He did
not, however, consent to the use of the vehicle for private purposes. However, the fact
remains that the vehicle was not removed from Biggs’ possession without their permission.

Intention The State will have difficulty in proving that Johnny intended to permanently deprive
Biggs of his rights over the vehicle. It is therefore unlikely that Johnny will be convicted of
theft if he is charged with the crime of theft.

Contravening section 1(1) of Act 50 of 1956: Unlawful appropriation of the use of

another's property Johnny used the vehicle for his own purpose without a bona fide claim of
right and without the consent of the owner, Biggs. That said, he removed the property from
the control of the owner with the consent of the owner or another person competent to give
such consent.

Where the owner or possessor of an article consents to the use of the article by another
person and that person then uses the article for his own purposes, the section would probably
not be contravened.

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Fraud (in respect of what he told Biggs) It is unlikely that Johnny will be successfully
prosecuted for fraud. The misrepresentation did not cause the prejudice (potential or
temporary loss of the vehicle). However, technically it may also be argued that the fact that
Johnny did not, in the first place, disclose to his boss that Peter had “borrowed” the car
constituted a misrepresentation which was potentially prejudicial to the company. Whether
Johnny had the necessary intention to defraud will however still have to be established,
namely that he intended to defraud the company and to cause prejudice or potential prejudice.

Peter

Theft From the evidence it is quite clear that Peter unlawfully appropriated the vehicle with
the intention to permanently deprive the owner of its rights in respect of the vehicle.

Paul

Theft It seems clear that Paul took possession of the vehicle, knowing that it was indeed
stolen. There is at least sufficient prima facie evidence to charge him with theft. Refer
to the material.

In the alternative he could be convicted of contravening section 37 of Act 62 of 1955:

Receiving stolen property without reasonable cause for believing goods properly acquired.

Contravening section 36 of Act 62 of 1955: Failure to give satisfactory account of

possession of goods

Paul was found in possession of goods for which there was a reasonable suspicion that they
had been stolen. The fact that the watches were still in their wrapping and that it is unlikely
that any person would own or possess such a number of watches who is not trading in items
of that nature confirms the reasonableness of the suspicion. In respect of the other element, it
is also clear that Paul was unable to give a satisfactory account of such possession. His
version - that some unknown person could have gained entry to his garage and left the
items there for some unknown reason, without his knowledge - is so unlikely that it cannot
reasonably be possibly true.

Contravening section 18 of the Identification Act

Section 18 (1): it is an offence to imitate, alter, deface any identity card, or to possess an
identity card which has been imitated, altered or defaced.

From the facts it is clear that Paul could be convicted of this offence(s).

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TOPIC 3.4

Corruption

Extent of corruption in South Africa

There is general consensus that corruption is one of the greatest dangers to a successful
free-market economy because it distorts the balance between what a willing purchaser is
willing to pay and what a willing seller is willing to accept for an item(s).

This perception is not without basis, given that the media reports, virtually every day, about
people in power who abuse their positions in order to gain an unfair advantage for
themselves, their relatives, and other criminally minded persons.

Measures to combat corruption

There are a number of legislative measures to combat corruption in the public service
specifically, such as:
• Section 217 of the Constitution.
• Public Funds Management Act, 1 of 1999.
• Municipal Finance Management Act, 56 of 2003.

A discussion of the relevant provisions within these Acts (and relevant regulations issued in
terms of the last mentioned two Acts) falls outside the scope of this module. It is, however,
important to be aware of the provisions of these Acts when there is an allegation that a
public official committed wrongdoings in respect of public monies, including corrupt activities
relating to public monies or the improper awarding of tenders.

Apart from the Prevention and Combating of Corrupt Activities Act, 12 of 2004, which we will
discuss in detail, we will also briefly discuss the following Acts which contain reporting
provisions related to corrupt activities:

• The Auditing Professions Act, 26 of 2005

• The Regulations issued in terms of the Companies Act, 71 of 2008
• Municipal Funds Management Act, 56 of 2003
• Public Funds Management Act, 1 of 1999

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1. The Prevention and Combating Of Corrupt Activities Act 12 of 2004

For the purposes of this module, we will focus on the Prevention and Combating of
Corrupt Activities Act, 12 of 2004.

This Act contains detailed and comprehensive provisions dealing with corrupt activities in
the private and the public sector. It makes provision for:
1. a general offence of corruption,
2. offences relating to specific groups of persons,
3. offences relating to specific matters, and
4. offences relating to the failure to report certain offences.

A thorough comprehension of the general offence of corruption, contained in section 3, is of

vital importance. Most of the elements covered in section 3 are also involved in other,
more specific, corruption offences.

We will also consider section 10, which deals with the offence of receiving or the
offering of unauthorised gratification.

Section 3 - Description of the general offence of corruption

Any person who, directly or indirectly-

(a) accepts or agrees or offers to accept any gratification from any other person,
whether for the benefit of himself or herself or for the benefit of another person; or
(b) gives or agrees or offers to give to any other person any gratification, whether for the
benefit of that other person or for the benefit of another person, in order to act,
personally or by influencing another person so to act, in a manner –
(i) that amounts to the-
(aa) illegal, dishonest, unauthorised, incomplete, or biased; or
(bb) misuse or selling of information or material acquired in the
course of the exercise, carrying out or performance of any powers,
duties or functions arising out of a constitutional, statutory, contractual
or any other legal obligation:
(ii) that amounts to-
(aa ) the abuse of a position of authority;
(bb) a breach of trust; or
(cc) the violation of a legal duty or a set of rules;
(iii) designed to achieve an unjustified result; or
(iv) that amounts to any other unauthorised or improper inducement to do or

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not to do anything
is guilty of the offence of corruption.

Shortened definition of the general crime of corruption

If one applies the rules for analysing sentences by provisionally cutting out the conjunctive
words or phrases, the main sentence of the definition quoted above reads as follows:

Anyone that
(a) accepts any gratification from any other person, or
(b) gives any gratification to any other person,
in order to act in a manner that amounts to the illegal exercise of any duties, is guilty of the
offence of corruption.

It is not necessary for you to memorise the definition of the general crime in section 3 quoted
above. In the examination we will not expect you to know the exact content of this section.
However, you must know the shortened version of the section set out in the grey background
(above) for the examination.

Section 10: Description of the offence of receiving or offering an unauthorised

gratification

Any person –
(a) who is party to an employment relationship and who, directly or indirectly, accepts or
agrees or offers to accept from any other person any unauthorised gratification,
whether for the benefit of that person or for the benefit of another person; or
(b) who, directly or indirectly, gives or agrees or offers to give to any person who is party
to an employment relationship any unauthorised gratification, whether for the benefit
of that party or for the benefit of another person,
in respect of that party doing any act in relation to the exercise, carrying out, or performance of
that party's powers, duties or functions within the scope of that party's employment
relationship, is guilty of the offence of receiving or offering an unauthorised gratification.

The elements of the offence of receiving or offering an unauthorised gratification

• Any person who is a party to an employment relationship,

• and who directly or indirectly accepts or offers to accept,
• any unauthorised gratification,
• in respect of that party,

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• doing any act,

• in relation to the exercise, carrying out or performance of that person’s powers,
duties, or functions,
• within the scope of that party’s employment relationship is guilty of the offence of
receiving an unauthorised gratification.

On the other hand-

• Any person (which does not have to be in an employment relationship)
• who directly or indirectly gives or agrees to give
• an unauthorised gratification
• in respect of the person who is party to an employment relationship,
• doing any act,
• in relation to the exercise, carrying out or performance of that person’s powers, duties,
or functions,
• within the scope of that party’s employment relationship
• is guilty of the offence of offering an unauthorised gratification.

Discussion: Section 3 compared with section 10

Unlike section 3, section 10 requires that one of the parties should be in an employment
relationship, as defined in the Act. It is however not a requirement that the offender accepts
the gratification in order to act in one of the irregular manners set out in section 3. Similar
conduct was also punishable in terms of the common law offence of bribery (now repealed).
By receiving a gift employees may compromise themselves and may sooner or later feel
obliged to do a favour in return. The section is aimed at the protection of the integrity of the
office held by the employee.

Section 10 also requires that the gratification should be unauthorised. Section 3 does not
require the gratification to be unauthorised.

In terms of section 3, the gratification should be offered/accepted etc. in order to act in a

certain prescribed manner, in other words with the intent to obtain certain results. In terms of
section 10, on the other hand, the scope of impermissible conduct is much wider, since the
giving or accepting should only be in respect of that party doing something in relation to the
exercise, carrying out or performance of his (or her) powers, duties or functions. No
impropriety is required. The person in the employment relationship should do something in
relation to the exercise, carrying out or performance of that party’s powers, duties or functions
within the scope of that part’s employment relationship. It is therefore clear that if the person

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receives an unauthorised gratification to do something that is unrelated to his duties or which

does not fall within the scope of that person’s employment relationship he, or the person who
offered the gratification, cannot be convicted under this section.

Some definitions contained in the Act

“Giving” includes lending / granting / conferring / promising / procuring and agreement or

offer of the above.

“Accepting” includes demanding / soliciting / promising / offering / asking for / seeking /

requesting / receiving and agreement or offer of the above.

The “Gratification” element is wide and it includes:

• money, whether in cash or otherwise;
• any donation, gift, loan, fee, reward, valuable security, property or interest in
property of any description, whether movable or immovable, or any other similar
advantage;
• the avoidance of a loss, liability, penalty, forfeiture, punishment or other
disadvantage;
• any office, status, honour, employment, contract of employment or services, any
agreement to give employment or render services in any capacity and residential or
holiday accommodation;
• any payment, release, discharge or liquidation of any loan, obligation or other
liability, whether in whole or in part;
• any forbearance to demand any money or money's worth or valuable thing;
• any other service or favour or advantage of any description, including protection
from any penalty or disability incurred or apprehended or from any action or
proceedings of a disciplinary, civil or criminal nature, whether or not already
instituted, and includes the exercise or the forbearance from the exercise of any
right or any official power or duty;
• any right or privilege;
• any real or pretended aid, vote, consent, influence or abstention from voting; or
• any valuable consideration or benefit of any kind, including any discount,
commission, rebate, bonus, deduction or percentage.

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Presumptions in terms of section 24

A. When a person is charged with an offence under part 1 or 2 or section 21 of

chapter 2 - this includes section 3 but excludes section 10 - proof that
a) someone accepted or agreed or offered to accept any gratification or
b) someone gave or agreed or offered to give any gratification to certain
specified persons and the State can show that despite reasonable steps
taken, it was not able to link the acceptance or the giving to any lawful
authority or excuse on the part of the accused, then that evidence is sufficient
proof that the accused accepted the gratification in order to act in a manner
that amounts to the –
(i) (aa) illegal, dishonest, unauthorised, incomplete or biased exercise of
his duties or
(bb) misuse or selling of information or material acquired in the course
of the exercise of his duties.
(ii) (aa) abuse of a position of authority
(bb) breach of trust
(cc) violation of legal duty or a set of rules
(iii) any other unauthorised or improper inducement to do nor not
to do anything.

Or which is otherwise designed to achieve an unjustified result.

It is important to note that this presumption can be rebutted by the accused if evidence to the
contrary that raises reasonable doubt is led.

B. Note, also, the presumption relating to the acceptance of a gratification by a public officer
whose duties include the detection, investigation, prosecution or punishment of offenders as
per section 24 (2) of the Act. It is not necessary to prove that the said public officer
(accused) believed that an offence had been committed before he or she can be convicted.

Example
Where a police official threatens to arrest a foreign national on the unsubstantiated ground
that he is illegally in the R.S.A, unless the foreign national pays him or her a bribe, it is not
necessary for the State to prove that the accused actually believed that the foreign national
was committing the offence of being illegally within the borders of the R.S.A.

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In terms of Section 25 of the Act, the following are not valid defences to a charge of an
offence under Part 1, 2, 3 or 4 or sections 20 and 21. It cannot be a valid defence for an
accused to contend that he or she:
• did not have the right, power or opportunity to perform or not to perform the act in
relation to which the gratification was given/offered,
• did not intend to perform or not perform the said act,
• failed to perform or not perform the said act.

Both sections 3 and 10 are therefore covered by section 25.

Also take note that the Act also creates offences in respect of corrupt activities relating to
specific persons such as:

Specific person Section

Public officers Section 4
Foreign public officials Section 5
Agents Section 6
Members of legislative authority Section 7
Judicial officers Section 8
Members of the prosecuting authority Section 9

On the other hand, certain offences relate to specific matters such as:

Specific matter Section

Witnesses and evidential material Section 11
Contracts Section 12
Procuring and withdrawal of tenders Section 13
Auctions Section 14
Sporting events Section 15
Gambling games and games of chance Section 16

The Act also contains offences relating to unacceptable conduct, such as:

Unacceptable conduct Section

Unacceptable conduct relating to witnesses Section 18
Intentional interference with, hindering or Section 19
obstructing of investigation of offences

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For the sake of completeness, we can also mention certain other offences relating to corrupt
activities, such as:

Other offences Section

Accessory to or after an offence Section 20
Attempt, conspiracy and instigating another person Section 21
to commit an offence

Extra-territorial jurisdiction

Another indication that the intention of the legislature was to cast its net as wide as possible
can be found in section 35 of Act 12 of 2004.

This section confirms that South African courts have jurisdiction in respect of corrupt activities
committed outside the Republic, notwithstanding the fact that such activities may not
constitute offences at the place of commission.

The section not only applies to individuals/citizens, but also to a company incorporated or
registered as such under any law in the Republic or anybody of persons corporate or un-
incorporated in South Africa.

Some case law

These cases were heard before the enactment of the aforesaid Act 12 of 2004 and you are
well advised to see what impact Act 12 of 2004 would have if the cases were to be heard after
the said Act had been passed:

S v Mphanga 2004(1) SACR 96 (N) An interpreter at Court was paid for doing away with a
police docket. The Court held that he was not entrusted with a power or duty in that regard
and he was therefore acquitted.

S v Xaba 1996 (2) SACR 259 (N) The complainant was falsely accused by the police that
he failed to stop at a stop sign and they attempted to extract a bribe from him.

The accused argued that they did not have the duty or power to arrest as the complainant
had done nothing wrong.

The Court held that they had the general power to arrest – it did not matter that they did
not have that specific power in the circumstances. In S v Shaik and Others 2007 (1) SACR

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247 (SCA,) it was not in dispute that Shaik had given Zuma benefits which were not legally
due at a time when Zuma held public office. It was in dispute, however, that such benefits had
been given “corruptly”. The Court held that “duty” in s 1(1) (a) (i) of the previous Corruption
Act included statutory and contractual obligations such as those imposed by ss 136(2) and
96(2) of the Constitution and that it could not be said that the Corruption Act intended “duty” to
refer restrictively to “function”. It followed, therefore, that Shaik had given benefits to Zuma
with the intention of influencing him to commit, or omit to do, any act in relation to his duties in
terms of ss 96(2) or 136(2) of the Constitution and therefore had committed an offence in
terms of s (1)(1) (a) (i) of the Corruption Act.

Failure to comply with reporting duties

We will focus on Act 12 of 2004, but this may also be a convenient opportunity to briefly
mention reporting duties that may otherwise arise.

A novel feature of the abovementioned Prevention of Corrupt Activities Act is contained in

section 34: The duty to report certain offences. Section 34 reads as follows:

(1) Any person who holds a position of authority and who knows or ought reasonably to
have known or suspected that any other person has committed –
(a) an offence under Part 1, 2, 3 or 4, or section 20 or 21 (in so far as it relates to
the aforementioned offences) of Chapter 2; or
(b) the offence of theft, fraud, extortion, forgery or uttering a forged document,
involving an amount of R100 000 or more, must report such knowledge or
suspicion or cause such knowledge or suspicion to be reported to any police
official.
(2) Subject to the provisions of section 37(2), any person who fails to comply with
subsection (1), is guilty of an offence.
(3) (a) Upon receipt of a report referred to in subsection (1), the police official
concerned must take down the report in the manner directed by the National
Commissioner, and forthwith provide the person who made the report with an
acknowledgment of receipt of such report.
(b) The National Commissioner must within three months of the commencement of
this Act publish the directions contemplated in paragraph (a) in the Gazette.
(c) Any direction issued under paragraph (b), must be tabled in Parliament before
publication thereof in the Gazette.
(4) For purposes of subsection (1) the following persons hold a position of authority,
namely –
(a) the Director-General or head, or equivalent officer, of a national or provincial

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department:
(b) in the case of a municipality, the municipal manager appointed in terms of
section 82 of the Local Government: Municipal Structures Act, 1998 (Act No 117
of 1998);
(c) any public officer in the Senior Management Service of a public body;
(d) any head, rector or principal of a tertiary institution;
(e) the manager, secretary or a director of a company as defined in the Companies
Act, 1973 (Act No 61 of 1973), and includes a member of a close corporation
as defined in the Close Corporations Act, 1984 (Act No 69 of 1981);
(f) the executive manager of any bank or other financial institution;
(g) any partner in a partnership;
(h) any person who has been appointed as chief executive officer or an equivalent
officer of any agency, authority, board, commission, committee, corporation,
council, department, entity, financial institution, foundation, fund, institute,
service, or any other institution or organisation, whether established by
legislation, contract or any other legal means;
(i) any other person who is responsible for the overall management and control of
the business of an employer; or
(j) any person contemplated in paragraphs (a) to (i), who has been appointed in
an acting or temporary capacity.

Important aspects of section 34:

• any person in a position of authority who knows or ought reasonably to have

known or suspect that another person has committed:
o corruption or
o the offences of theft, fraud extortion, forgery or uttering of a forged document,
involving R100 000 or more
• must report such knowledge or suspicion or cause same to be reported to a police
official.

The Act sets out which persons hold a position of authority.

Due to the typographical exposition of this section, it is not clear whether all corruption or only
corruption involving R100 000 or more should be reported. A possible shortcoming is also
the legislature’s failure to specify the time limit in which the knowledge or suspicion should be
reported.

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Where more than one person holds a position of authority it is furthermore not clear as to who
should, primarily, have the responsibility to file a report.

2. Reporting duties in terms of the Public Funds Management Act

The Treasury Regulations issued in terms of the PFMA during May 2000 read as follows:

“When it appears that the State has suffered losses or damages through criminal acts or
possible criminal acts, the matter must be reported, in writing, to the accounting officer and
the South African Police Services. In the case of omissions, the matter must be reported,
in writing, to the accounting officer. Whether or not the person is still in the employ of the
state, the accounting officer must recover the value of the loss or damage from the person
responsible.”

Furthermore, the Minister of Finance has, in terms of section 76(4) (c) of the PFMA, approved
regulations in respect of the Framework for Supply Chain Management (SCM). These
regulations commenced on 5 December 2003.

In terms of section 4(2) of these SCM regulations, an official in the supply chain management
unit who becomes aware of a breach of or failure to comply with any aspect of the supply
chain management system must immediately report the breach or failure to the Accounting
Officer or Accounting Authority, in writing.

In terms of section 9(1) of the SCM framework, the accounting officer must investigate any
allegations against an official or other role player of corruption, improper conduct or failure
to comply with the supply chain management system and, when justified, report any conduct
that may constitute an offence to the SA Police Service.

3. Reporting duty in terms of the Municipal Funds Management Act

The MFMA [section 32(6)] prescribes as follows:

“The Accounting Officer must report to the South African Police Service all cases of
alleged
• irregular expenditure that constitute a criminal offence; and
• theft and fraud that occurred in the municipality.”

