longer v the state

8/8/2019 Longer v The State

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CASE NO.: SA 1/ 99

IN THE SUPREME COURT OF NAMIBIA

In the ma tter between

PHILLIPUS LONGER APPELLANT

And

THE STATE RESPONDENT

CORAM: , Teek, A.J.A., Levy, A.J.A., O'Linn, A.J.A.

HEARD ON: 01/ 10/ 1999 and 10/ 10/ 2000

DELIVERED ON: 2000/ 12/ 08

_____________________________________________________________________________

APPEAL JUDGMENT

_____________________________________________________________________________

O'LINN, A.J.A. : The ap pellant ap p lied for c ond ona tion of the lat e filing of his

ap pe al a ga inst c onvic tion in the m ag istrate 's c ourt o f Swa kopm und on 5

c harges of c heq ue fraud and ag ainst the sentenc es imp osed .

A full benc h of the High C ourt refused c ond ona tion on 13 th Dec em be r 1999.

Ap pe llant then a pp ea led to the Supreme C ourt without spe c ial lea ve o f either

the High C ourt or Supreme Court. This the a ppellant wa s entitled to d o o n the


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clear understanding that the appeal was against the order refusing

condonation and not against the conviction and sentence, even though the

me rits of a n a pp ea l ag ainst the c onvic tion a nd sentenc e a re a lwa ys pa rt of the

c onsideration of an a pp lic at ion for condona tion. The Suprem e Co urt in suc h a

case has no jurisdiction to deal with such an appeal as an appeal against

conviction and sentence.

Consequently, if this Court upholds the appeal against the refusal to grant

condonation, the appeal against conviction and sentence must be heard in

the High Court. On the ot her hand , if this Co urt d ismisses the a ppea l aga inst

the refusal of c ond ona tion, that is the e nd of the ma tter. 1

I now p roc eed to d ea l with the a pp ea l ag ainst the refusal of co ndo nation and

will dea l for this purpose w ith the p rospec ts of suc c ess of t he p rop osed appea l

ag ainst c onvic tion a nd sentenc e.

The fo llow ing fa c ts a re c om mo n c ause o r not in dispute:

(i) The a ppellant d rew five c heq ues on his ba nk, the Sta nda rd Bank,

ha nd ed in respec tive ly as Exhibits "A", "B", "C", "D" and "E". The

c heq ues we re d raw n on the following d ate s and for the fo llowing

amounts:

1 S v Tsed i, 1984(1) SA 565(A)S v Absa lom, 1989(3) SA 154 at 162 B - 166 DS v Cassidy , 1978(1) SA 687(A) at 690 F - HS v Go pa l , 1993(2) SAC R 584(A) a t 585, c - d

Com me ntary on the Criminal Proc ed ure Ac t by du Toit et al , the footnote on p .3I - 15


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8 th Feb ruary 1991, c heque 017 for N$120,00;

9 th Feb ruary 1991, cheque 018 for N$20,00;

18 th Feb ruary 1991, cheque 021 for N$100,00;

18 th Feb ruary 1991, cheque 020, for N$50,00;

18 th Feb ruary 1991, cheque 022, for N$80,00.

(ii) All the cheques were cash cheques which were given by the

appellant to the complainant, Mr. Kluft in part for goods and in

pa rt for ca sh.

(iii) None of the c heq ues were po st-dat ed .

(iv) The c heq ues we re a ll d raw n on a ppellant's bank, name ly

Sta nda rd Bank and d ep osited by co mp la inant with his bank, the

Commercial Bank.

(v) None of the cheques were met when presented and all were

ma rked by app ellant's bank - "Refe r to d rawe r".