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4. The reporting duty in terms of labour common law principles

Due to the employer/employee relationship that results in a position of trust, any employee
has a common law duty to report knowledge of any fact that may have a negative impact
on the employer’s business to his or her employer. Failure to comply may result in disciplinary
action. The Protected Disclosures Act, 26 of 2000, was discussed in module AUE4864. The
preamble to the Protected Disclosures Act (“PDA”) recognises these reporting duties of
employees. On the other hand, the PDA also addresses the duty of the employer to protect
employees who “blow the whistle” on irregular activities.

5. Reporting duties for auditors: The Auditing Professions Act, 26 of 2005 (“APA”)

Section 44(1) (a) of the Auditing Professions Act (APA) provides that, where a registered
auditor, that is a firm, is appointed by an entity to perform an audit that firm must, immediately
after the appointment is made, take a decision as to the individual registered auditor or
registered auditors within the firm that is responsible and accountable for that audit.

Section 1 of the APA provides the definition of a registered auditor as an individual or firm
registered as an auditor with the Regulatory Board, which is the Independent Regulatory
Board for Auditors (IRBA) established by section 3 of the APA.

Section 3 provides IRBA with the legal status of a juristic person and prescribes that it is
subject to the Constitution and relevant laws, specifically the PFMA.

The obligation to report a reportable irregularity to the IRBA (the Regulatory Board) arises
when the individual registered auditor(s) responsible and accountable for the audit of an entity
is satisfied or has reason to believe that an unlawful act or omission committed by any person
responsible for the management of that entity, and which meets the requirements of the
definition of a “reportable irregularity”, has taken place or is taking place in respect of that
entity. The auditor must then without delay send a written report to that effect to the IRBA (the
Regulatory Board).

6. Reporting duties of independent reviewers in terms of the Regulations4 issued

in terms of the Companies Act, 71 of 2008

An independent reviewer is a professional authorised to issue mandatory independent review

reports for certain5 companies. Such an independent reviewer must report any “reportable
irregularity” to the Companies Commission in terms of Regulation 29. The responsibility is to
the Companies Commission and not the IRBA.
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A "reportable irregularity" means –

“any act or omission committed by any person responsible for the management of a company,
which-
(i) unlawfully has caused or is likely to cause material financial loss to the company or
to any member, shareholder, creditor or investor of the company in respect of his,
her or its dealings with that entity; or
(ii) is fraudulent or amounts to theft; or
(iii) causes or has caused the company to trade under insolvent circumstances.”

If the independent reviewer is satisfied or has reason to believe that a reportable irregularity
has taken place or is taking place in respect of that company he or she must, without delay,
send a written report to the Companies Commission.

In terms of Regulation 29(7), the independent reviewer must also, within three business days
of sending the report to the Commission, notify the members of the board of the company
under consideration of the report to the Companies Commission. Further actions are then
prescribed in terms of the said Regulation.

7. Public Service Regulations

The Public Service Code of Conduct also imposes a reporting duty on all public service
employees to report any knowledge or suspicion of fraud, corruption, nepotism,
maladministration, and any offence or act prejudicial to the public interest.

Note that there are a number of other laws which place a reporting duty on certain classes
of persons. Also note that the failure to comply with reporting duties is not always visited with
a criminal sanction. The specific legislation should be consulted in that regard should the need
arise. For example, the reporting duties in terms of the Financial Intelligence Centre Act were
discussed in module ALF4863 – make a point of referring back to that study guide and make
sure that you are still familiar with the requirements.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 116-123.

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Assessment activity 16

QBA Ltd (an international company based in the United Kingdom) made a booking at a hotel
in the Seychelles and paid for the airplane tickets for a certain Mr Francis, his wife and his
three children to the Seychelles. The aeroplane is scheduled to leave the RSA on 20 May
2012 and the return tickets were booked for 27 May 2012.

The trip has indeed been booked. Mr Francis alleges that his agreement with QBA Ltd was
that they will pay his travel and accommodation expenses, but that he will repay them towards
the end of 2012. Mr Francis alleges that he entered into the agreement with QBA Ltd whilst in
London in January 2012 and, since no offence was committed in the UK, you are wasting
your time in investigating the matter.

Mr Francis is the procurement manager at Rocket Ltd. QBA Ltd is a current supplier of leather
to Rocket Ltd, which is a shoe manufacturer. Mr Francis further alleges that the Tender
Committee decides who the successful tenderer will be and not he himself. He recommended
that QBA Ltd and 4 (four) other companies should be on the shortlist for a tender to supply
leather to Rocket Ltd, but he does not have the power to influence the decision as to who
should be the eventual successful tenderer. The tender will be awarded on 20 June 2012 and
the successful tenderer will also then be notified.

In a letter, QBA Ltd informed Rocket Ltd that it regrets the incident but states that they never
intended to bribe Mr Francis. In terms of Rocket Ltd’s internal policy “no employee is
allowed to receive any benefit of whatever nature from suppliers”.

Who can be criminally charged for any offence(s) on these facts? If guilty parties are
identified, for which specific offence(s) may they be charged? Fully substantiate your answer
by discussing the relevant elements of the crime (if any) under consideration. Refer to all the
relevant statutory provisions and case law, where applicable. (30 marks)

Guidelines for acceptable answers – Question 16

1. Debate whether QBA Ltd & Mr Francis can be charged. Refer to the relevant
elements of the crime in sections 3 and 10 of Act 12 of 2004, the definitions
contained in the said Act, the presumptions contained in section 24, the defences
referred to in section 25 and the provisions in section 35 which confer extra-
territorial jurisdiction to South African courts.
2. Section 3: The General Offence of Corruption - elements to be discussed:
• Any person - This will include a legal person such as QBA Ltd and a natural

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person such as Mr Francis.

• Who accepts or offers to accept - This will cover Mr Francis’s actions. Refer to and
discuss the extended definition of “accepting” which includes demanding/
soliciting/promising/offering/asking for/seeking/requesting/receiving and agreement or
offer of the above.
• Who gives or agrees or offers to give - This will cover the actions of QBA Ltd. Also
refer to and discuss the extended definition of “giving” which includes lending/
granting/conferring/promising/procuring and agreement or offer of the above. Even if Mr
Francis’s allegation that it was only a “loan” which was intended to be repaid, it will still
fall under the extended definition (“lending”) and will not be a defence on the charge of
contravening section 3 of the Act.
• A gratification - also refer to the extended definition of “gratification”. In our case,
study the following phrases in the definition, which should be highlighted and
discussed:
• “Any …loan” - Once again, even if Mr Francis intended to repay the holiday and
travel expenses it will make no difference- a loan is also seen as “gratification”.
• “Any ...... residential or holiday accommodation” - All the accommodation expenses of
the Francis family are therefore specifically included in the definition of gratification.
• “Any valuable consideration or benefit of any kind, including any discount, commission,
rebate, bonus, deduction or percentage - This is a catch-all phrase which indicates
that the intention of Parliament was to cast its net as wide as possible in this regard.
All the benefits that Mr Francis and his family received in this regard will therefore be
seen as part of the “gratification”.
• In order to act – This should be discussed. This phrase seems to suggest that the
intent when offering or accepting the gratification should achieve some of the
impermissible results referred to under the next bullets (i)-(iii), or which is otherwise
designed to achieve an unjustified result.
• In a manner that amounts to the:
o (i)(aa) illegal, dishonest, unauthorised, incomplete or biased exercise of his
duties - Did Mr Francis act in such a manner on the facts? What about QBA
Ltd – by providing him with the gratification, what did they expect him to do?
Why provide him with the gratification? Discuss.
o (bb) misuse or selling of information or material acquired in the course of the
exercise of his duties - No clear evidence that Mr Francis provided QBA Ltd
with information. Can we prove this circumstantially?
o (ii)(aa) abuse of a position of authority - Discuss whether Mr Francis abused
his position. And what about QBA Ltd? What did they expect?
o (bb) breach of trust - Mr Francis is an employee and should act in good faith

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towards his employer. Discuss whether he did so in these circumstances.

o (cc) violation of legal duty or a set of rules – The internal policy of Rocket Ltd
becomes relevant in this regard as far as Mr Francis is concerned.
o (iii) any other unauthorised or improper inducement to do or not to do anything -
In respect of Mr Francis it is clear from the facts that the inducement was
indeed unauthorised. Was it also improper in the circumstances? Discuss QBA
Ltd’s position also.
• Or which is designed to achieve an unjustified result - Discuss the position of Mr
Francis and that of QBA Ltd as set out in the preceding paragraphs.

3. Other offences that can also find application in Section 10 – Discuss the
following elements of the offence of receiving or offering an unauthorised
gratification.

• Any person who is a party to an employment relationship - Mr Francis is clearly in an

employment relationship with Rocket Ltd.
• And who directly or indirectly accepts or offers to accept or gives or agrees or
offers to give. Same as discussed under Section 3 under paragraph 2. Any
unauthorised gratification. Gratification as defined discussed under section 3. Was it
unauthorised? In terms of Rocket Ltd’s policy, it was indeed unauthorised.
• In respect of that party - Take note difference between section 3 and section 10 in this
regard and discuss relevance.
• Doing any act - Take note of wide ambit. Mr Francis did recommend that QBA Ltd be
on the shortlist.
• In relation to the exercise, carrying out or performance of that person’s powers,
duties, or functions within the scope of that party’s employment relationship - Once
again, take note of the wide ambit (“in relation to”) of this section.

Also mention Contracts (section 12) and Procuring and withdrawal of tenders (section 13).

4. Discuss the presumptions contained in section 24 of the Act and apply to

the facts at hand.

When Mr Francis and/or QBA Ltd is/are charged with an offence of inter alia section 3
and the State proved that:
(a) Mr Francis accepted or agreed or offered to accept any gratification or
(b) QBA Ltd gave or agreed or offered to give any gratification to Mr Francis

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and the State can show that despite reasonable steps taken, it was not able to link
the acceptance or the giving to any lawful authority or excuse on the part of Mr
Francis, then that evidence is sufficient proof that Mr Francis accepted the gratification
in order to act in a manner that amounts to the –
(i) (aa) illegal, dishonest, unauthorised, incomplete or biased exercise of his
duties or
(bb) misuse or selling of information or material acquired in the course of
the exercise of his duties.
(ii) (aa) abuse of a position of authority
(bb) breach of trust.
(cc) violation of legal duty or a set of rules.
(iii) any other unauthorised or improper inducement to do or not to do anything.
Or which is otherwise designed to achieve an unjustified result.

5. Extraterritorial jurisdiction – discuss section 35.

This section confirms that South African courts have jurisdiction in respect of corrupt
activities committed outside the Republic, notwithstanding the fact that such activities
may not constitute offences at the place of commission.

Apply to facts - Does Mr Francis’s contention that you are wasting your time
in investigating the matter therefore have any merit?

6. Case law

Discuss and evaluate the following cases in view of the provisions now contained in
section 25 of the Act:
• Shaik v S (power/duty)
• S v Mphanga (power/duty)

The defences contained in section 25 should also be discussed:

In terms of section 25 of the Act, it is not a valid defence to contend that:
• Mr Francis did not have the right, power or opportunity to perform or not to
perform the act in relation to which the gratification was given or offered. It
therefore does not further his case to contend that he had no final say in
the tender award process.
• Mr Francis or QBA Ltd did not intend to perform or not perform the said
act in relation to which the gratification was given / offered.

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7. Conclusion

Mr Francis and QBA Ltd can be successfully prosecuted for contravening section 3 of
Act 12 of 2004.

Mr Francis can be successfully prosecuted for contravening section 10 of the

same Act. It can also be argued that QBA Ltd can be charged as an accomplice in the
contravention of section 10 by Mr Francis. Alternatively, it can be argued that they
conspired with or instigated him to commit the offence of contravening section 10, as
envisaged by section 21 of Act 12 of 2004.

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STUDY UNIT 4
THE LAW OF EVIDENCE

Learning outcomes:
At the end of this study unit, you will
• be able to distinguish between the various types of evidence that may be produced in
court proceedings
• explain how such evidence should be produced in order to ensure its admissibility
• be able to compare the requirements for admissibility of the various types of
documentation in a court of law.
• be able to explain the burden of proof in both a criminal and civil case
• have a knowledge of and be able to illustrate the admissibility requirements for
computer- related evidence
• be able to explain the ways and means used to discredit the evidence of a witness and
possible related criminal sanctions
• be able to discuss and distinguish between the various types of privileges in South
African law
• be able to differentiate when an admission or confession would be admissible in a court
of law and to illustrate the importance of the distinction as SA law currently stands.
• be able to apply the legal principles, in respect of any of the aforesaid issues, to
any given set of facts

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TOPIC 4.1
Nature of and types/classes of evidence

Our overall aim in this study unit is to give you an understanding and knowledge of some of
the more frequently encountered issues regarding the admissibility of evidence in a court of
law or departmental hearing.

Any forensic auditor should have, at the very least, a good understanding of the basic
concepts involved in the law of evidence.

One of the main reasons why justice has not prevailed in a number of cases, civil and
criminal, was because the investigator did not adhere to the basic principles of the law of
evidence. An investigator should have a sound knowledge of these basic concepts in order to
know –
(a) what type of evidence to procure in the course of the investigation
(b) how to procure the evidence in order for the Court to subsequently accept the
evidence at the trial stage
(c) how the evidence could be introduced at court – in other words, which witnesses
(if any) should be called

Evidence consists of information put before a court or tribunal to enable the presiding officer
to decide on the facts in issue.

It may consists of the following types of evidence-

• Oral (witness testifies orally).
• Documentary (document is produced - either by a party from the bar or orally by a
witness).
• Real (an object is produced).

Nature of evidence

Evidence can also be of a circumstantial nature or of a direct nature.

Direct evidence is evidence of an observation by a witness (A testifies that he saw X forging

a document).

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Circumstantial evidence is indirect proof of a fact (X’s fingerprint is found on the forged
document).

It is not necessarily the case that direct evidence is always stronger evidence than
circumstantial evidence. Circumstantial evidence can sometimes carry more weight. In the
example above, the credibility of A can pose a problem whereas a fingerprint may well be
inherently more reliable (since it is, by its very nature, objective).

The burden of proof

In a criminal case the State has a duty to prove its case against an accused beyond a
reasonable doubt. If the accused’s case is reasonably possibly true, he or she should be
acquitted.

In a civil case the party wishing to prove its case has a duty to do so on a preponderance
(balance) of probabilities.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 12 (Standard of Proof).

Assessment activity 17

Brenda is Gavin’s business partner. On 2 January 2012, she takes out a life insurance
policy on Gavin’s life and she is also the beneficiary should he pass away. On 20 April 2012,
she is seen by a witness driving away from Gavin’s residence at 15h00. The witness
testifies that he heard an altercation between Gavin and a female person at approximately
14:00, but could not hear what it was all about. At 20:00 Gavin is found inside his residence
with a stab wound to his chest. The medical examiner estimates the time of death between
14:30 and 15:30. A bloodied knife is recovered from the scene, but does not produce any
forensic results. Brenda’s fingerprints are lifted from the scene of crime. This is the only
evidence that the State led in a criminal trial against Brenda. Brenda testifies that she was at
Gavin’s residence, but when she left at around 15:00 there was nothing wrong with him and
she has no idea who could have murdered him. She was not involved in an argument with
him. She also states that she regularly visited his home, and that explains her fingerprints at
the scene.

You are the judge. Classify and typify the evidence led. Pass judgment as to whether the

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State could prove its case. Would your judgment be different if it was a civil case? (10
marks)

Guidelines for acceptable answers – Question 17

Refer to the discussion in this topic.

Consider whether the case against Brenda is only of a circumstantial nature. Was she seen
murdering Gavin?

Witnesses testified – evidence was of an oral nature.

If the insurance policy is handed in as an exhibit it will be evidence of a documentary nature.

The document proves in writing that she was the beneficiary in the event of Gavin’s death.
The policy is of circumstantial evidence against Brenda on a charge of murder.

If the knife was handed in as an exhibit, it was real evidence. Her fingerprint is also real
evidence.

The fact that the witness could not testify as to the what the argument was all about and/or
that Brenda was indeed the other party to the altercation, the fact that no evidence was led
that nobody else did in fact enter Gavin’s residence after Brenda had left, and the credibility of
Brenda’s evidence are all factors that the judge should take into account when passing
judgment on her guilt.

At the end of the trial in a criminal case, would the State have failed to prove its case that
she murdered Gavin beyond reasonable doubt? Is Brenda’s version reasonably possibly
true? If so, she should be acquitted.

If we assume that the case against Brenda was of a civil nature (e.g. Gavin’s family claims a
sum of money from her for loss of support and/or damages for their emotional suffering), do
you think the Court can come to a different conclusion regarding Brenda’s guilt? The onus on
the plaintiff(s) will then only be that of proof on a preponderance of probabilities. Which
version is most probable? In the circumstances, and if the Court takes an overall view of
the available evidence argue whether or not, in your opinion, the Court may rule against
Brenda and award damages to the plaintiffs.

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TOPIC 4.2
Documentary evidence

As a result of the nature of a forensic investigator’s work it is inevitable that he or she would
be confronted with evidence in the form of documents. A document can constitute either
documentary evidence or real evidence.

What is “a document”?

The Criminal Procedure Act defines a document as:

“Including any book, pamphlet, record, list, circular, plan, placard, poster, publication,
drawing, photograph or picture.” –

In the common law, a document is defined as:

"Everything that contains the written or pictorial proof of something. It does not matter much
of what material it is made"

How to prove the document

Because the requirements for admissibility of real evidence and documentary evidence are
different, anyone who intends to submit a document should adopt the following procedure:

• Identify the document - do we need to prove the truth of its contents or not, is it real or
documentary
• Typify it (private, public, official).
• Decide which law applies (common or statutory or both).
• Establish what the requirements for admissibility are.

Types of documents

In order to meet the requirements for admissibility, documents are divided into three
categories:

1. Public documents

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2. Private documents
3. Official documents

Public documents

The common law definition of a public document is:

The document must have been made -

• By a public officer,
• in the execution of a public duty,
• intended for public use, and
• the public must have a right to access to it.

When a party tenders public documents as evidence, that party does not have to prove:
• Originality
• Authenticity
• The contents of the document

An example of a public document is a title deed.

Section 233 of the Criminal Procedure Act reads as follows:

“(1) Whenever any book or other document is of such a public nature as to be
admissible in evidence upon its mere production from proper custody, any copy
thereof or extract there from shall be admissible in evidence at criminal proceedings if
it is proved to be an examined copy or extract, or if it purports to be signed and
certified as a true copy or extract by the officer to whose custody the original is
entrusted.
(2) Such officer shall furnish such certified copy or extract to any person applying
therefore, upon payment of an amount in accordance with the tariff of fees prescribed
by or under any law or, if no such tariff has been so prescribed, an amount in
accordance with such tariff of fees as the Minister, in consultation with the Minister of
Finance, may from time to time determine”.

Private documents

All documents that are not covered by the definition of public documents are by nature private
documents.

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When a party wants to tender private documents as evidence, that party has to prove:

1. Originality
2. Authenticity
3. The contents of the document

1. Originality

Where a party consents to or admits the truth of the contents of the document, it is not
necessary to submit the original.

Normally, each document has only one original. There are exceptions to this rule, for
example:
• Where a document is drawn up in duplicate or triplicate AND each copy is signed by
the parties.
• Where a person, using carbon copying paper, simultaneously signs on more than one
page, all the pages bearing his (or her) signature are originals. A duplicate original is
an original.

Exceptions to the primary (original) evidence rule

There are a number of exceptions to the rule that the contents of a document can only be
proved by the production of the original document itself. These exceptions stem both from
common law and from statutory enactments. These exceptions are the following:

• Where the correctness of the content of a document is admitted by the opposing

party.
• In certain cases, secondary evidence of the contents of a private document is
admissible if there is an acceptable explanation for the non-availability of the original,
such as:
o Where the original has been lost or destroyed. The Court must be convinced
that notwithstanding diligent search, the document could not be found.
o Where it would be impossible or inconvenient to produce the original.
• Where the document is in the possession of the opposing party and he has failed to
produce it after reasonable notice calling on him to do so.
• Where the document is in the possession of a third party and the document cannot be
obtained by means of a subpoena duces tecum.
• Where the document is an official document.

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Official documents

Official documents can either be public or private documents.

An official document has the following requirements:

• It is in the custody and under the control of a state official/head of a department by
virtue of his office.
• It is in constant or regular use by a department and must always be available for use
or open to inspection or perusal.

The following documents are examples of official documents:

• Charge office occurrence books
• Cell registers
• Police cells occurrence books

See section 234 of the Criminal Procedure Act, which reads as follows:
“(1) It shall, at criminal proceedings, be sufficient to prove an original official
document which is in the custody or under the control of any State official by virtue of
his office, if a copy thereof or an extract there from, certified as a true copy or extract
by the head of the department concerned or by any State official authorized thereto by
such head, is produced in evidence at such proceedings.
(2) (a) An original official document referred to in subsection (1), other than the
record of judicial proceedings, may be produced at criminal proceedings only
upon the order of the attorney-general.
(b) It shall not be necessary for the head of the department concerned to appear
in person to produce an original document under paragraph (a), but such
document may be produced by any person authorized thereto by such head.
(3) Any official who, under subsection (1), certifies any copy or extract as true knowing
that such copy or extract is false, shall be guilty of an offence and liable on conviction
to imprisonment for a period not exceeding two years.”

Originality

Original official documents are protected from production at common law - their removal would
hinder and delay their official use, would make it impossible for others to consult them, and
would subject them to the risk of loss and damage.

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Authenticity

The mere production of an official document or a certified copy thereof is proof of its
authenticity, but not necessarily of the truth of its contents.

The contents of the document

An official document is not necessarily a public document. When the official document is a
private document, the State must still prove the contents of the document.

2. Authenticity

A document is authentic when it really is what it purports to be. It must be identified and
explained. When evidence is presented that a particular document has specific contents
and was completed or written by a particular person on a particular day and/ or at a
particular time, authenticity will be proved. A document must either be authenticated or
admitted when a party wishes to prove the truth of the contents of the document.

The following persons may authenticate and hand in a document –

• Someone who has lawful control and custody of the document.
• The author, executor or signatory of the document.
• Someone who has found the document in the possession or custody of the opposing
party.
• A handwriting expert.

In the following cases a document need not be authenticated:

• Documents more than 20 years old. Such documents are presumed to be authentic.
• Official documents.
• When the opposing party has produced it after being requested to do so.
• When the Court takes judicial notice of the document.
• When the opposing party acknowledges its authenticity.
• When foreign documents have been authenticated in their country of origin.
• Authenticity does not necessarily need to be proved by viva voce evidence. It can
also be proven by circumstantial evidence.

Some remarks regarding computer/electronic evidence

The admissibility of electronic evidence depends on whether it can be classified as real or

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documentary evidence. In terms of the provisions of the Electronic Communications and

Transactions Act 25 of 2002, discussed below, certain types of computer evidence are now
classified as being akin to real evidence.

If it is documentary evidence the admissibility requirements will be influenced by the fact as

to whether or not the document can be classified as a public or official document, as
discussed above.

The Electronic Communications and Transactions Act, 25 of 2002 (ECT Act)

This Act is of vital importance when dealing with computer evidence, because it sets out
the legal requirements for a “data message” to be admitted as evidence in court.

Some definitions

“Electronic communication” means a communication by means of a data message.

“Data” means electronic representations of information in any form.

“Transaction” means a transaction of either a commercial or non- commercial nature, and

includes the provision of information and e- government services.

“Data message” means data generated, sent, received or stored by electronic means and
includes —
a) voice, where the voice is used in an automated transaction, and
b) a stored record.

Originality

Section 14 makes it clear that, in certain defined circumstances, it is not necessary to

produce the original. This section reads as follows:

“(1) Where a law requires information to be presented or retained in its original form, that
requirement is met by a data message if—
(a) the integrity of the information from the time when it was first generated in
its final form as a data message or otherwise has passed assessment in
terms of subsection (2); and
(b) that information is capable of being displayed or produced to the person to
whom it is to be presented.

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(2) For the purposes of subsection 1 (a), the integrity must be assessed—
(a) by considering whether the information has remained complete and
unaltered, except for the addition of any endorsement and any change which
arises in the normal course of communication, storage and display;
(b) in the light of the purpose for which the information was generated; and
(c) having regard to all other relevant circumstances.”

Admissibility and weight

Section 15 deals with the admissibility and evidential weight of data messages.

“(1) In any legal proceedings, the rules of evidence must not be applied so as to deny
the admissibility of a data message, in evidence—
(a) on the mere grounds that it is constituted by a data message; or
(b) if it is the best evidence that the person adducing it could reasonably
be expected to obtain, on the grounds that it is not in its original form.
(2) Information in the form of a data message must be given due evidential weight.
(3) In assessing the evidential weight of a data message, regard must be had to—
(a) the reliability of the manner in which the data message was generated,
stored or communicated;
(b) the reliability of the manner in which the integrity of the data message
was maintained;
(c) the manner in which its originator was identified; and
(d) any other relevant factor.
(4) A data message made by a person in the ordinary course of business, or a copy or
printout of or an extract from such data message certified to be correct by an
officer in the service of such person, is on its mere production in any civil, criminal,
administrative or disciplinary proceedings under any law, the rules of a self- regulatory
organisation or any other law or the common law, admissible in evidence against any
person and rebuttable proof of the facts contained in such record, copy, printout or
extract.”

From this section, it is clear that a two-phased procedure is applied. First, the admissibility of
the electronic evidence is determined and, if it is found to be admissible, the evidential weight
of this evidence needs to be established.

It therefore seems that, except where the ECT Act specifically changes it, the ordinary law on
the admissibility of evidence applies to data messages.

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Hearsay element in document

If a computer-generated document is used merely to establish the fact that information was
sent, received or stored, it will not be seen as hearsay evidence. On the other hand, if the
document is tendered to a court to prove the truth of its contents, a person who has personal
knowledge of its contents should be called as a witness. If this cannot be done, the
document is classified as hearsay evidence.

Did you know?

As a general rule, hearsay evidence is inadmissible in a court of law. The exclusion of

hearsay evidence is based on the principles of fairness, because the other party would not
be able to exercise his right to contest evidence, and according to evidential law, principles
such as the “best evidence” rule hold sway (this rule requires that the best available evidence
be presented).

The position concerning hearsay evidence in a court of law is statutorily regulated in terms of
section 3 of the General Law Amendment Act, 45 of 1988, which reads as follows:

“Hearsay evidence

(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as
evidence at criminal or civil proceedings, unless —
(a) each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence
depends himself testifies at such proceedings; or
(c) the court, having regard to—
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence
might entail; and
(vii) any other factor which should in the opinion of the Court be taken into
account, is of the opinion that such evidence should be admitted in
the interests of justice.

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(2) The provisions of subsection (1) shall not render admissible any evidence which is
inadmissible on any ground other than that such evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection (1) (b) if
the Court is informed that the person upon whose credibility the probative value of
such evidence depends will himself testify in such proceedings: Provided that if such
person does not later testify in such proceedings, the hearsay evidence shall be left
out of account unless the hearsay evidence is admitted in terms of paragraph (a) of
subsection (1) or is admitted by the Court in terms of paragraph (c) of that
subsection.
(4) For the purposes of this section - 'hearsay evidence' means evidence, whether oral or
in writing, the probative value of which depends upon the credibility of any person
other than the person giving such evidence.”

Section 221 of the Criminal Procedure Act, 51 of 1977 deals with the admissibility of certain
trade or business records. It provides that, in criminal proceedings in which direct oral
evidence of a fact would be admissible, any statement contained in a document and tending
to establish that fact shall, upon production of the document, be admissible as evidence
of that fact if certain requirements are satisfied.

The document has to be (or must form part of) a record relating to any trade or business and
must have been compiled in the course of that trade or business, from information supplied,
directly or indirectly, by persons who have or may reasonably be supposed to have personal
knowledge of the matters dealt with in the information they supply.

The person who supplied the information recorded in the statement in question must be
dead or outside the Republic or unfit by reason of his or her physical or mental condition
to attend as a witness, or it must be impossible, with reasonable diligence, to identify or find
the person, or not be reasonably expected, having regard to the time which has elapsed since
he or she supplied the information as well as all the circumstances, to have any recollection
of the matters dealt with in the information he or she supplied. (See sections 221(1) (a) and
(b)).

For the purpose of deciding whether or not a statement is admissible as evidence under
this section, the Court may draw any reasonable inference from the form or content of the
document in which the statement is contained. (Section 221(2))

In estimating the weight to be attached to a statement admissible as evidence, regard shall be

had to all the circumstances from which any inference may reasonably be drawn as to the
accuracy or otherwise of the statement; and, in particular, to the question whether or not the

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person who supplied the information recorded in the statement did so contemporaneously with
the occurrence or existence of the facts stated, and to the question whether or not that
person or any person concerned with making or keeping the record containing the statement
had any incentive to conceal or misrepresent the facts (Section 221(3)).

Section 221 does not require the record to be compiled by a person who has personal
knowledge of the matters dealt with in the information. What is required is personal knowledge
by the person who supplied that information. Who that person or persons are is established by
having regard to the fact or facts in issue, facts which the State is trying to establish by its
reliance on the documents in question.

Although, in relation to records produced by computer technology the information so supplied

will often have passed through the hands of a chain of employees, such as in the present
matter, section 221 extends its application to include the “indirect” supply of knowledge.

Some case law

In S v Ndiki [2007] 2 All SA 185 (Ck), the Court held in regard to computer printouts that:
• If evidence depends solely on reliability and accuracy of computer / systems /
programs, it is real evidence. This will be the case where the computer and not a
person carries out the active functions.
• In terms of section 15 of the ECT Act, c e r t a i n data messages are t o b e treated as
real evidence and the Court has to consider the weight to be attached to the
evidence. Also see the case below.
• If the computer evidence is not real evidence but documentary evidence, which falls
within the definition of hearsay, it may still be admissible in terms of Act 45 of 1988.

In Ex parte Rosch [1998] 1 All SA 319 (W), the Court found that a computer printout from a
telecommunication company, reflecting information which was mechanically recorded by a
computer regarding the time, the length of a call and the number to which the call was made,
constituted direct evidence as opposed to hearsay evidence.

In such a case, the acceptance of the evidence is dependent upon the accuracy and reliability
of the operating system. Doubts as to the accuracy of the operating system may influence the
reliability of the evidence and the evidential weight to be given to this evidence.

The Court also found that the provisions of section 3 of the Law of Evidence Amendment Act,
45 of 1988, which deals with hearsay evidence, were not applicable to the computer printouts
presented as evidence as the printouts were found to have been generated by the computer
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itself without human intervention and that it can consequently not be said to constitute a
statement “the probative value of which depends upon the credibility of any person”, as
envisaged by subsection (4) of Act 45 of 1988. It was therefore not hearsay within section 3 of
the Act.

The Court considered the documents as constituting real evidence and admitted these as
such.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 421-425.
2. Joubert, Applied Law for Police Officials 2018 5th ed. p. 464-467.

Assessment activity 18

Discuss in what circumstances it would not be necessary to produce an original document in

a court of law (15 marks).

Guidelines for acceptable answers – Question 18

1. Discuss the common law exceptions, including the following:

Where a party consents to or admits the truth of the contents of the document, it is not
necessary to submit the original.

You should also discuss the general rule that each document has only one original and the
exceptions to this rule:
• Where a document is drawn up in duplicate or triplicate AND each copy is signed by
the parties.
• The fact that a duplicate original is an original.

2. Discuss the statutory and common law exceptions to the primary (original) evidence
rule: when will a copy be acceptable proof of the document?

• Where the correctness of the content of a document is admitted by the opposing

party.
• In certain cases, secondary evidence of the contents of a private document is
admissible if there is an acceptable explanation for the non-availability of the original,

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such as:
o Where the original has been lost or destroyed. The Court must be convinced
that notwithstanding diligent search, the document could not be found.
o Where it would be impossible or inconvenient to produce the original.
• Where the document is in the possession of the opposing party and he has failed to
produce it after reasonable notice calling on him to do so.
• Where the document is in the possession of a third party and the document cannot be
obtained by means of a subpoena duces tecum.
• Where the document is a public or an official document.

3. Discuss official and public documents and concentrate on the requirements of these
documents, namely:

A public document must have been made –

• By a public officer,
• In the execution of a public duty,
• Intended for public use, and
• The public must have a right to access to it.

Here, you need to refer to section 233 of the Criminal Procedure Act, 51 of 1977.

An official document has the following requirements:

• It is in the custody and under the control of a State official/head of a department by
virtue of his office
• It is in constant or regular use by a department and must always be available for use
or open to inspection or perusal.

Also make a point of referring to section 234 of the Criminal Procedure Act, 51 of 1977.

4. Discuss the relevant sections of the ECT Act:

Section 14 makes it clear that, in certain defined circumstances, it is not necessary to

produce the original. This section reads as follows:
“(1) Where a law requires information to be presented or retained in its original form,
that requirement is met by a data message if—
(a) the integrity of the information from the time when it was first generated in
its final form as a data message or otherwise has passed assessment in
terms of subsection (2); and

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(b) that information is capable of being displayed or produced to the person to

whom it is to be presented.
(2) For the purposes of subsection 1 (a), the integrity must be assessed—
(a) by considering whether the information has remained complete and
unaltered, except for the addition of any endorsement and any change which
arises in the normal course of communication, storage and display;
(b) in the light of the purpose for which the information was generated; and
(c) having regard to all other relevant circumstances.”

Assessment activity 19

X works for a company which regularly uses third parties to render services to the company.
The invoices sent by contractors are processed by X for payment by the finance officer. X
decides to generate fictitious invoices, payable to an account which is held by his brother. It is
subsequently discovered that X generated the fictitious invoices on his computer at work.

The finance officer who has made electronic payments to the account of X’s brother has
since passed away. Scanned copies of the fictitious invoices are available from the company’s
computer system. A computer printout from the finance officer’s computer, reflecting the fact
that he had processed the payment to the account of X’s brother, is also available.

Argue how the State can prove in a criminal trial against X that the finance officer had in fact
made the payments to the account of X’s brother. (25 marks)

Guidelines for acceptable answers – Question 19

1. As an investigator, how would you go about proving that X generated the invoices on his
computer?

• The hard-drive of X’s computer should be imaged by a computer expert.

• The expert will then search for the relevant documents in the data imaged by the
expert.

2. Is the data (the fictitious invoices) on X’s computer real or documentary evidence?

• It is real evidence.
• It is on the same footing as a murder weapon or something that has been used to
commit an offence with.

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3. How would you go about proving that payments were made by the now deceased
finance officer to the account of X’s brother? (How will you prove the admissibility of the
computer printout recovered from the finance officer’s computer?)

• Unlike real evidence, where there is human intervention and/or thoughts are
reproduced on something, it will be seen as documentary evidence.
• For that reason the computer printout will be of a documentary nature.
• The printout will be used to prove a fact stated therein, namely, that the payment was
made to the account of X’s brother.
• Despite the fact that it is a document and the author of this document is now
deceased, the printout can still be admissible evidence in the trial.

In the first place, consider whether the ECT Act can be of assistance here. Consider the
relevant definitions. (Is the printout a “data message” etc.?) Then discuss section 15.
Concentrate especially on section 15(4) - is the payment of invoices by the finance officer
something he did in the ordinary course of business? If you want to make use of this
subsection, remember that an officer must certify the printout to be correct.

In the second place, it is clear that there are hearsay elements included in the printout. The
Court can be requested to exercise its discretion to admit the hearsay evidence. The reliability
of the contents of the data message can be confirmed by independent evidence, namely,
evidence of payments into the account of X’s brother. Discuss all the elements in section
3(1)(c) of the General Law Amendment Act, 45 of 1988.

Lastly, consider using the provisions of section 221 of the Criminal Procedure Act, 51 of 1977,
as set out in the prescribed material.

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TOPIC 4.3
Oral evidence

The primary source of a forensic auditor’s information is often information obtained from
witnesses. If the witnesses’ testimony is accepted by a court of law, it is likely that the case
may be won by the party calling the specific witness.

However, it is a fact of the forensic auditor’s life that, since we are dealing with people, it is
not always easy to obtain a witness’s statement, which is credible, and then to convince a
witness to stand in a witness-box in order to be cross-examined by the other side.

Some legal issues which may have an impact

Section 192 of the Criminal Procedure Act (51 of 1977) reads as follows:

“Every witness not expressly excluded by this Act from giving evidence shall, subject to the
provisions of Section 206, be competent and compellable to give evidence in criminal
proceedings.”

Section 189 of the Criminal Procedure Act deals with the position of recalcitrant witnesses
who refuse to be sworn in or to make an affirmation as a witness or, having been sworn,
refuse to answer any question lawfully put to them. Such a refusal may be punished by that
same court and the witness may be sentenced to a lengthy term of imprisonment – unless the
Court finds that the witness has a just excuse for his or her refusal.

What is a “just excuse”? This question can only be answered by having regard to the
factual situation at hand.

A perusal of the case law makes it abundantly clear that it is very seldom that a witness will
be able to convince a court that he or she has a just excuse. It is, for instance, not a just
excuse that the witness’s life may be endangered should he testify.

The effect of the abovementioned provisions is therefore that, even if a person refuses to
cooperate (by, for instance, refusing to depose of an affidavit), he may still be subpoenaed
to appear in court and compelled to give evidence.

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It goes without saying that it may be a tactical risk to resort to such a course of action, but
the factual situation may very well indicate that the person should speak the truth if so
compelled to give evidence.

Experience shows that, especially in matters where a witness is afraid to give evidence,
such a refusal to testify usually indicates a lack of motive to falsely implicate the accused. It is
however advisable to have a record (usually an affidavit) of what the witness has told the
party planning to call the witness to testify, so that he may be discredited in court should he
deviate from that. Refer to the sections dealing with “previous inconsistent statements”
and “other instances of criminal liability for untruthful witnesses” later in this topic.