(vi) The c heque s we re d ep osited by c omp lainant in his ba nk ac c ount

for collection by his bank and presented for payment to

ap pe llant's ba nk within 2 - 4 da ys from the d ate of the c heq ue a s

is apparent from the following dates and bank stamps on the

cheques:


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EXHIBIT "A": c heque da te d 08/02/1991 for R120,00 -

sta mp ed by Com me rc ia l Bank --/02/1991 (front)

sta mp ed by Sta nda rd Bank 11/02/1991 (bac k)

stamped by Commercial Bank 12/02/1991

(back)

EXHIBIT "B": c heque da te d 09/02/1991 fo r R20,00

sta mp ed by Com me rc ia l Bank --/02/1991 (front)


Sta mp ed by Com me rc ia l Bank 12/02/1991

(back)

EXHIBIT "C": c heque d a te d 18/ 02/1991 for R100,00


(front)



(back)

EXHIBIT "D": c heque d a te d 18/ 02/1991 for R50,00


(front)



(back)

EXHIBITH "E": c heque da te d 18/02/1991 fo r R80,00


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(ix) The c om plainant co nfronted the ap pe llant a fter the c heque s

were returned "refer to drawer" and the appellant said that he

wa s sorry ab out it and tha t he wo uld p ay c om plainant.

The c om pla inant rem inde d the a pp ellant lat er in 1991 whe n

appellant was stationed at the border-post between

Swa kopmund and Walvis Bay tha t he ha d not p aid.

Warrant Officer Uiseb informed the appellant of the case against

him when he w as sub seq uently sta tione d a t Uis.

No payment was however made to complainant until two days

before the commencement of the criminal trial in February 1993,

two years after the c heq ues we re returned unpa id.

(x) When the charges were first put to the appellant at the section

115 proc eed ings in the Swa kopm und Ma gistrate's Court, a fter he

was told by the presiding chairperson that he "may reveal his

de fenc e - but w as not ob lige d to d o so" app ellant m erely said:

"We have a greed tha t I should repa y com plainant. I ga ve

him mo ney bac k - on 2/ 2/ 93. I telegrap hed the mo ney to

complainant and I feel there should be no charge against

me."


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(xi) The a ppellant dec lined to te stify a t the end o f the Sta te c ase

notwithstanding a warning by the presiding magistrate of the

imp lica tions of the p resump tion c onta ined in sec tion 245 of Ac t 51

of 1977.

(xii) The only indic a tion during the tria l tha t the a ppellant thoug ht tha t

the cheques will be met was contained in the following question

put by t he a pp ellant to the c om plainant in c ross-exam ination:

"I believed tha t a t time I presente d c heq ues if c heq ues had

be en pa id in that time they would have be en me t as there

wo uld have bee n funds ava ilab le." Comp la inant Kluft

rep lied : "The la st three c heq ues we re b anked three (3)

days after we received the cheques - there was no time

delay".

(xiii) After conviction and during the sentence stage the appellant

te stified und er oa th and sa id: "Time of the c om mission of those

offences wife was in hospital where she had undergone a

cicearian and I was under financial pressure and that is why I

we nt to c omp lainant for som e help".

Ap pellant a lso sa id tha t he "ha s p resent ly financ ial c risis".


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It has been argued before us on behalf of appellant that section 245 of the

Criminal Procedure Act as well as sec. 236 is unconstitutional because these

p rovisions are in c onflict w ith Art. 12 of the Na mib ian Co nstitution.

In South Afric a the Constitutiona l Court has dec ided tha t sec tion 245 is

unconstitutional in that it provides for a presumption and is consequently in

c onflic t w ith sec tion 25(3)(c) of the interim Constitution c onta ined in South

African Act 200 of 1993 providing for a fair trial in which an accused person is

presumed to be innocent until proved guilty.2

The sa id interim Co nstitution has

since been overtaken by the final Constitution contained in the Constitution of

South Africa, Act 108 of 1996.

There a re severa l imp ortant d ifferenc es bet we en the releva nt p rovisions in the

above -sta ted two Constitutions and the p rovisions of Art. 12 and partic ula rly Art.

12(d ) of the Namibian Constitution. Art. 12(d) p rovides:

"All persons charged with an offence shall be presumed innocent

until proved guilty according to law, after having had the

opportunity of calling witnesses and cross-examining those called

against them."

(My em pha sis ad de d.)