Section 204 of the Criminal Procedure Act deals with incriminating evidence by a witness
for the prosecution. This section reads as follows:
“(1) Whenever the prosecutor at criminal proceedings informs the Court that any
person called as a witness on behalf of the prosecution will be required by the
prosecution to answer questions which may incriminate such witness with regard to
an offence specified by the prosecutor—
(a) the court, if satisfied that such witness is otherwise a competent witness
for the prosecution, shall inform such witness—
(i) that he is obliged to give evidence at the proceedings in question;
(ii) that questions may be put to him which may incriminate him with
regard to the offence specified by the prosecutor;
(iii) that he will be obliged to answer any question put to him, whether by
the prosecution, the accused or the court, notwithstanding that the
answer may incriminate him with regard to the offence so specified or
with regard to any offence in respect of which a verdict of guilty would
be competent upon a charge relating to the offence so specified;
(iv) that if he answers frankly and honestly all questions put to him, he
shall be discharged from prosecution with regard to the offence so
specified and with regard to any offence in respect of which a verdict
of guilty would be competent upon a charge relating to the offence so
specified; and
(b) such witness shall thereupon give evidence and answer any question put to
him, whether by the prosecution, the accused or the court,
notwithstanding that the reply thereto may incriminate him with regard to
the offence so specified by the prosecutor or with regard to any offence in
respect of which a verdict of guilty would be competent upon a charge
relating to the offence so specified.
(2) If a witness referred to in subsection (1), in the opinion of the court, answers

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frankly and honestly all questions put to him—

(a) such witness shall, subject to the provisions of subsection (3), be
discharged prosecution for the offence so specified by the prosecutor and
for any offence in respect of which a verdict of guilty would be competent
upon a charge relating to the offence so specified; and
(b) the Court shall cause such discharge to be entered on the record of the
proceedings in question.
(3) The discharge referred to in subsection (2) shall be of no legal force or effect if it
is given at preparatory examination proceedings and the witness concerned does not
at any trial arising out of such preparatory examination, answer, in the opinion of
the court, frankly and honestly all questions put to him at such trial, whether by the
prosecution, the accused or the court.
(4) (a) Where a witness gives evidence under this section and is not discharged
from prosecution in respect of the offence in question, such evidence shall not
be admissible in evidence against him at any trial in respect of such offence
or any offence in respect of which a verdict of guilty is competent upon a
charge relating to such offence.
(b) The provisions of this subsection shall not apply with reference to a witness
who is prosecuted for perjury arising from the giving of the evidence in
question, or for a contravention of section 319 (3) of the Criminal Procedure
Act, 1955 (Act 56 of 1955)”.

This section is used regularly by law enforcement officers. The following issues need to be
kept in mind:

1. The investigator cannot promise any person that he (or she) will not be
prosecuted should he provide evidence that may incriminate him. Only the Court can
ultimately make a ruling on this.
2. The prosecutor must make it clear on which crimes the witness’s answers may be
self-incriminating.
3. The Court should then explain the relevant provisions of section 204 to the witness
before he or she testifies.
4. If the Court does not indemnify the witness at the conclusion of the proceedings (in
other words at the end of the case), the witness may be prosecuted for the relevant
crimes.

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Section 205 of the Criminal Procedure Act

The purpose of this section is to compel persons who may have information relating to a
crime, but who refuse to provide the police with the information, to divulge such information.

Section 205 provides that a judge, regional court magistrate or magistrate may:
• Upon the request of a Director of Public Prosecutions or a public prosecutor authorized
thereto in writing by the Director of Public Prosecutions,
• require the attendance before him or her (or any other judge, regional court magistrate
or magistrate),
• of any person who is likely to give material or relevant information as to any alleged
offence, whether or not it is known by whom the offence was committed,
• for examination by the Director of Public Prosecutions or the said public prosecutor.

If such person however furnishes that information to the satisfaction of the relevant Director of
Public Prosecutions or the public prosecutor concerned, prior to the date on which he or she
is required to appear before the judge, regional court magistrate or magistrate, he or she
shall be under no further obligation to appear before the said judge, regional court magistrate
or magistrate. Such a person has a right to legal representation, as held in Smit v Van Niekerk
NO 1976(4) SA 304 (EC).

The provisions of section 189 of the Criminal Procedure Act are also applicable to the
proceedings. If a person has a “just excuse” not to answer any of the questions, no further
steps to compel him to divulge the information would be ordered by the judge or magistrate.

On the other hand, if he refuses to cooperate whilst not having a “just excuse” he may be
sentenced to a term of imprisonment. A court will have regard to the facts of the matter in
order to ascertain whether or not the persons’ excuse is indeed a “just excuse”, as held in
Matisonn v Additional Magistrate, Cape Town 1980 (2) SA 619 (C).

In terms of section 205(4), such an uncooperative person shall not be sentenced to

imprisonment as contemplated in section 189 unless the judge, regional court magistrate or
magistrate concerned is also of the opinion that the furnishing of such information is
necessary for the administration of justice or the maintenance of law and order.

It is also important to note that the State also resorts to this section to obtain confidential
information, such as information held by a banker who owes a duty to the client not to
disclose the client’s private information.

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Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 416-420.

Previous inconsistent statements

Usually the defence team for an accused person would have copies of all the affidavits
contained in the prosecution’s police docket. In a civil matter these affidavits would, in all
probability, also have been discovered and copies should be in the opposing party’s
possession at the time of the trial. A favourite stratagem by the opposing party is then to point
out the inconsistencies and contradictions between what the witness has told other persons –
and more specifically the person who took down his affidavit – and his or her testimony in
court.

It is therefore imperative that witness statements be taken down in clear and simple language
and precisely. The exact words of the witness should be used as far as possible. If the
statement is taken down in a language other than the witness’s home language, consider
making use of a reliable interpreter. Avoid numerous statements by the same witness.
Instead, work on a draft statement rather than taking down numerous separate statements.
The final statement should be as complete as possible. This is particularly true in the case of
commercial matters, which are often complicated. It can take days to complete the statement.
Nonetheless, it is better that the forensic investigator takes his or her time and does a
thorough job. If essential facts are left out, the witness will be cross- examined on these
omissions in his statement, should he testify as to those facts.

If the contradictions are of a material nature and the witness is unable to explain the reason
for the contradictions it may detract, to a large extent, from his or her credibility.

If a witness deviates markedly from his affidavit, the prosecutor or person calling the witness
may himself discredit the witness; alternatively, he can apply to the Court to declare that
person a hostile witness. Refer to section 190 of the Criminal Procedure Act, 51 of 1977. For
the purposes of this module, it is not necessary to deal with the technical differences
between these two procedures.

The courts have laid down guidelines about how a person should be discredited (by the use
of his or her previous inconsistent statement) and what value a court would attach to such
an inconsistent statement. See, for instance, S v Tshabalala 1999 (1) SACR 163 (T) and
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S v Bruiners 1998 (2) SACR 432 (SECLD).

Other instances where untruthful witnesses may be criminally liable

1. Perjury

A witness commits an offence of perjury if he or she intends to mislead and knowingly makes
a false statement under oath or affirmation to a person authorised by law in the course of
judicial proceedings.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 213-218.

2. Section 9 of the Justices of the Peace and Commissioners of Oaths Act, 16

of 1963

Making a false statement in an affidavit is also a statutory offence in terms of this section. Any
person who, in an affidavit made before a person competent to administer an oath, has made
a false statement knowing it to be false, commits an offence.

3. Section 319(3) of the previous Criminal Procedure Act (56 of 1955)6

It is, however, sometimes easier to charge a person in terms of this section for making two
conflicting statements under oath. This section reads as follows:

“If a person has made any statement on oath whether orally or in writing, and he thereafter on
another oath makes another statement as aforesaid, which is in conflict with such first
mentioned statement, he shall be guilty of an offence and may, on a charge alleging that
he made the two conflicting statements, and upon proof of those two statements and without
proof as to which of the said statements was false, be convicted of such offence and punished
with the penalties prescribed by law for the crime of perjury, unless it is proved that when he
made each statement he believed it to be true.”

4. Section 67 of the South African Police Service Act, 68 of 1995

This section is also a useful section to bring to the attention of any person whose actions go
beyond that of being merely uncooperative. The said section provides that any person who -

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“(a) resists or hinders or obstructs a member of the police in the exercise of his or her
powers or the performance of his or her duties or functions or, in the exercise of his or her
powers or the performance of his or her duties or functions by a member wilfully interferes
with such member or his or her uniform or equipment or any part thereof; or

(b) in order to compel a member of the police to perform or to abstain from performing any act
in respect of the exercise of his or her powers or the performance of his or her duties or
functions, or on account of such member having done or abstained from doing such an act,
threatens or suggests the use of violence against, or restraint upon such member or any of
his or her relatives or dependants, or threatens or suggests any injury to the property of such
member or of any of his or her relatives or dependants, shall be guilty of an offence.”

It should also be kept in mind that a witness’s conduct can by itself constitute a
crime. If a witness helps any person to escape liability in respect of a crime committed by that
person, he himself is criminally liable as an accessory after the fact.

For example: a person who intentionally supplies the police with false information (e.g. a false
alibi) in order to help the suspect (in a theft case) to evade justice can be convicted as an
accessory after the fact to the crime of theft.

Defeating or obstructing the course of justice

Defeating or obstructing the course of justice involves any act (or failure to act) where a
person intentionally and unlawfully defeats or obstructs the administration of justice. If a
person is charged with defeating the ends of justice, the State would have to prove that the
administration of justice has indeed been defeated.

This might be difficult to prove and it is easier to prove that the administration of justice has
been obstructed or that an attempt has been made to do so.

The following instances are examples of how this crime can be committed:
• The inducement of witnesses to make false statements (S v Neethlingh 1965 (2) SA
165 (O)).
• The laying of false charges against a person (S v Mene 1988 (3) SA 641 (A)).
• Interference with law enforcement (S v Naidoo 1977 (3) SA 123 (N)).
• To give false information that is intended to bring an innocent person before a court.
• The tampering with evidence intended to be produced in a court.

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The course of justice is the due administration of justice by the courts in criminal or civil
proceedings. The crime cannot be committed in respect of administrative or quasi-judicial
proceedings (see R v Nhlapo 1959 (3) SA 142).

The course of justice is, however, not limited to proceedings in court, but includes the
processes that precede the Court proceedings.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 218-222.

Assessment activity 20

You are a police inspector investigating a matter where it is alleged in an affidavit that the
director of a listed company corruptly gave his secretary R50 000 in order to keep silent about
his involvement in a fraudulent scheme. You approach the secretary. She refuses point blank
to say anything and states that her life would be in danger if she says anything. Her evidence
is vital in order to secure a conviction against the director. What do you do? (12 marks)

Guidelines for acceptable answers – Question 20

You can point out to her that she herself has committed a crime if the allegation proves to be
true, and she can therefore also be charged. The specific legislation such as the provisions
of section 3 and 10 of the Prevention of Corruption Act 12 of 2004, as discussed in Study
Unit 3, Topic 3.4, should be considered as well. Since you want to make use of the provisions
of section 204 of Act 51 of 1977, she will have to know on which crimes she might be
able to receive indemnity.

If she is willing to cooperate and supply you with evidence against the director, the provisions
of section 204 should be explained to her and a statement can then be obtained from her.
Discuss the said provisions and keep in mind that you cannot promise the secretary that she
will definitely not be prosecuted should she provide self-incriminating evidence. Only the
Court can ultimately make a ruling in that regard. She should be informed that, if the Court
does not indemnify her at the conclusion of the proceedings, she may still be prosecuted for
the relevant crimes in the future.

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If she is still unwilling to cooperate, the provisions contained in section 205 of Act 51 of 1977
can be utilised in order to compel her to disclose her knowledge about the incident. Discuss
the salient features of section 205 of Act 51 of 1977, which provides that a judge, regional
court magistrate or magistrate may, upon the request of a Director of Public Prosecutions or
an authorised public prosecutor, require the attendance before him or her (or any other judge,
regional court magistrate or magistrate) of any person who is likely to give material or relevant
information as to any alleged offence – in this case contraventions of sections 3 or 10 of
Prevention of Corrupt Activities Act, 12 of 2004 – for examination by the Director of Public
Prosecutions or the said public prosecutor.

In this case, if the secretary furnishes the information to the satisfaction of the relevant
Director of Public Prosecutions or the public prosecutor concerned, prior to the date on
which she is required to appear before the judge, regional court magistrate or magistrate,
she shall be under no further obligation to appear before the said judge, regional court
magistrate or magistrate. Briefly explain that section 189 of the Criminal Procedure Act also
applies to the proceedings in terms of section 205. If the secretary has a “just excuse” not to
answer any of the questions no further steps to compel her to divulge the information would
be ordered by the judge or magistrate. On the other hand, if she refuses to cooperate whilst
not having a “just excuse”, she may be sentenced to a term of imprisonment.

Obviously, if she still refuses to cooperate and or supply you with false or untrue information,
she should then be charged with the specified legislation of the Prevention of Corrupt
Activities Act.

Assessment activity 21

On the abovementioned set of facts, assume that the secretary made a statement, but in
court refuses to testify and states that she has a duty to be loyal to the said director. In this
case, what can the prosecutor do? (5 marks)

Guidelines for acceptable answers – Question 21

The prosecutor can also apply to the Court to apply the provisions of section 189 of Act 51
of 1977. This section will apply if the secretary refuses to be sworn in or to make an
affirmation as a witness or, having been sworn, refuses to answer any question lawfully put
to her by the prosecutor. She should then have to state why she is unwilling to cooperate. If
the Court finds that she does not have a just excuse and she persists in her attempt not to
give evidence in court, she might even be sentenced to a term of imprisonment. The Court will
consider all the relevant facts at hand in order to consider whether or not she has a just

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excuse.

Assessment activity 22

On the abovementioned sets of facts, assume that the secretary then testifies that she
knows nothing about the incident and that the director never paid her the amount of R50 000.
This is in direct contrast with her affidavit filed in the docket. What criminal steps can be
taken against her? (10 marks)

Guidelines for acceptable answers – Question 22

The prosecutor can discredit her by pointing out the contradiction to the Court and her
evidence will then be without value. The prosecutor can also request the Court to declare
her a hostile witness and the prosecutor may then cross-examine her.

Discuss the following possible criminal charges which may be instituted against her:

She can be charged with perjury, but then it should be clear that her subsequent evidence
and not her affidavit, is false.

She might be charged with the statutory offences of contravening section 9 of the Justices of
the Peace and Commissioners of Oaths Act – a person who, in an affidavit made before a
person competent to administer an oath, has made a false statement knowing it to be false,
commits an offence. In this case, the State has an onerous burden to prove that what she said
in her affidavit was indeed false.

It will be easier for the prosecution if she is charged with contravening section 319(3) of the
(previous) Criminal Procedure Act, 56 of 1955, in that she made two conflicting statements
under oath. In terms of the said section 319(3), it would not be necessary to prove which of
the two statements was indeed false.

It can also be argued that she should be charged with being an accessory after the fact in that
she assisted the other culprit, the director, to escape liability.

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TOPIC 4.4
Admissions and confessions

Common law

At common law, any extra-judicial statement made by an accused will be admitted in

evidence only once it is proved beyond reasonable doubt to have been made freely and
voluntarily.

In terms of the common law, a statement is involuntary only if it was induced by a threat or
promise from a person in authority.

In terms of our current law any statement, whether or not it was induced by a person in
authority, must have been made freely and voluntarily in order for it to be admissible.

Admissions: Section 219A of the Criminal Procedure Act (51 of 1977)

This section basically codifies the common law position where the statement contains
admissions. There are various types of admissions, but we will concentrate on the informal
admission.

Requirements for admissibility:

• Must not be a confession.
• Must be done freely and voluntarily.

The test as to whether a statement is a confession or an admission will be dealt with below.

“Freely and voluntarily” includes the absence of threats and promises. This is a factual
question that the Court will decide. The test is subjective and no hard and fast rules can be
laid down.

In S v Yolelo, it was held that section 219A merely codifies the common law, but that the term
“voluntarily” should have the same meaning ascribed to it in section 217 (discussed above).
An issue that is sometimes missed by investigators is the issue of admission by conduct.
The evidence regarding the accused’s failure to speak up when another person incriminates
him, may give rise to an inescapable inference that the accused adopted the statement

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made by the other party as his own.

It all depends on the facts - if a person was a suspect whose rights had been explained and
he (or she) remained silent, his silence may not count against him.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 381-385.

Confessions – Section 217 of the Criminal Procedure Act (51 of 1977)

A confession is “an unequivocal acknowledgement of guilt, the equivalent to a plea of guilty

before a court of law”.

In order to determine whether a statement is a confession, it must be looked at in its

entirety. The test is an objective test, and all the elements should be contained in or inferred
from the statement, read with the surrounding circumstances.

In terms of section 217 of the Criminal Procedure Act, 51 of 1977 any confession should be:
• Freely and voluntarily made,
• By a person in his sound and sober senses, and
• Without having been unduly influenced thereto.

A person can be in his sound and sober senses even if he is under the influence of liquor.
Undue influence is widely interpreted and nor is it restricted to a threat or promise induced
by a person in authority.

It is important to note that any confession made to a peace officer, other than a magistrate or
a justice, shall not be admissible unless it is confirmed and reduced to writing in the
presence of a magistrate or justice. This is not required in the case of admissions made to
peace officers.

The presumption contained in section 217(b)(ii), that if a confession was made to a magistrate
or a justice, it is presumed that it was done freely and voluntarily, is no more part of our law. It
was found to be unconstitutional by the Constitutional Court. The State must prove these
elements beyond reasonable doubt.

It should also be pointed out that; even if a confession is technically admissible it could

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possibly be excluded on public policy considerations. With the advent of the Constitution this
is even more likely.

Constitutional requirements relating to admissions and confessions

An important requirement is that the admission or confession must comply with the
requirements laid down by the Constitution. From the case law it is clear that, in relation to
admissions or confessions, most prosecutions failed because the accused was not properly
appraised of all his rights before he made the decision to make an admission or a confession.

It is therefore imperative that a suspect is not only properly warned about all his rights at the
time of the arrest, but again when it becomes clear that he is willing to make any sort of
statement, whether exculpatory, admissions or a confession. In most instances warnings in
terms of the Judges Rules should suffice, but it is advisable to warn him of all his rights in
terms of the Constitution in a language that he understands.

The most important constitutional rights that are available to a suspect and of which such a
person should be informed of are as follows:
• The right to a legal representative.
• The right not to incriminate himself.
• The right to remain silent.
• If he wishes to state anything that can be recorded and that may be used against him
at his trial.

Admissions and confessions in the context of an employer-employee relationship

The following guidelines in this regard should be considered:

• The forensic auditor (who is not a law enforcement official) should introduce himself (or
herself) to the suspect.
• The forensic auditor should explain to the suspect that he has been mandated by the
employer to investigate the matter and that he has no interest in the outcome of the
investigation.
• The forensic auditor should further explain that he conducts interviews with persons
who can provide information in respect of the relevant allegations.
• He can then inform the suspect that he will compile a report upon finalisation of the
matter which he will then place before the employer.
• The forensic auditor should then explain to the suspect that, on the strength of the
information in his possession, he has reasonable grounds to believe that the suspect

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acted in an irregular fashion.

• The forensic auditor should then explain the suspect’s rights to him.
• The suspect should, however, then be informed that should he wish to exercise his
right to remain silent, this will be mentioned in the report and the employer may take
that fact into account when deciding on appropriate disciplinary steps against the
suspect.

It is highly recommended that all the rights referred to (regarding admissions and confessions
in the context of an employer-employee relationship), with the possible exception of the right
to a legal representative, are explained to a person suspected of dismissible wrongdoing and
who wishes to make a statement to a forensic investigator.

An employee does not have a right to legal representation during an interview that forms
part of an organisation’s internal investigation. Nor is he entitled to legal representation at
his disciplinary hearing. He is entitled to have a union representative present.

Depending on the circumstances, including the facts of the case and the position/expertise/
experience of the relevant investigator(s), it might be argued later on at a criminal trial that the
statements made by the accused are inadmissible, since his constitutional rights have not
been satisfactorily explained to him. It is therefore imperative that, if a criminal prosecution is
envisaged; all the suspect’s constitutional rights are properly explained to him.

Apart from the constitutional rights, it is advisable that the following are also recorded –
whether or not a criminal case is anticipated:
• Whether or not the suspect has been forced or threatened or influenced by any other
person to make the statement. If so, the details should be recorded.
• Was he promised anything by anyone to make a statement? If so, the details should
be recorded.
• Why is he making the statement?
• The interview should be conducted in the suspect’s preferred choice of language. If
this is not possible, a reliable interpreter should be used.

It is also recommended that the suspect write his statement in his own words and then sign
his statement. If that is not possible, his statement should be read back to him. He then needs
to sign the statement and /or affix his thumbprint on the document.

Another option is to open a criminal docket with the police. They can then take the suspect
to a magistrate and arrange for the confession to be confirmed in front of a magistrate.

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It is furthermore important to take cognisance of the organisation’s policy and the suspect’s
employment contract regarding his rights in this situation.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 385-394.

Assessment activity 23

You are a warrant officer in the SA Police Service (and therefore a peace officer, but not a
justice of the peace). You have been requested by T Ltd to investigate the theft of their
products from their warehouse. You are approached by a manager who informs you that
Mrs R decided to come forward and confess the fact that she stole all the items. T Ltd is
adamant that Mrs R should be criminally charged. Explain, by discussing all the relevant
principles, how you will go about ensuring that her evidence is admissible in her criminal
trial. (15 marks)

Guidelines for acceptable answers – Question 23

A confession made to you as a warrant officer will not be admissible evidence against Mrs R
in a subsequent criminal trial. The reason is that, in terms of Section 217 of the Criminal
Procedure Act, 51 of 1977, any confession (as opposed to a mere admission) made to a
peace officer other than a magistrate or a justice shall not be admissible unless it is confirmed
and reduced to writing in the presence of a magistrate or justice. Any police official
below the rank of a captain (such as a warrant officer) is not a justice of the peace.

It would be best to arrange for her confession to be recorded by a justice of the peace.

If you have a choice between a police official (who might be a justice of the peace) and a
magistrate, the better option would be to take her to a magistrate for her confession to be
taken down in writing, since magistrates are seen to be more objective and unattached to
the investigation of offences than police officials.

Discuss section 217 of Act 51 of 1977.

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In order to ensure that the confession would be admissible it must be clear that the confession
was made:
• Freely and voluntarily,
• By a person in his or her sound and sober senses, and
• Without having been unduly influenced thereto.

It is therefore important to record all the dealings that you had with Mrs R so that you can
show, to a trial court, that you (or any other person) did not improperly influence or threaten
her to make the confession to the magistrate or justice of the peace.

In practice, the police would complete a number of registers (such as cell registers) and
other documents (occurrence books held at the charge office) to prove the aforesaid.
Photographs of the suspect are sometimes taken to show that he or she has not been
assaulted, and/or the evidence of a medical practitioner to that effect is usually obtained.

There are therefore various ways and means of proving that the suspect was not improperly
influenced or assaulted in order to confess to the crime.

Take note of possible further developments - the Criminal Procedure Amendment Act, 9 of
2012. Also refer back to Study Unit 4.

Assessment activity 24

On the same set of facts as mentioned in above, assume that you are not a warrant officer,
but a private person, employed by T Ltd. How will you ensure that a confession made to
you will be admissible evidence against Mrs R at her criminal trial? (10 marks)

Guidelines for acceptable answers – Question 24

A confession made to a private person is admissible as evidence against Mrs R. The only
requirement is that the confession should be made freely and voluntarily (according to case
law this concept includes that Mrs R should also not be improperly influenced).

Be aware of possible constitutional considerations.

Especially if you have extensive prior law enforcement experience, it might be advisable to
warn Mrs R of her constitutional rights before recording her confession.

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TOPIC 4.5
Hearsay evidence

Study Unit 4, Topic 4.2, which deals with hearsay in documents, also applies to this topic.
The same principles also apply to oral evidence.

The position concerning hearsay evidence in a court of law is statutorily regulated in terms of
section 3 of the General Law Amendment Act, 45 of 1988.

As a general rule, hearsay evidence is inadmissible in a court of law.

The exclusion of hearsay evidence is based on the principles of fairness, because the other
party would not be able to exercise his right to contest evidence, and according to evidential
law, principles such as the “best evidence” rule hold sway (this rule requires that the best
available evidence be presented).

Hearsay evidence is, as a rule, admissible during disciplinary proceedings, but where there
is a factual dispute the relevant witness should be called.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 464-467.

Assessment activity 25

You are employed at a retail chain group, RET Ltd, as a security manager. Your company is
caught up in serious wage negotiations. Most of the employees are on strike.

Some of your employees who do come to work complain that they are being intimidated and
threatened by other members of the trade union. They know the names of the members and
they often see them at trade union meetings. When these members intimidated those
employees who are turning up for work, they also wore the t-shirts distributed to trade union
members by the trade union. The employees also noticed that these intimidating trade union
members are in regular contact with senior officials of the relevant trade union. These
employees fear for their lives and do not want to become further involved in the matter.

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They request that their revelations are kept confidential and do not want to submit affidavits in
this regard. RET Ltd wishes to approach the civil court in order to obtain an interdict against
the trade union and its members, but they are concerned that the affidavit that you will present
in court will not be sufficient, since your allegations are only based on hearsay evidence.

What advice will you give to RET Ltd? (20 marks)

Guidelines for acceptable answers – Question 25

The issue here is whether or not the Court will grant relief based on the hearsay allegations
contained in your affidavit.

Section 3(1) of the Act provides as follows:

“Subject to the provisions of any other law, hearsay evidence shall not be admitted as
evidence at criminal or civil proceedings, unless -

(c) the court, having regard to –

(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility
the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail
and
(vii) any other factor which should in the opinion of the Court be taken into
account, is of the opinion that such evidence should be admitted in the
interests of justice.”

Consider the facts and apply the relevant factors mentioned above to these facts:

i) The nature of the proceedings: it is an application procedure and we, the

applicants, will only have to establish a clear right and allegations that are prima
facie true and reliable. Also, it is a civil matter and not a criminal matter.

In criminal matters, the courts will be more hesitant to admit hearsay evidence. In this
case, this specific factor (a civil case) would therefore favour the inclusion of the
hearsay evidence.

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(ii) The nature of the evidence: the hearsay evidence concerns an important aspect of
the application.

(iii) The purpose for which the evidence is tendered and (iv) the probative value of the
evidence: the hearsay evidence is fundamental to RET Ltd’s case - the success of the
application depends entirely upon it. This factor would point towards exclusion of the
hearsay evidence.

(v) The probative value of the hearsay: if there are independent or undisputed facts which
are not hearsay, and which tend to show that what is contained in the hearsay
evidence may well be true, the Court will be more amenable to exercise its discretion
towards admitting the evidence. In the circumstances, it is unlikely that the employees
would concoct the allegation of intimidation.

(vi) The reason why the evidence concerned is not given by the persons upon whose
credibility the probative value of such evidence depends. The reason, namely fear of
retaliation, is a compelling one. It is clear that the employees are afraid that violent
reprisals might ensue against them.

(vii) Prejudice to the trade union/and its members which the admission of the hearsay
evidence might entail. The prejudice is not as great as it would otherwise seem.
Because it is only an interdict which is aimed at compelling the trade union to act in a
lawful manner, the prejudice (if any) would be minimal.

Any other factor which should, in the opinion of the court, be taken into account. The
situation is clearly extremely volatile and all the parties involved should be made aware that
their conduct should remain lawful and respectful to the rights of other non-striking
employees.

Weighing up all the relevant features referred to in section 3(1) (c) of the General Law
Amendment Act, it is arguable that the Court will exercise its discretion and rule that the
hearsay evidence should be admitted in the interests of justice.

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TOPIC 4.6
Opinion and expert evidence

As a general rule, any opinion, whether by a lay person or an expert, would not be admissible
if it is expressed on an issue that the Court can decide without receiving such opinion.

On the other hand, if the witness is in a better position than the Court to form an opinion,
such an opinion will be admissible in evidence.

Expert evidence

The opinion of an expert on an issue will therefore be admissible if the Court can receive
“appreciable help” from the expert on the issue.

The following is a brief exposition of the law relating to expert evidence. Some practical
issues are also addressed.

You are not required to read the case law referred to in this section for examination
purposes.

According to the law of evidence, what is an “expert”?

It is important for an expert to appreciate his or her function and role in a Court of law,
because that lays down the parameters of his or her evidence.

Evidence of opinion on an issue which the Court can decide on by itself is, in principle,
inadmissible as it is irrelevant. (See S v H 1981 (2) SA 586 (SWA).)

If a witness is in a better position than the Court to express an opinion, his or her evidence
in that regard would be admissible because it can assist the Court in determining the issue.

In Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A), it was held that: “The true and
practical test of the admissibility of the opinion of a skilled witness is whether or not the
Court can receive ‘appreciable help’ from that witness on the particular issue.”

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The basis to be laid in order for the witness to qualify as an expert in a court of law

Why is the witness an expert?

(a) The specialist knowledge, qualifications, experience and skills that the witness
possess should be placed on record.
(b) Training received, including training received on an ongoing basis.
(c) That he or she is an expert in the particular field or sphere on which he or she
testifies.

In other words, an expert must make it clear when a particular question or issue falls outside
his expertise.

The basis for the opinion itself should be disclosed to the court

Valid reasons must support the opinion.

A bold statement of opinion is not of any real assistance. See Coopers (SA)(Pty) Ltd v
Deutsche Gesellschaft fur Schadlings- bekampfung Mbh 1976(3) SA 352 (A) at 371, S v
Mokgiba 1999 (1) SACR 534 (O) and S v Mkhize 1998 (2) SACR 478 (W).

The expert’s role is also to provide independent assistance to the court.

In Re J (1991) FCR 193, the Court held that “an expert witness should state the facts or
assumption upon which his opinion is based. He should not omit to consider material facts
which could detract from his concluded opinion”.

The question, however, arises as to how far an expert should go to obtain all the material
facts:
• Should he strictly stick to the facts presented by the party instructing him or should he
call for further facts?
• Should he disclose, in his report, that he called for further facts and whether those
facts were then presented to him and, if not, the reasons indicated to him for such
failure?
• Should he refrain from expressing an opinion if he deems the failure to submit those
facts to be unreasonable?
• Should he simply state, in his report, that since the facts were not presented to him, he
assumes that these facts do not exist and therefore expresses only an opinion on the

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facts presented to him?

It is also not clear what “a fact” is. A fact can be the result of various inputs by different
persons and there can be a difference of opinion whether even something simple, such as the
sky is blue, is indeed a fact.

In the Re J matter referred to above, the Court held that if the expert considers that insufficient
data was available, then he must indicate that his opinion is only of a provisional nature.

The importance of objectivity

In S v Kotze 1994 (2) SACR 214 (O) at 225 the Court remarked that the expert should strive
to assist the court. This entails that he should be as objective as he could possibly be. Also
see Stock v Stock 1981(3) SA 1280 (A) at 1296 E.

An integral aspect of objectivity is independence. Independence in the following fields is

vital:
• Independence of production
o Although it is in order for the expert to consult with legal representatives to
some degree the “evidence presented to the Court should be and should be
seen to be, the independent product of the expert, uninfluenced as to the form
and content by the exigencies of litigation.”
o Legal representatives may get involved in the way expert reports are
presented, but may never be allowed to amend or distort those portions of the
report that may not be favourable to their case.

• Even if an expert is not independent from the party calling him, he may still be called as
a witness. The issue of independence that the courts are concerned with relates to the
way in which he has produced his expert evidence.

• Following on from this is the issue of conflict of interests. Here the following issues
should be considered (as far as forensic auditing is concerned):

o Can the same firm conduct the audit as well as the forensic accounting
investigation working for the same firm?
o In the US and UK the accountant must certify that he or his family does not
have any shares in the company investigated. Should the same measures not
be adopted in South Africa?
o The issue of contingency fees should be carefully considered, since this
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may compromise an expert’s objectivity.

Some practical considerations

The importance of proper consultations with the legal representative who will lead the
evidence; issues regarding the marking of exhibits; mode of address in court; the order of
proceedings etc. are all issues that an expert should be aware of.

Dealing with the opposing party’s contention that the expert’s opinion is based on
hearsay evidence

(a) Valuers of land may rely on conclusions of other valuators not called as witnesses
(see Southern Transvaal Buildings (Pty) Ltd v Johannesburg City Council 1979 (4) SA
949 (W) at 959). An expert may therefore also rely on opinions of other experts in
support of his or her own opinion: also see S v Kimimbi 1963 (3) SA 250 (C).

b) The expert can also rely on information contained in textbooks or other literature
and which was written by someone not called in the trial. The importance of
affirming (by reason of his own expertise in this particular field) the correctness of the
statements in the literature should also be carefully considered by the expert. See
Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E).

(c) An expert must always be aware of previous opinions that he may have expressed
in similar matters.

The three most common attacks on the evidence of an expert:

(a) In the first place, he (or she) may be cross-examined about his qualifications and
experience in order to show to the Court that, although the expert is suitably qualified
to express an opinion in a certain (or general) field, he is not qualified (or less so) to
express an opinion on the limited issue in dispute in the current matter.

(b) In the second place, one of the most frequent issues explored during cross-
examination is the factual basis for his opinion. The skilful cross- examiner may
elicit evidence that insufficient facts were brought to the expert’s attention in order
for him to express a credible opinion.

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Likewise, new facts may be presented by the cross-examiner which the expert was
unaware of at the time he compiled his report.

(c) Especially in view of the Constitution, Act 200 of 1996, the cross- examiner may also
elicit evidence that indicates that the facts to which the expert applied his mind were
unconstitutionally or unlawfully obtained.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 445-452.

Assessment activity 26

When will a court rely on the opinion of an expert and how should the basis be laid that a
witness is indeed an expert? (20 marks)

Guidelines for acceptable answers – Question 26

Discuss the theoretical framework provided in this study unit.

A. Start off by discussing the general rule that evidence of opinion on an issue which
the Court can decide on by itself is, in principle, inadmissible as it is irrelevant. An
exception to this general rule is that if a witness is in a better position than the Court
to express an opinion, his evidence in that regard would be admissible.

B. Then discuss the basis to be laid in order for a witness to qualify as an expert.
This basis consists of two “legs”:
• Why is the witness an expert? The Court should be informed, by way of
evidence, of:
o The specialist knowledge, qualifications, experience and skills that the
witness possesses.
o The training he or she has received, including training received on an
ongoing basis.
o That he is an expert on the particular field or sphere on which he
testifies.
• The basis for the opinion itself should be disclosed to the court:
o In the first place, valid reasons must support the opinion. A bold
statement of opinion is not of any real assistance to the court.

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o In the second place, the expert’s role is also to provide independent

assistance to the court.
o The expert witness should not, for instance, omit to consider
material facts which could detract from his final opinion.

C. You can then further discuss the importance of objectivity:

• The expert should be as objective as he or she can possibly be. In order to
be objective, the expert should be independent. You should discuss the
following:
o Independence of production.
o The question whether an expert who is not independent from the party
calling him or her could still be called as a witness.

D. You can comment on some of the more common attacks on the evidence of an
expert. These attacks may very well erode the basis of the expert opinion and should
therefore be dealt with appropriately:
• In the first place, the expert witness may be cross-examined about his/her
qualifications and experience in order to show to the Court that, although
the expert is suitably qualified to express an opinion in a certain (or general)
field, he or she is not qualified (or less so) to express an opinion on the
limited issue in dispute in the current matter.
• In the second place, a skilful cross-examiner may elicit evidence that
insufficient facts were brought to the expert’s attention for him or her to express
a credible opinion.
• The cross-examiner may also elicit evidence that indicates that the facts to
which the expert applied his or her mind were unconstitutionally or unlawfully
obtained or based on inadmissible hearsay and that, therefore, his or her
opinion is irrelevant or flawed.

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TOPIC 4.7
Privilege

A person has a right to withhold certain information from a court of law. This right to withhold
information from a court is called privilege. This right also extends to the investigations or
enquiries that precede a court matter. It is also not required that the matter should actually
end up in court in order for the privilege to be claimed.

It is also important to note that privilege has nothing to do with the issue of competence or
compellability of witnesses. A witness cannot refuse to testify on the basis that his (or her)
evidence would be privileged. He may however claim that privilege when his answer to a
question will result in the disclosure of privileged information. The privilege may be claimed
in court or even before the court proceedings are initiated; for example, when an investigator
asks a witness questions in the course of an investigation or when certain documents are to
be seized in the course of a search and seizure operation executed in terms of a court
order.

On the grounds of public policy, certain information is therefore excluded, despite the fact that
it may be very relevant to the issues in dispute.

An important aspect of privilege is that a person may at any time waive the privilege. Such a
waiver should, however, be informed and unequivocal.

There are two basic categories of privilege: private and state (public) privilege.

1. Private privilege

A forensic auditor may at some time or other be confronted with the following situations where
a private person may refuse to answer a question, based on privilege.

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1.1 Matrimonial privilege

The following sections of the Criminal Procedure Act, 51 of 1977, apply here:

Section 198 of Act 51 of 1977 - Privilege arising out of marital state

“(1) A husband shall not at criminal proceedings be compelled to disclose any

communication which his wife made to him during the marriage, and a wife shall not at
criminal proceedings be compelled to disclose any communication which her husband made
to her during the marriage.
(2) Subsection (1) shall also apply to a communication made during the subsistence of a
marriage or a putative marriage which has been dissolved or annulled by a competent court.”

Section 199 of Act 51 of 1977 - No witness compelled to answer question which the
witness's husband or wife may decline

“No person shall at criminal proceedings be compelled to answer any question or to give
any evidence, if the question or evidence is such that under the circumstances the husband
or wife of such person, if under examination as a witness may lawfully refuse and cannot be
compelled to answer or to give it.”

General comments: marital privilege

The purpose of this privilege is to protect the sanctity of communications between spouses
from being made public. It is in the public interest to protect the relationship between spouses.

Unlike some of the other privileges, it is not required that the communication should
have been intended as confidential.

The privilege only extends to communications. Other types of evidence are not protected.

A perusal of the said sections indicates that:

A spouse cannot be compelled to disclose what the other spouse disclosed to him or her. The
privilege is that of the spouse who heard or received the communication. If the spouse who
received the communication wishes to disclose it, the party who made the disclosure cannot
prevent it. This means that the person who made the disclosure to the other spouse cannot
claim the privilege.

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A spouse is not obliged to answer a question which his or her spouse could have refused to
answer. A witness can therefore refuse to answer a question about what he communicated to
the other spouse.

What is the position when the parties divorce? The position is that statements made
during the existence of the marriage are still protected. Refer to section 198 (2) of the Criminal
Procedure Act, 51 of 1977.

1.2 Legal/professional privilege

Section 201 of Act 51 of 1977 - Privilege of legal practitioner

“No legal practitioner qualified to practise in any court, whether within the Republic or
elsewhere, shall be competent, without the consent of the person concerned, to give evidence
at criminal proceedings against any person by whom he is professionally employed or
consulted as to any fact, matter or thing with regard to which such practitioner would not on
the thirtieth day of May, 1961, by reason of such employment or consultation, have been
competent to give evidence without such consent: Provided that such legal practitioner shall
be competent and compellable to give evidence as to any fact, matter or thing which relates to
or is connected with the commission of any offence with which the person by whom such
legal practitioner is professionally employed or consulted, is charged, if such fact, matter or
thing came to the knowledge of such legal practitioner before he was professionally
employed or consulted with reference to the defence of the person concerned.”

A communication between a legal adviser and client will only be privileged if the
following requirements are met:7

1. The legal practitioner must act in a professional capacity

The mere fact that a person is an advocate or an attorney does not give rise to the conclusion
that everything that such person might say, or that might be said to him or her, for the
purpose of obtaining his or her advice, will be privileged. For privilege to exist, the person
must be an adviser in a professional capacity. If a person therefore consults a friend who is an
attorney or advocate, the communications would not be privileged if it took place in pursuance
of a social or friendly relationship instead of a professional relation- ship. All the surrounding
facts such as the time and place of the consultation whether or not a file has been opened
for the client etc. will also play a role.

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2. The communication has to have been made in confidence

Thus, a client’s instructions to an attorney to act on his or her behalf and to obtain a
specific settlement are not privileged: this lacks the element of confidentiality precisely
because it was intended to be disclosed to the client’s opponent. Similarly, where an attorney
acts on behalf of both parties, this element may be absent.

3. It has to be made either for the purpose of advice or litigation

Thus, if a lawyer hears a confession when he or she consults with a possible witness in a
case, the communication will not be privileged at a subsequent trial of the witness because
the witness had not sought legal advice when he or she had made the confession. Again, a
written statement made at a time when the obtaining of legal advice was not contemplated will
not be privileged.

When a party gives evidence and, in so doing, testifies to facts that were put to that party’s
opponent’s witnesses, the party may be asked whether he or she gave his or her version of
the facts to his or her legal representatives. The party is not being asked what he or she
told the legal adviser or to disclose the nature of the communication to the legal adviser. In
this case, it is the state of the legal representative’s knowledge that is being tested. On the
other hand, the privilege extends not only to prevent the disclosure of the nature of what was
said to the legal representative in confidence, but also to prevent the disclosure of what was
not said.

If a document is not privileged, privilege cannot be created merely by handing it, in a

confidential manner, to the legal adviser: it will not be a communication for the purpose of
obtaining legal advice.

4. The privilege, which is a right of the client, has to be claimed

Privilege may be claimed by either by the client, the client’s agent, or the client’s legal
representative on his or her behalf. If the client wishes to make disclosure, neither his or her
representative nor the Court is entitled to frustrate the client: a judicial officer may inform the
client of his or her rights, but cannot prevent disclosure if the client wishes to disclose. As far
as the legal adviser is concerned, it is his or her duty to claim the privilege. However, when
the legal adviser does so (or when he or she waives the privilege), the legal adviser is acting
for the client and not in his or her own right.

Privilege may be waived expressly or by implication.

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5. The privilege does not apply if the client sought advice for the purpose of
committing a crime or fraud

This is valid even if the legal adviser is unaware of the client’s intention. In civil cases where
fraud is alleged, the privilege may be defeated only once there is at least prima facie evidence
that the client intended to obtain advice to facilitate the dishonest purpose.

In civil proceedings there is no requirement that litigation has to have been contemplated: it
suffices if legal advice was sought in confidence.

Communications between an attorney and his or her client which were aimed at committing
an offence are likewise not privileged.

A legal practitioner is also competent and compellable to give evidence as to any fact, matter
or thing which relates to, or is connected with, the commission of any offence with which his
or her client is charged if such a fact, matter or thing came to the practitioner’s knowledge
before he or she had been professionally employed or consulted by the client.

Independent witnesses

A statement by a potential independent witness is privileged if it is obtained for the purpose of

contemplated litigation.

It does not matter whether the statement was obtained by the client, the legal adviser or the
agent of either of them.

The client cannot, however, prevent an independent witness from disclosing what he or she
said, or what had been said to him or her, when he or she made the statement. The client
may be asked what he or she said or did, or what was shown to him or her (other than a
document which is itself privileged) at any consultation or interview with the client’s legal
adviser or representative.

Nor is it a requirement that the independent third party should have contemplated litigation in
order for the statement to be privileged.

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1.3 Statements made in the course of settlement negotiations

Communications made in the course of attempts to settle a legal dispute are protected from
disclosure. The purpose of the privilege is to enable parties to take part in the negotiations in
an open manner, without the possibility that their disclosures and admissions may at a later
stage be held against them should the negotiations fail. It often happens that letters written
and sent during the negotiation stage are marked “without prejudice”. These types of
communications may nevertheless be privileged, despite the absence of these words.

These communications are not privileged if the communication in itself constitutes

• An act of insolvency as envisaged by the Insolvency Act, 24 of 1936, or
• an offence.8

The plea-bargaining provisions contained in section 105A of the Criminal Procedure Act, 51 of
1977, deal extensively with the situation where an accused person enters into plea-bargaining
with the State. If the plea is not accepted, the statements made by the accused in the course
of the negotiations cannot be used against him or her at a subsequent trial.

1.4 The privilege against self-incrimination

This right is protected in terms of the Constitution:

• Section 35(1)
• Section 35 (3)(j)

This right is also protected in terms of sections 200, 203 and 204 of Act 51 of 1977.

Section 203 of Act 51 of 1977 - Witness excused from answering incriminating

questions

“No witness in criminal proceedings shall, except as provided by this Act or any other law,
be compelled to answer any question which he would not on the thirtieth day of May, 1961,
have been compelled to answer by reason that the answer may expose him to a criminal
charge.”

Section 200 of Act 51 of 1977 - Witness not excused from answer establishing civil
liability on his part

“A witness in criminal proceedings may not refuse to answer any question relevant to the
issue by reason only that the answer establishes or may establish a civil liability on his part.”
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In other words, a witness cannot be obliged to incriminate himself.

In criminal proceedings, this means that the witness may refuse to answer a question if the
answer may expose him to a criminal charge. In civil proceedings the privilege extends to the
imposition of penalties or forfeiture. It is however important to take note of legislation dealing
with this issue in certain specific matters.

When an accused enters the witness box to testify, he may claim the privilege in respect of
other matters for which he is not charged with. In respect of the charge for which he is in court
he cannot claim the privilege and can be questioned about this charge.

Section 204 of Act 51 of 1977

If a witness is not indemnified against further prosecutions, his answers given during the trial
may not be used against him in his later trial.

2. Public privilege

Public privilege refers to instances where information obtained by or in possession of the

State could not be disclosed because to do so would be prejudicial to the public interest.

With a view to facilitating the detection of crime and thus promoting the public interest, the
following principles have emerged:

Protecting an informer’s identity

An informer can be classified as any person who gives information to the authorities in
confidence and whose identity needs to be protected. This privilege finds application primarily
in the context of criminal investigations by the State. In the civil context the Protected
Disclosures Act.

The identity of informers needs to be protected for the following reasons:

• to protect the informer from possible interference or retaliation
• to ensure that the informer can be used in future
• to encourage the public to come forward with information about crimes

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Information contained in police dockets and consultations with state witnesses

It used to be the position that the information contained in the police docket was privileged
and could not be disclosed (the “blanket docket privilege”). The current legal position as set
out in the case of Shabalala v AG Transvaal & Another 1995 (2) SACR 761 (CC) is, however,
as follows:

In respect of disclosure of documents contained in the police docket:

1. “The blanket docket privilege was inconsistent with the Constitution to the extent to
which it protected from disclosure all the documents in a police docket, in all
circumstances, regardless as to whether or not such disclosure was justified for
the purposes of enabling the accused properly to exercise his rights to a fair trial.

2. The claim of the accused for access to documents in the police docket cannot be
defeated merely on the grounds that such contents are protected by a blanket
privilege.

3. Ordinarily an accused person should be entitled to have access to documents in

the police docket which are exculpatory (or which are prima facie likely to be
helpful to the defence) unless, in very rare cases, the State is able to justify the refusal
of such access on the grounds that it is not justified for the purposes of a fair trial.

4. Ordinarily the right to a fair trial would include access to the statements of witnesses
(whether or not the State intends to call such witnesses) and such of the contents of a
police docket as are relevant in order to enable an accused person properly to
exercise that right, but the prosecution may, in a particular case, be able to justify
the denial of such access on the grounds that it is not justified for the purposes of a
fair trial. This would depend on the circumstances of each case.

5. The State is entitled to resist a claim by the accused for access to any particular
document in the police docket on the grounds that such access is not justified for the
purposes of enabling the accused properly to exercise his or her right to a fair trial or
on the ground that it has reason to believe that there is a reasonable risk that
access to the relevant document would lead to the disclosure of the identity of an
informer or of State secrets or on the grounds that there was a reasonable risk that
such disclosure might lead to the intimidation of witnesses or otherwise prejudice the
proper ends of justice.

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6. Even where the State has satisfied the Court that the denial of access to the
relevant documents is justified on the grounds set out in paragraph 5 hereof, it
does not follow that access to such statements, either then or subsequently, must
necessarily be denied to the accused. The Court still retains a discretion. It should
balance the degree of risk involved in attracting the potential prejudice consequences
for the proper ends of justice referred to in paragraph 5 (if such access is
permitted) against the degree of the risk that a fair trial may not ensue for the accused
(if such access is denied). A ruling by the Court pursuant to this paragraph shall be an
interlocutory ruling subject to further amendment, review or recall in the light of
circumstances disclosed by the further course of the trial.”

In respect of consultation with state witnesses:

1. “Insofar as and to the extent that the rule of practice pertaining to the right of an
accused or his legal representative to consult with witnesses for the State prohibits
such consultation without the permission of the prosecuting authority, in all cases and
regardless of the circumstances, it is not consistent with the Constitution.

2. An accused person has a right to consult a State witness in circumstances where

his or her right to a fair trial would be impaired, if, on the special facts of a
particular case, the accused cannot properly obtain a fair trial without such
consultation.

3. The accused or his or her legal representative should in such circumstances

approach the Attorney-General (Director of Public Prosecutions) or an official
authorised by the Attorney-General for consent to hold such consultation. If such
consent is granted the Attorney-General or such official shall be entitled to be present
at such consultation and to record what transpires during the consultation. If the
consent of the Attorney-General is refused the accused shall be entitled to approach
the Court for such permission to consult the relevant witness.

4. The right referred to in paragraph 2 does not entitle an accused person to compel
such consultation with a State witness: (a) if such State witness declines to be so
consulted; or (b) if it is established on behalf of the State that it has reasonable
grounds to believe such consultation might lead to the intimidation of the witness or a
tampering with his or her evidence or that it might lead to the disclosure of State
secrets or the identity of informers or that it might otherwise prejudice the proper ends
of justice.

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5. Even in the circumstances referred to in paragraph 4(b), the Court may, in the
circumstances of a particular case, exercise a discretion to permit such consultation in
the interests of justice subject to suitable safeguards.”

The Promotion of Access to Information Act, 2 of 2000 (“PAIA”)

This Act seeks to give effect to the constitutional right of access to information held by the
State or by another person and that is required for the exercise of the protection of any rights.
The Act does not abolish the privileges which exist in terms of our common or statutory law.
Refer specifically to sections 40 and 67.

Section 7 of PAIA provides that the said Act does not apply to a record of a public body or a
private body if –
(a) that record is requested for the purpose of criminal or civil proceedings;
(b) so requested after the commencement of such criminal or civil proceedings, as the
case may be; and
(c) the production of or access to that record for the purpose referred to in para (a) is
provided for in any other law.

In the case of National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA), the
Court held that “other law” includes the rules relating to discovery, disclosure and privilege. If
access to information is requested for the purpose of criminal proceedings the right thereto
has to be sought elsewhere.

In other words, litigants are discouraged from using this Act as a mechanism for obtaining
information for the purposes of litigation.

3. Other privileges

Clients do have a limited privilege in that banks do not need to produce their books unless
ordered by a court of law to do so.

Strictly speaking, this might not be a privilege but more a corollary of the bank’s duty to
maintain confidentiality to protect the client’s right to privacy, based on its contract with the
client.

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Also take note of the exceptions to this duty:

• Legal compulsion (see provisions of Financial Intelligence Centre Act, 38 of 2002;
POCA, 121 of 1998, etc.)
• Where the client consents
• Where there is a duty to the public to disclose (e.g. danger to a person)
• Where the interests of the bank require disclosure (e.g. where the client sues the
bank in respect of the account)

Did you know?

There is no general doctor-client privilege in South Africa.

Accountants also do not enjoy a legal privilege in South Africa. Refer to Chantry Martin v
Martin 1953 2 All ER 691.

In S v Mshumpa 2008 (1) SACR 126 (E), the accused in a murder trial asked a
clergyman to convey the contents of their conversation to the accused’s family.

At the trial, the State wanted to lead the clergyman as to what the accused had told him. The
accused objected and contended that the communication was privileged.

The Court found that, even if there was some sort of privilege (the Court did not find that there
is such a privilege), the accused relinquished the confidentiality of the conversation by
requesting the clergyman to convey the contents of their conversation to his family. There
was therefore no reason why the clergyman should not divulge the contents of the
conversation to the court.

Certain professional communications may however be protected in terms of a person’s

constitutional right to privacy, as per section 14 (d) of the Constitution.

Study:

1. Joubert, Applied Law for Police Officials 2018 5th ed. p. 432-444.

Assessment activity 27

You are an investigator attached to a private forensic firm. In the course of your
investigations, you receive information that the wife of the main suspect in a case that you are

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currently investigating is in the process of instituting divorce proceedings against the suspect
and she might be willing to disclose his involvement in some of the irregular activities
that you are currently investigating against him.

How would you deal with this matter? (10 marks)

Guidelines for acceptable answers – Question 27

Discuss sections 198 and 199 of Act 51 of 1977:

Section 198

“(1) A husband shall not at criminal proceedings be compelled to disclose any communication
which his wife made to him during the marriage, and a wife shall not at criminal proceedings
be compelled to disclose any communication which her husband made to her during the
marriage.
…
(3) Subsection (1) shall also apply to a communication made during the subsistence of a
marriage or a putative marriage which has been dissolved or annulled by a competent court.”

Section 199 of Act 51 of 1977

“No person shall at criminal proceedings be compelled to answer any question or to give
any evidence, if the question or evidence is such that under the circumstances the husband or
wife of such person, if under examination as a witness may lawfully refuse and cannot be
compelled to answer or to give it.”

The wife of the suspect therefore cannot, at the criminal proceedings, be compelled to
disclose any communication which her husband made to her during the marriage.

Also keep in mind that this privilege only extends to communications. She cannot claim the
privilege in respect of her observations in regard to his illegal dealings, as long as it was not
communicated to her.

The wife therefore cannot be compelled to disclose what the other spouse disclosed to her.
But if she waives the privilege, then she can testify about his communications in regard to
his involvement in the irregular activities.

The husband, on the other hand, cannot claim the privilege and cannot prevent her from

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testifying about what he had told her. The privilege is that of the spouse who heard or
received the communication. This means that the person who made the disclosure to the
other spouse cannot claim the privilege.

Statements made during the existence of the marriage would still be protected, despite the
fact that the parties may be divorced by the time that the ex-wife testifies.

Assessment activity 28

You are investigating a case of theft by Mr Z. According to your information, Mr Z bought a

house with the proceeds of the theft. You request Mr Z’s file pertaining to the transaction
from the transferring attorney, Mr Y, who has appeared in a number of court cases on behalf
of Mr Z in the past. Mr Y refuses to hand the file over because he asserts that it is
“privileged”.

Discuss whether Mr Y has a legal basis for refusing to hand over the information. (20 marks)

Guidelines for acceptable answers – Question 28

Discuss the relevant principles covered in this study unit relating to legal-professional
privilege.

A. Begin by mentioning and discussing section 201 of Act 51 of 1977.

Section 201: “No legal practitioner qualified to practise in any court, whether within the
Republic or elsewhere, shall be competent, without the consent of the person concerned, to
give evidence at criminal proceedings against any person by whom he is professionally
employed or consulted as to any fact, matter or thing with regard to which such practitioner
would not on the thirtieth day of May, 1961, by reason of such employment or consultation,
have been competent to give evidence without such consent: Provided that such legal
practitioner shall be competent and compellable to give evidence as to any fact, matter or
thing which relates to or is connected with the commission of any offence with which the
person by whom such legal practitioner is professionally employed or consulted, is charged, if
such fact, matter or thing came to the knowledge of such legal practitioner before he was
professionally employed or consulted with reference to the defence of the person concerned.”

B. Next discuss the requirements that should be met in order for the conversation to
be privileged.

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1. The legal practitioner must act in a professional capacity.

For privilege to exist, the person must be an adviser in a professional capacity. If a person
therefore consults a friend who is an attorney or advocate the communications would not be
privileged if it took place in the pursuance of a social or friendly relationship instead of a
professional relationship. In this case, there is no indication that Mr Z did not consult Mr Y in a
non- professional capacity and this requirement would not be met.

2. The communication has to have been made in confidence.

It is arguable that Mr Y also acted for the seller of the property - where an attorney acts on
behalf of both parties, this element may be absent. There is no indication that the attorney
was consulted in confidence and that the intention between them was that the
communications should be kept confidential.

3. It has to be made either for the purpose of advice or litigation.

This is the main issue in this matter. Discuss, in particular, the requirement that Mr Z must
have approached Mr Y with the purpose of obtaining legal advice. It appears that Mr Y
only attended to a commercial transaction and that he was not approached for the purpose of
legal advice or litigation. In this case, therefore, the nature of the transaction is financial and
the privilege would not be compromised by providing you with the requested information. The
documents and information are therefore not privileged.

4. Also point out that the privilege, which is a right of the client, has to be
claimed.
The claim has to be made by either by Mr Z or his legal representative on his behalf. If Mr Z
wishes to make disclosure, Mr Y cannot prevent disclosure, since it is the client’s right to
claim the privilege. Also take note that privilege may be waived expressly or by
implication. Also refer to section 201 (if Mr Z consents to disclosure).

5. The privilege does not apply if the client sought advice for the purpose of
committing either a crime or fraud.
Communications between an attorney and his or her client which were aimed at committing an
offence are likewise not privileged. If there is, for instance, evidence to the effect that Mr Y
assisted Mr Z to launder the proceeds of illegal activities the information would in any event
not be privileged.

In conclusion, it can be successfully argued that the information that is requested is not
privileged and Mr Y should therefore provide you with the requested information/documents.

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Assessment activity 29

Discuss the procedure that should be followed when the legal representative of an accused
person wishes to interview the forensic accountant who compiled a report in which the
accused is implicated in the theft of trust funds.

He requests the consultation in order to prepare himself for the trial, which is set down in
two weeks’ time. The legal representative also requests copies of the working papers which
the forensic accountant used when compiling his report. The accused’s legal representative
has a copy of the final report, but neither the legal representative nor the State (in its docket)
are in possession of the working papers which are being held by the forensic accountant.

Discuss the legal position. (20 marks)

Guidelines for acceptable answers – Question 29

A. Discuss the principles set out in Shabalala v AG, Transvaal regarding consultation
with state witnesses by the accused’s defence.

1. As a general principle, an accused person has a right to consult with a state witness
in circumstances where his or her right to a fair trial would be impaired if, on the special
facts of a particular case, the accused cannot properly obtain a fair trial without such
consultation.

2. The first step in the process would usually be that the accused or his or her legal
representative would approach the office of the relevant Director of Public Prosecutions for
consent to hold such consultation. If such consent is granted, the relevant Director of Public
Prosecutions or an authorised official shall be entitled to be present at such consultation and
to record what transpires during the consultation. If the consent of the Director of Public
Prosecutions is refused, the accused shall be entitled to approach the Court for such
permission to consult the relevant witness.

3. The right referred to in paragraph 2 does not entitle an accused person to compel such
consultation with a state witness: (a) If such state witness declines to be so consulted; or (b)
If the State has reasonable grounds to believe such consultation might lead to the
intimidation of the witness or a tampering with his or her evidence, or that it might lead to the
disclosure of state secrets or the identity of informers or that it might otherwise prejudice the
proper ends of justice, then the accused cannot compel the consultation.

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4. Even in the circumstances referred to in paragraph 3(b), the Court may, in the
circumstances of a particular case, exercise a discretion to permit such consultation in the
interests of justice subject to suitable safeguards if it is established on behalf of the State that
it has reasonable grounds to believe such consultation might lead to the intimidation of the
witness or a tampering with his or her evidence or that it might lead to the disclosure of State
secrets or the identity of informers or that it might otherwise prejudice the proper ends of
justice.

B. Discuss the relevance of the Promotion of Access to Information Act, 2 of

2000. Information should be in a recorded form before the PAIA will apply. The
proposed consultation with the accountant will therefore not be covered and the
accused cannot rely on the PAIA.

But what about the working papers? These are in recorded form and in the possession or
control of a private body, namely, the accountant as an employee of the private body.

In this regard it is important to refer specifically to section 7 of the PAIA, which provides that
the said Act will not apply to a record of a public body or a private body if:

(a) that record is requested for the purpose of criminal or civil proceedings;
(b) so requested after the commencement of such criminal or civil proceedings, as
the case may be; and
(c) the production of or access to that record for the purpose referred to in para (a) is
provided for in any other law.

You can also refer to the case of National Director of Public Prosecutions v King, where
the Court held that “other law” in section 7(c) includes the rules relating to discovery,
disclosure and privilege. If access to information is requested for the purpose of criminal
proceedings, an applicant cannot therefore rely on PAIA. Disclosure of the content of the
docket is already dealt with by “other laws” as is set out in the discussion of the case of
Shabalala v AG, Transvaal.

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STUDY UNIT 5
RECOVERY OF ASSETS

Learning outcomes: At the end of this study unit, you will

• be able to examine and evaluate the various legal mechanisms in place for the
recovery of losses.
• be able to discuss and evaluate the legal mechanisms in place to prevent the suspect
from dissipating or hiding his assets in order to frustrate the complainant's efforts to
recover his losses.
• be able to differentiate between and explain the requirements that should be met in
order to facilitate successful recovery.
• be able to apply the relevant legal principles to any given set of facts.

Our aim in this study unit is to broadly explain the means available for a victim of
criminal conduct to recover his (or her) losses and/or to prevent the suspect from
dissipating or hiding his assets in order to frustrate the complainant's efforts to recover his
losses.

Most victims of crime have a real interest in recovering the losses sustained as a result
of another person's unlawful actions. Apart from that, policy considerations dictate that
criminals should not benefit from their crimes. If criminals cannot use the proceeds of
their crimes, crime itself may be decreased.

The available means to recover assets include:

• The civil route:

o sequestration/liquidation,
o civil judgment,
o anti-dissipation order.
• Section 37D of the Pension Funds Act, 24 of 1956
• Criminal Procedure Act, 51 of 1977
o Sections 34 and 35: Forfeiture of Instruments of Crime
o Section 297: Condition of Suspended Sentence
o Section 300: Compensation Order
• Other legislation (e.g. the Drugs and Drug Trafficking Act, 140 of 1992)
• Prevention of Organised Crime Act, 121 of 1998
• Consent by the suspect that his assets can be taken

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TOPIC 5.1
Recovery in terms of civil law remedies

An application can be made for the sequestration/liquidation of the person or entity’s

estate on the basis that it is insolvent and/or unable to pay its debts. This procedure can be
time-consuming and expensive. The complainant may end up having to share in the proceeds
of the insolvent estate with a number of other creditors, some which may have preferential
claims against the estate.

The complainant may very well end up with only a fraction of what is owed to him (i. e.
stolen from him), especially after other administrative costs have been deducted from the
proceeds of the estate.

The civil action procedure

An action may be instituted in a court of law to reclaim the stolen property from the suspect
and/or to claim damages caused by his unlawful conduct. The suspect will get notice of the
action and may very well abscond and/or dissipate the stolen assets. If judgment is obtained
against the suspect, it may very well be that there are no assets in his estate to satisfy the
judgment. The complainant may, therefore, end up with an empty order and no assets against
which the order may be executed.

A complainant may also apply for an anti-dissipation interdict. This is sometimes also
referred to as a “Mareva injunction”.

In Knox D’Arcy Ltd and others v Jamieson and Others 1995(2) SA 579 (W), the Court
however frowned upon the import of this remedy into the SA law, since SA law has an
equivalent remedy with its roots in our common civil law.

The other party is then ordered by the Court not to deal in any way with any of the assets
appearing on the order.

The applicant must prove that:

• He has at least a prima facie case/cause of action.
• The other party (respondent) has no bona fide defence to the action.
• Objectively considered there are good grounds for fearing that the respondent intends

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to make away with his assets in order to defeat the applicant’s claims.
• He, the applicant, will suffer severe prejudice should the respondent dispose of his
assets.

If the application is successful, the respondent or third parties are prevented from, or
interdicted to deal with the assets in question pending the result of an action.

The said application for an interdict is usually brought ex parte.

Given the technical requirements of this form of action, and the fact that it only brings interim
relief and that it is costly, this procedure may not always be the best available option for a
complainant who seeks to recover his stolen money.

Assessment activity 30

Xander Ltd believes that Yang (Pty) Ltd is unlawfully competing with him. Both are insurance
brokers and it is alleged that the directors of Yang, who were previously employed by Xander,
unlawfully copied the client lists of Xander and thereafter systematically contacted those
clients with a proposal that they can better their premiums. This occurred within a week after
the relevant directors resigned from Xander. This is in contravention of an agreement
between the parties to the effect that they will not contact Xander’s clients within a year
after their resignation.

Xander intends to institute action against Yang to prevent him from further unlawfully
competing with it and to claim damages in the amount for the losses suffered in this regard.

Xander received information that Yang is buying expensive cars and that the company is
transferring all of its assets to investment trusts in Taiwan. Xander believes that there will be
no executable assets at the time that a court may grant judgment in its favour against Yang.

Discuss whether an application for an anti-dissipation order will be successful.

Guidelines for acceptable answers – Question 30

As a general rule, any party has a right to deal with its property as it deems fit.

However, where a creditor has a right to be paid a debt owing to him, and there is a danger
that the debtor may dispose of his assets in order to escape execution of a judgment, the
Court can exercise its discretion and grant an anti-dissipation order/”Mareva injunction”
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against such a debtor. This order is of an interlocutory nature and its purpose is to prevent the
debtor from disposing of his assets in order to escape execution of a probable judgment
against him.

If the application is successful, the order would be aimed at preventing a respondent from
dealing freely with his assets; it would not give Xander any proprietary or quasi-proprietary
rights over the assets. The assets remain the (unencumbered) property of the respondent and
the interdict merely preserves the assets under consideration.

The Knox D’arcy case established that the requirements for an anti-dissipation interdict are
the same as those for an interim interdict. As such, the requirements that Xander should
satisfy are:

• The right which forms the subject matter of the main action (namely to interdict Yang
from unlawfully competing with Xander, coupled with an action for damages) is clear/
prima facie.
• There is a well-grounded apprehension of irreparable harm to the applicant if the
interim relief is not granted. Xander must show that if the anti-dissipation interdict is not
granted there will not be enough executable assets to satisfy its claim. This allegation
should be established by Xander through objective proof.
• The balance of convenience favours the granting of the interim relief to Xander.
• Xander has no other satisfactory remedy available.
• It must also be proven that the respondent was wasting or hiding away assets with
the intention of evading its liabilities towards the applicant. See, for instance, Carmel
Trading Co Ltd v Commissioner, South African Revenue Service and Others 2008 (2)
SA 433 (SCA). If Yang was making investments as a result of general business
practices and not in order to make it difficult for Xander to attach its assets, in the
event that Xander is successful in the main action, then the Court will probably not
grant the requested relief to Xander.

It must also be remembered that, since this is an ex parte application, without any notice at
this stage to Yang, all facts relevant to the matter must be disclosed to the Court – including
those facts which may be advantageous to Yang’s case.

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TOPIC 5.2
Section 37 D (b)(ii) of the Pension Funds Act, 24 of 1956

In terms of section 37D(b)(ii) of the Pension Funds Act 24 of 1956, an employer may recover
compensation in respect of any damage caused to the employer by reason of any theft,
dishonesty, fraud or misconduct by the member of the pension fund (i.e. the employee).

This means of recovery is possible if:

• the member of the pension fund has admitted liability to the employer in writing, or
• if a judgment in this regard has been obtained against the member in any court.

It is not enough, though, that the employee has only been convicted of the offence - a civil
judgment must have been obtained. A compensation order in terms of section 300 of the
Criminal Procedure Act, 51 of 1977, would suffice for these purposes, because it is in effect a
civil judgment.

What is meant by “misconduct”?

In the case of Moodley v Scottburgh/Umzinto LCT 2000(4) SA 524 (D), the Court had to
consider the meaning of “misconduct”. Moodley made some dubious investments on behalf of
the said LCT and the LCT suffered damages as a result of these investments.

There was no evidence to suggest that Moodley made the investments with fraudulent intent,
that he himself unlawfully benefited from the investments, or that his conduct was otherwise of
a criminal nature.

The Court interpreted the clause “misconduct” with the words “theft, fraud and dishonesty” in
section 37D (b)(ii) and concluded that all these words contain, in common, the element of
dishonesty. The court therefore concluded that the word “misconduct” should also be
construed as to mean dishonest conduct.

Moodley’s pension benefits could therefore not be seized from the relevant pension fund.

Take note that there are other Acts which also allow for the recovery of a person’s pension
benefits, but Act 24 of 1956 remains the most important piece of legislation as far as this issue
is concerned.

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Assessment activity 31

Jason Bourke worked for Currie Bank Ltd (from now on referred to as “his employer”) as a
credit controller, before resigning on 12 January 2011. As an employee of Currie Bank, Jason
belonged to the Currie Bank Pension Fund (from now on referred to as the “Pension Fund”).

His resignation followed after a dispute he had with his employer, resulting in losses suffered
resulting from a client of his employer, ABC (Pty) Ltd, becoming insolvent whilst owing
Currie Bank R4.2 million. Jason was responsible for managing ABC’s credit risk. Just before
Jason resigned he admitted, in writing, that he was responsible for the loss since he neglected
to constantly check on ABC’s credit position.

After his resignation, he requested payment from the Pension Fund, but was informed that his
employer requested the Pension Fund to withhold his pension benefits for 12 months, in terms
of the Pension Fund’s rules.

On 10 January 2012, Jason’s employer issued a High Court summons for the amount of
R4.2 million, allegedly being damages suffered by his employer, damages that were directly
attributable to Jason’s gross negligence.

Can Jason’s pension fund benefits be withheld and eventually be paid over by the said
pension fund to Currie Bank? (10 marks)

Guidelines for acceptable answers – Question 31

The first step should be to peruse Jason’s employment contract with Currie Bank. Is anything
mentioned about the forfeiture of pension fund benefits and, if so, in what circumstances? On
the assumption that nothing in that regard has been negotiated, the relevant pension fund
rules should also be perused. What do the rules state about the withholding of the pension
fund benefits? The rules should deal with issues such as the period that the pension fund may
withhold the payment of benefits to Jason, in what circumstances the fund can be withheld
and other relevant issues. The rules may also have specific clauses dealing with the payment
of the benefits to interested parties, such as Jason’s employer.

On the assumption that the employment contract and relevant pension fund rules do not have
specific provisions, will Currie Bank be entitled to claim that the pension fund makes good
their losses from the funds held on Jason’s behalf?

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The relevant elements contained in section 37D (b)(ii) should then be discussed.
• An employer (this element can be proved),
• may recover compensation in respect of any damage caused to the employer (this
element can also be proved - it is clear that Currie Bank suffered a R4.2 m loss),
• by reason of any theft, dishonesty, fraud or misconduct by the member of the pension
fund, i.e. Jason (this element is problematic – do his negligent actions constitute
“misconduct’?).
Discuss the matter of Moodley v Scottburgh/Umzinto LCT, where the Court held
that there must be some element of dishonesty present. Mere negligence, such
as in Jason’s case, will therefore probably not be covered.

Also discuss the fact that this means of recovery is only possible if:
• the member of the pension fund has admitted liability to the employer in writing (in this
case he admitted liability, but not any dishonesty and his admission will not take the
matter much further for Currie Bank), or
• if a judgment in this regard has been obtained against the member in any court. (in the
case study it is clear that Currie Bank has not yet obtained any civil judgment against
Jason).

It is therefore unlikely that the provisions of Section 37D will assist Currie Bank in the
recovery of their losses.

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TOPIC 5.3
Forfeiture in terms of the Criminal Procedure Act, 51 of 1977
(and other legislation)

We will now discuss the following, most important, sections in the Criminal Procedure Act
which have a bearing on the recovery of assets:

• Section 35 - Forfeiture of article to the State

• Section 297 - Condition of suspended sentence
• Section 300 - Compensation order

Forfeiture of Instruments of Crime

The relevant provisions read as follows:

Section 35 - Forfeiture of article to the State

(1) “A court which convicts an accused of any offence may, without notice to any
person, declare-
(a) any weapon, instrument or other article by means whereof the offence in
question was committed or which was used in the commission of such
offence; or
(b) if the conviction is in respect of an offence referred to in Part 1 of Schedule
2, any vehicle, container or other article which was used for the purpose of or
in connection with the commission of the offence in question or for the
conveyance or removal of the stolen property, and which was seized under
the provisions of this Act, forfeited to the State…”

Schedule 2, part 1, includes the following:

• “Any offence under any law relating to the illicit possession, conveyance or supply of
dependence-producing drugs or intoxicating liquor.
• Any offence under any law relating to the illicit dealing in or possession of precious
metals or precious stones.
• Breaking or entering any premises, whether under the common law or a statutory

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provision, with intent to commit an offence.

• Theft, whether under the common law or a statutory provision.”

The Act furthermore provides that such forfeiture shall not affect any right of other persons if it
is proved that the person who claims such right did not know that such weapon, instrument,
vehicle, container or other article was being used or would be used for the purpose of or in
connection with the commission of the offence in question or, as the case may be, for the
conveyance or removal of the stolen property in question, or that he could not prevent such
use, and that this person may lawfully possess such weapon, instrument, vehicle, container or
other article, as the case may be.

These provisions relate to the forfeiture of property to the State and are not of any real benefit
to the complainant who is interested in recovering his losses from the suspect.

Section 297 - Condition of Suspended Sentence

The relevant provisions read as follows:

“Where a court convicts a person of any offence, other than an offence in respect of which
any law prescribes a minimum punishment, the Court may in its discretion –
(a) postpone for a period not exceeding five years the passing of sentence and release
the person concerned-
(i) on one or more conditions, whether as to-
(aa) compensation;
(bb) the rendering to the person aggrieved of some specific benefit or
service in lieu of compensation for damage or pecuniary loss….”
(b) pass sentence but order the operation of the whole or any part thereof to be
suspended for a period not exceeding five years on any condition referred to in
paragraph (a) (i) which the Court may specify in the order; ….”

A convicted person may therefore be sentenced to the payment of a fine and/or

imprisonment, but the sentence may be suspended (wholly or in part) on condition that the
accused meets certain conditions. One of those conditions might be that the accused pay a
certain amount or certain periodic amounts over a specified period of time to the complainant
with a view to the complainant recovering his or her losses.

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Section 300 - Compensation Order

The relevant provisions read as follows:

“.....Court may award compensation where offence causes damage to or loss of property
(1) Where a person is convicted by a superior court, a regional court or a
magistrate's court of an offence which has caused damage to or loss of property
(including money) belonging to some other person, the Court in question may, upon
the application of the injured person or of the prosecutor acting on the instructions of
the injured person, forthwith award the injured person compensation for such damage
or loss: Provided that –
(a) a regional court or a magistrate's court shall not make any such award if the
compensation applied for exceeds the amount determined by the Minister
from time to time by notice in the Gazette in respect of the respective courts.

(2) For the purposes of determining the amount of the compensation or the liability of
the convicted person therefor, the Court may refer to the evidence and the
proceedings at the trial or hear further evidence either upon affidavit or orally.

(3) (a) An award made under this section-

(i) by a magistrate's court, shall have the effect of a civil judgment of that court;
(ii) by a regional court, shall have the effect of a civil judgment of the
magistrate's court of the district in which the relevant trial took place.
(b) Where a superior court makes an award under this section, the registrar
of the Court shall forward a certified copy of the award to the clerk of the
magistrate's court designated by the presiding judge or, if no such court is
designated, to the clerk of the magistrate's court in whose area of jurisdiction
the offence in question was committed, and thereupon such award shall have
the effect of a civil judgment of that magistrate's court.

(4) Where money of the person convicted is taken from him upon his arrest, the Court
may order that payment be made forthwith from such money in satisfaction or on
account of the award…”

Also take note of section 301 of Act 51 of 1977, which makes provision for compensation to
be provided to the innocent purchaser of property unlawfully obtained.

Since compensation is awarded upon application, complainants should be advised to include

in their statements a request that the prosecutor apply for such an order in the event of a

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conviction. Proof of quantum of actual damages suffered should be submitted.

Assessment activity 32

X uses a computer to manufacture fictitious identity documents, which he then uses to

obtain vehicles from commercial car rental companies. The vehicles are then loaded onto a
trailer and towed to the border, where they are sold to buyers from a neighbouring country.
The trailer itself, however, is owned by ABSA bank. X is arrested and the computer is found in
his possession. He pleads guilty to theft and is sentenced to 8 (eight) years imprisonment. The
prosecutor requests the Court to forfeit the computer to the State.

Can the presiding magistrate order the forfeiture of the computer? (5 marks)

Guidelines for acceptable answers – Question 32

Discuss the elements of section 35(1): a court may declare that:

(a) Since the computer is an “instrument or other article by means whereof the offence
in question was committed or which was used in the commission of such offence”; or
(b) if the conviction is in respect of an offence referred to in part 1 of schedule 2,
“any vehicle, container or other article which was used for the purpose of or in
connection with the commission of the offence in question or for the conveyance or
removal of the stolen property (the trailer in the case study), and which was seized
under the provisions of this Act, should be forfeited to the State…”.

Theft, whether under the common law or a statutory provision (of which X was convicted), is
included in part 1 of schedule 2. The computer, as an instrument in the commission of the
crime, may therefore be forfeited in terms of (a) above. The forfeiture of the trailer may take
place in terms of subsection (b). Will ABSA’s ownership prevent the forfeiture? It can be
assumed that ABSA did not know that the trailer would be used for unlawful purposes and the
Court will therefore not forfeit the trailer to the State.

Assessment activity 33

Mr B has a disagreement with his supervisor at the offices of RT Forensics Ltd. On his way
out, he kicks a glass door out of frustration. The door breaks and the damage amounts to R2
799. The next day he resigns from RT Forensics Ltd.

How can RT Forensics Ltd recover their damages? (5 marks)

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Guidelines for acceptable answers – Question 33

If Mr B is convicted of malicious injury to property, RT Forensics, or the prosecutor on their

behalf, may apply to the Court to award damages to them to the amount of R2 799.

If the Court makes the award in terms of section 300 of the Criminal Procedure Act, this has
the effect of a civil judgment.

Such an award will therefore have no value where Mr B has no assets against which the
judgment can be executed, and it is in any event unlikely that the Court will make such an
order if the accused is a man of straw (i.e. someone with no or minimal assets).

RT Forensics will have to provide acceptable proof that their losses indeed amounted to
R2 799. This may, for instance, take the form of a quotation from an objective dealer or
builder.

RT Forensics should ensure that the prosecutor is aware of the fact that they wish to
recover their damages and should request the prosecutor to bring the application. The Court
will not, from of its own accord, award damages to RT Forensics.

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TOPIC 5.4
The asset forfeiture provisions contained in the Prevention of
Organised Crime Act, 121 of 1998 (“POCA”)

Introduction

The forfeiture of a criminal’s assets is important. It is not simply a means for a victim of
crime to reclaim what is lawfully that person’s property. Instead, forfeiture also serves
another important function: namely, that offenders are made aware that crime does not pay,
thus removing an important incentive to commit a crime.

For an example of how the Supreme Court of Appeal gave effect to the remedial purpose of
the POCA legislation, see NDPP v Geyser 2008(2) SACR 103 (SCA).

Forfeiture in terms of POCA is one of the more effective ways to recover assets. The
assistance of the National Prosecuting Authority’s Asset Forfeiture Unit will have to be enlisted
for this purpose.

Forfeiture in terms of POCA can take any of the following forms:

• Criminal forfeiture (in terms of chapter 5 of POCA)
• Civil forfeiture (in terms of chapter 6 of POCA)

There is a difference in the requirements, steps and purpose underlying these two processes,
as discussed below. Make sure that you are thoroughly familiar with these, because your
knowledge of these requirements, steps and purpose may well be assessed in practice.

Initial “freezing” of the asset(s)

In practice, the High Court is usually first approached, ex parte (without notice to the
defendant, suspect or other parties), to freeze the assets of the suspect and/or other parties
who received the assets in their estate. If the criminal forfeiture route is followed (see
above), application is made to the High Court for a restraint order in terms of section 26 of
POCA. If the civil forfeiture route is followed application is made, also to the High Court, for a
preservation of property order in terms of section 38 (1) of POCA. Only High Courts can
grant a restraint or preservation of property order.

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After the provisional restraint or preservation of property order has been granted, notice is
given to the persons affected by the order and on the return day this person(s) may request
the Court to reconsider the provisional order. The Court may then vary or rescind the order in
terms of sections 26 and 47 of POCA.

If the Court does not rescind its provisional order, the State/National Director of Public
Prosecutions (NDPP) will apply for the forfeiture of the property under restraint. There are
two processes available to finally forfeit these frozen assets.

The suspect and/or other parties will have an opportunity to address the Court as to why the
assets should not be forfeited.

1. Criminal forfeiture (chapter 5 of POCA)

If the criminal route was followed, a high or lower court may then grant a confiscation order
in terms of section 18(1) of POCA.

Requirements:
• The action is instituted “in personam”. This means that the action is instituted
against the person of the suspect.
• The suspect must have been convicted in a criminal court.
• The amount in which the suspect has benefited is forfeited. In other words, if the
suspect stole R300 000 then assets to the amount of R300 000 are forfeited –
irrespective of whether these assets are the instrumentalities or the proceeds of the
crime or in another way tainted by the crime.

A confiscation order is a civil judgment for the payment of an amount of money to the State.
After conviction, but before sentence, the Court on application by the prosecutor enquires into
any benefit which the accused (now referred to as “defendant”) may have derived from that
offence or any other offence of which he may have been convicted at the same trial or any
criminal activity which the Court finds to be sufficiently related to these offences.

Amounts that may be realised

Section 20 of POCA deals with the amounts that might be realised as follows:
• It is the sum of all the values of:
• all realisable property held by the defendant,
• all the affected gifts made by the defendant (it is important to take note of the

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definition of “affected gifts” in section 12 of POCA as well as the presumption created in

terms of section 16 of the Act),
• less the sum of all obligations of the defendant having priority. Secured claims
such as that of a preferred creditor or a bondholder will have priority.

Case law

The benefit – requirement

In the matter of NDPP v Ncongwane 2005(2) SACR 277 (N), the defendant was part of a
group of approximately 20 (twenty) robbers which had robbed a cash-in-transit vehicle in KZN.
The defendant was apprehended shortly after the incident with about 5 (five) other robbers
whilst fleeing the scene in a motor vehicle.

Approximately R1.2 million was taken, but none of the money was recovered from the
defendant or his co-robbers.

Application was made for a confiscation order and the Court had to decide whether the
defendants had derived any benefit from the crime.

The Court held that there is no evidence that the defendants had actually received any
benefit. It is possible that the robbers who had not been apprehended may have taken the ill-
gotten gains and that the defendants therefore could not be seen as benefiting from the crime.

In the matter of NDPP v Mtungwa 2006(1) SACR 122 (N), the respondent was in the process
of securing employment using a false matriculation certificate. In this case, his R1.8 million
earnings, earned over a 11-year period, was the property that the NDPP wanted to be
forfeited.

The court, however, held that the earnings did not constitute benefits derived as result of his
unlawful activities.

No evidence was led that he would not have been employed if he had not misrepresented his
qualification.

The Court furthermore held that this was not the type of offence that the POCA Act was
designed for quantum (nor was the amount that should be forfeited proved by the NDPP).

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Other

In NDPP v Rautenbach 2005 (1) SACR 530 (SCA), the principle was affirmed that assets
acquired before the offence was committed may be forfeited if the criminal forfeiture route is
embarked on.

In Procopos v NDPP 2009(1) All SA 255 (SCA), the Appellant’s daughter was convicted of
fraud.

The victims paid R9.7m into her mother’s bank account (i.e. the Appellant’s bank account).

In an application for a restraint order, the State (NDPP) had to show that she received an
affected gift.

The mother contended that she was not aware that her daughter was involved in criminal
activities and her daughter only requested her to make use of her bank account. She
contended that her bank account was a mere conduit for the funds and was not a “gift” to her.

The Court referred the matter back for oral evidence, since it could not be established on the
papers that the funds that she so received was a gift and that the bank account was not a
mere conduit.

Presumptions

The State is also greatly assisted by the presumptions contained in section 22 of POCA
where certain circumstances give rise to prima facie proof that an interest/ property held by
the defendant is a benefit derived from the said offences or related criminal activities. The
burden is then on the defendant to produce evidence to rebut that prima facie proof.

Two of these presumptions are discussed in detail in NDPP v Kyriacou 2003 (2) SACR 524
(SCA), and the presumption referred to in section 22 (2) is discussed in NDPP v Mcasa
2000(1) SACR 263 (Tk).

2. Civil forfeiture (chapter 6 of POCA)

If the civil forfeiture route has been followed, a high court may then grant the forfeiture order in
terms of section 50 of POCA.

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Requirements

Before property can be forfeited, POCA requires proof, on a balance of probabilities, that the
property is an instrumentality of the crime or the proceeds of unlawful activities or property
associated with terrorist-related activities.

In contrast with criminal forfeiture:

• The action is instituted “in rem” – this means that the action is instituted against the
asset(s).
• It is not necessary for a conviction before the action can be instituted.
• Only “instrumentalities” and/or “proceeds of the crime” can be forfeited. It must be
shown that the assets are tainted in one way or another by the crime.
• The crime committed must be a Schedule 1 offence.

Schedule 1 to POCA provides a lengthy list of offences as follows:

# Offence
1 Murder
2 Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007, respectively
3 Kidnapping
4 Arson
5 Public violence
6 Robbery
7 Assault with intent to do grievous bodily harm
8 Sexual assault, compelled sexual assault, or compelled self-sexual assault as
contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007, respectively
9 Any offence contemplated in part 2 of chapter 3 or the whole of chapter 4 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007
10 Any offence under any legislation dealing with gambling, gaming or lotteries
11 Contravention of section 20 (1) of the Sexual Offences Act, 1957 (Act 23 of 1957)

12 Any offence contemplated in part 1 to 4, or section 17, 18, 20 or 21 (in so far as it relates
to the aforementioned offences) of chapter 2 of the Prevention and Combating of Corrupt
Activities Act, 2004
13 Extortion
14 Child stealing

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# Offence
15 Breaking or entering any premises whether under the common law or a statutory
provision, with intent to commit an offence
16 Malicious injury to property
17 Theft, whether under the common law or a statutory provision
18 Any offence under section 36 or 37 of the General Law Amendment Act, 1955 (Act 62 of
1955)
19 Fraud
20 Forgery or uttering a forged document knowing it to have been forged
21 Offences relating to the coinage
22 Any offence referred to in section 13 of the Drugs and Drug Trafficking Act, 140 of 1992

23 Any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or

armament and the unlawful possession of such firearms, explosives or armament

24 Any offence in contravention of section 36 of the Arms and Ammunition Act, 75 of 1969

25 Dealing in, being in possession of or conveying endangered, scarce and protected game
or plants or parts or remains thereof in contravention of a statute or provincial ordinance

26 Any offence relating to exchange control

27 Any offence under any law relating to the illicit dealing in or possession of precious metals
or precious stones
28 Any offence contemplated in sections 1 (1) and 1A (1) of the Intimidation Act, 72 of 1982

29 Defeating or obstructing the course of justice

30 Perjury
31 Subornation of perjury
32 Any offence referred to in chapter 3 or 4 of POCA
32 Any specified offence as defined in the Protection of Constitutional Democracy against
A Terrorist and Related Activities Act, 2004
33 Any offence the punishment wherefore may be a period of imprisonment exceeding one
year without the option of a fine
34 Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule

In order to remove the incentive for crime, chapter 6 of POCA focuses on property that has
been used to commit an offence and the proceeds of crime. In terms of section 50, the High
Court shall make a forfeiture order if it finds on a balance of probabilities that the property
concerned is:

(a) an instrumentality of a Schedule 1 offence,

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(b) the proceeds of unlawful activities, or

(c) property associated with terrorist-related activities.

(a) “Instrumentality of an offence”

This is defined in section 1 of POCA as property which is “concerned in the commission or

suspected commission of an offence ...whether committed within the Republic or
elsewhere”.

“Concerned in” indicates that there must be a reasonable direct link between the crime and
the property. The property must be functional and instrumental to the commission of the
crime and not be merely incidental to its commission, as indicated in NDPP v RO Cooke
Properties etc. 2004 (2) SACR 208 (SCA), paragraphs 21; 31.

This principle is well illustrated in the following two matters (Mohunram and Geyser cases),
where the forfeiture of immovable property was considered.

In Mohunram v NDPP 2007(2) SACR 145 (CC), the respondent operated an illegal gambling
house on the property. He was convicted under the KZN Gambling Act and paid penalties.

The Constitutional Court held that, since the legislature has created remedies in the said Act
which does not encompass forfeiture, it would be loath to apply the provisions of POCA in this
regard.

The Court held that the property was indeed an “instrumentality”, but then went on to consider
whether forfeiture was proportionate to the crime. Proportionality is not a requirement in
POCA, but is required on equity grounds by courts applying the provisions of the Act.

The Court further held that, since the purpose of POCA is primarily deterrence of serious and
organised crime, the seriousness of the offence should be considered in order to evaluate to
what extent the effect on the individual may be disproportionate to the purpose of POCA. In
other words, the closer the criminal activities are to the core focus of the Act
(serious/organised crime), the more readily the courts would grant a forfeiture order. Because
the effect on the individual was disproportionate to the purpose of POCA, Mohunram’s
property was returned to him.

NDPP v Geyser 2008(2) SACR 103 (SCA): Geyser bought a residential property and
conducted an illegal prostitution operation on the top floor of his property. A bar, strip shows
and management operations (legal) were conducted on the ground floor.

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The High Court held that only the top floor was an instrumentality of the crime and ordered
only the top floor and its contents to be forfeited. The NDPP appealed the decision.

The Supreme Court of Appeal held that the ground floor was an essential component of the
brothel and that the whole building facilitated the commission of the crime; the whole property
was therefore forfeited to the State.

The Court distinguished the Mohunram matter in respect of the following:

• The intention with which the property was acquired. In Geyser’s case it was acquired
solely for illegal purposes. There was no independent lawful purpose. In Mohunram it
was acquired for both legal and illegal purposes.
• Brothels cannot be licensed, whereas gambling venues can.
• Whether the defendant had already been punished. In Geyser’s case, the defendant
maintained his innocence and paid no penalties. In Mohunram’s case, fines had
already been paid.

The question also arises as to whether a bribe handed over to someone could be forfeited. In
NDPP: In re Appeal 2006 (1) All SA 304 (N) two persons were arrested for possession of a
stolen vehicle. They attempted to bribe the police officer by offering him R15 000 and the
vehicle.

They immediately paid him R4 750 and arrangements were made as to the rest of the money.
In appeal, the Court held that the money was employed for the purpose of bribing the police
not to do their duty and was therefore an instrumentality of the offence of corruption. The
amount of R4 750 was therefore forfeited.

(b) “Proceeds of unlawful activities”

“Proceeds of unlawful activities” is defined in section 1 of the Act as:

“Any property or service, advantage, benefit or reward which was derived, received or
retained directly or indirectly, in the RSA or elsewhere, at any time before or after the
commencement of this Act, in connection with or as a result of any unlawful activity carried on
by any person, and includes any property representing property so derived.”

“Unlawful activities” is also defined in section 1 of the Act.

The applicant (NDPP) therefore has to establish that the property was derived, received or
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retained, directly or indirectly, in connection with or as a result of any unlawful activity by the
respondent.

Let us see how the courts applied this provision:

NDPP v Seevnaryan 2004(2)SACR 208 (SCA):

In order to hide his income from the SA Revenue Service, Mr Seevnaryan made a number of
investments with Sanlam, but used fictitious or false names when doing so. He was convicted
of fraud.

The NDPP applied for the funds and interest in these false accounts to be forfeited. The
application in regard to the forfeiture of his property was heard by the Cape High Court
and the appeal thereafter by the SCA.

The following points of the SCA’s judgment are of importance:

• The Cape High Court raised the question as to whether the POCA legislation was not
directed only at organised crime. Here the charge was evasion of tax by a single
individual. The SCA, however, made it clear that the Act also applies to individual
wrongdoing.
• In civil recovery the focus is on the property, not the intent of the wrongdoer.
• In order for the property to be an “instrumentality” it should, in fact, be instrumental
and not merely incidental to the commission of the offence. However, it is not
necessary that the property be the means.
• In this case, Mr Seevnaryan committed fraud by using false names, not by making
investments.
• The investments were therefore not an instrumentality of the crime.

The Court then went on to consider whether the investments could be the proceeds of
illegal activities, but held they were not for the following reasons:
• There was no allegation that the investments originated in unlawful activities. In other
words, he used legitimately obtained money to make the (fraudulent) investments. The
investments were therefore not the proceeds of crime, but were merely incidental in
committing the fraud.
• Nor did the interest gained on the investments accrue as result of the false
information that he provided; instead, the interest was a result of the investments
themselves.

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Seevnaryan’s investments could therefore not be restrained in terms of section 26 of POCA.

Assessment activity 34

A, B and C decide to present a fraudulently generated cheque, purportedly issued by the

Department of Transport, at a bank. The cheque is to the value of R960 000.

A and B enter the bank. A presents the cheque. The bank pays out the amount of the
cheque in cash and hands it over to A. A and B leave the bank.

A, B and C are arrested three weeks after the incident. They all plead guilty to the fraud.

It turns out that A, B and C are all wealthy businessmen who had acquired all their wealth
some time ago, before they decided to perpetrate the abovementioned fraud.

The investigators failed to trace the pay-out of R960 000 (or any part thereof) or any
property or assets that could be linked with the proceeds of the crime. You are appointed by
the complainant, the Department of Transport, to advise them as to how they should
attempt to recover their losses.

Restrict your advice to the available procedures in terms of the Prevention of Organised
Crime Act, 121 of 1998.

Who should you target to get the money back, and how should they go about getting it
back? Explain your advice to them. (25 marks)

Guidelines for acceptable answers – Question 34

Discuss whether the civil forfeiture provisions of POCA (chapter 6) will apply in this scenario.

Briefly discuss section 50 of POCA – is the property concerned:

(a) an instrumentality of a Schedule 1 offence?
(b) the proceeds of unlawful activities? or
(c) property associated with terrorist-related activities?

Since the answer to all three questions is “no” (because no such property could be traced),
the civil forfeiture option will not yield the required results.

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Then focus on the criminal forfeiture provisions of POCA (chapter 5). What are the
requirements and procedures?

Requirements:
• Unlike civil forfeiture, the action is instituted against the person of the suspect (in this
case, A, B and C).
• The suspect must have been convicted in a criminal court before a final order can be
made. At this stage the matter is under investigation and nobody has been convicted.
That is where the provisions of section 26 of POCA can be used - the High Court can
be approached, ex parte (without notice to the suspect or other involved parties) to
freeze the assets of A, B and C. This provisional freezing order is called a Restraint
Order. After the provisional restraint or preservation of property order has been
granted, notice is given to A, B and C and on the return, they may request the Court to
reconsider the provisional order. The Court may then vary or rescind the order.
• The amount in which the suspect has benefited is forfeited. In other words, if A, B and
C benefited from the fraud to the tune of R960 000, then assets to the amount of
R960 000 are forfeited. It is important to note that this amount is forfeited irrespective
of whether these assets are the instrumentalities or the proceeds of the crime or in
another way tainted by the crime. It is furthermore not necessary that A, B and C
should forfeit their assets in direct relation to their complicity in the crime. Nor is it
necessary that, on the assumption that they shared the R960 000 equally, that each
should forfeit assets to the value of one-third of the R960 000 (R320 000). It is possible
to forfeit all of A’s assets to the value of R960 000, or some of A and B’s assets to that
value and, for instance, none of C’s assets.

The question here is, however, whether they “benefited” – in this regard, discuss the
matter of NDPP v Ncongwane, where the Court held that where there is no evidence
that the defendants had actually received any benefit. Here, it cannot be said that they
“benefited” from the crime.

Applying this to the facts, is it possible that A and B did not hand the proceeds over to
C? If the limiting interpretation in the Ncongwane case is indeed correct, then C may
not have received anything (benefited), but A and B, who left with the proceeds of the
crime did receive it and thus “benefited” from the fraud. It will thus be a safer option to
concentrate on A and B’s assets when making application for criminal forfeiture.

You should also briefly discuss the process. After conviction, but before sentence, the Court
on application by the prosecutor enquires into any benefits which A, B and C may have
derived from that offence or any other offence of which they may have been convicted at the
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same trial or any criminal activity which the Court finds to be sufficiently related to these
offences.

A, B and and/or other parties will then have an opportunity to address the Court as to why the
assets should not be forfeited. If the criminal route was followed, a high or lower court may
then grant a confiscation order. The assets of A, B and C are then realised and
forfeited.

Also discuss section 20 of POCA, which deals with the amounts that might be realised: This is
the sum of all the values of:
• all realisable property held by the defendant; and
• all the affected gifts made by the defendant (if A, B or C, for instance, transferred their
assets in order to prevent these from being forfeited, these gifts may also be realised).

Less the sum of all obligations of the defendant having priority. Secured claims such as that of
a bondholder will have priority. If A’s house is forfeited, but he still owes the bank on his bond
account, the amount of the bond will be offset against the realisable amount. The advantage in
using this process is that it is a cost-effective way for the complainant to get his money back.

You are not restricted to assets that were the instrumentality or the proceeds of the said
crime of fraud.

There are also presumptions that facilitate the process. In terms of section 22 of POCA,
certain circumstances give rise to prima facie proof that property/interests held by the
defendant is a benefit derived from the said offences or related criminal activities. The
burden is then on the defendant to produce evidence to rebut that prima facie proof.

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Endnotes
1
S v Cooper 1976 (2) SA 875 (T); S v Alexander 1965 (2) SA 818 (K); S v Zwane 1989 (3) SA 253 (W).
2
S v Campbell above.
3
See Section 11 of Act 88 of 1984.
4
Government Notice R351 in Government Gazette 34239, 26 April 2011.
5
The scope of which falls outside our current discussion - see Regulation 29.
6
This section has not been repealed and is still effective.
7
The following is quoted, in some instances verbatim, from Joubert et al LAWSA.
8
This will include contraventions of the Riotous Assemblies Act – see Study Unit 2, Topic 2.3.

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