The w ords "proved guilty ac c ording t o law " a nd after having ha d the

op po rtunity of c a lling witnesses and c ross-examining those c a lled aga inst t hem "

2 S v C oe tzee & Ors , 1997(3) SA 527 (C).


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d o not a ppea r in the Sout h Africa n provisions. Furthe rmo re the South Afric an

provisions provide for a "general clause on limitation of rights" applicable to all

fundamental rights whereas in Namibia fundamental rights are distinguished

from "the right t o funda menta l freed om s" and only the funda me ntal freed om s

c an be limited b y the general limita tion clause.

The result arrived a t in South Afric a ma y c onseq uently not ne c essa rily be the

sam e as tha t in Nam ib ia . It will for insta nc e have to b e d ec ided wha t is me ant

by the phrase "ac c ording to law". Does it refer to com mo n law, sta tute law , or

c ustoma ry law or a ll or som e of the se manifesta tions of the law ? In South

Africa, the Court in Sta te v Coe tzee & Ors, sup ra , relied heavily on what the

po sition w as under the c om mon law relating to the State 's duty to prove e ac h

and every c riminal c harge b eyond rea sona ble do ubt.

In Namibia, the normal gram ma tic al mea ning w ould inc lude the a bo ve-stat ed

ma nifesta tions of the law . Conseq uently the sta tute law , which existed a t the

time w hen the Namibian Co nstitution b ec am e op erative, wo uld b e p art of the

law and that law included legal presumptions, some justifiable, others not,

which were ac c ep ted for de c a de s as pa rt of Nam ibian law . The mem be rs of

the Constituent Assembly and their legal advisers were certainly aware that

these p resump tions we re p a rt o f the then existing law and if it was intend ed to

exc lude a ll sta tutory provisions p roviding fo r presumptions from the te rm "law" in

Article 12(d), it would have been easy to omit the words "according to law" or

to use different lang uag e.


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The c rime of fra ud c an be defined a s "the unlawful and intentiona l ma king o f a

misrepresentation which causes actual prejudice or which is potentially

prejudicial to another" 4

The req uirem ent of intention in turn requires proo f tha t the ac c used must ha ve

bee n aware tha t his rep resent a tion is fa lse. But, as Snyman points out :

"an accused can be said to be aware that his representation isfa lse, no t o nly if he know s tha t it is fa lse, b ut a lso if he ha s no honestbelief in its truth, or if he acts recklessly, careless as to whether it istrue or fa lse. He c an eve n be sa id t o know tha t his rep resenta tion isfalse if, although suspicious of their correctness, he intentionallyabstains from checking on sources of information with the expresspurpose of avoiding any doubts about the facts which form thesub jec t ma tte r of the rep resenta tion. All the se rules, app lied inpractice, it is submitted, are merely applications of the rule thatdolus eventualis suffices, that it is sufficient if the accused foreseesthe possibility that his representation may be false, but nevertheless

dec ides to m ake it. "5

The lea rned autho r Milton in Sout h Afric an Crimina l Law a nd Proc ed ure sets out

the law o n the po int a s follow s:

"The locus classicus in reg ard to intent to de c eive is Derry v Peek, in

which Lord Herschell said:

'Fraud is proved when it is shown that a falserepresentation has been made (1) knowingly or (2)without belief in its truth, or (3) recklessly, carelesswhe ther it be t rue or false. Althoug h I have treat ed thesec ond and third as d istinc t c a ses, I think the third is butan instance of the second, for one who makes a

3 Myb urgh v C om me rc ial Bank, NmS, Decem be r 2000, unrep orted 4

Criminal Law by Snyman, 3rd

ed . p. 4875 IBID , 493/ 494 and the dec isions refe rred to in footnote 57.


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sta tem ent und er such c irc umstanc es c an have no realbelief in its truth.'

Lord Herschell goes on to make it plain that the second case -absence of an honest belief in the truth of the representation -

includes possibilities (1) and (2) in the a bove dictum . This definitionhas been a dop ted in numerous South Africa n c ases, civil andcriminal, and notably by the Appellate Division in R v Myers. Shornof excess verbiage, however, all that is required is that X must havema de the rep resenta tion foresee ing tha t it might be false." 6

I must p ause here to rem ark tha t Hanna h, J., and Frank, J., in their judg em ent in

the High Court set the req uirem ents too high whe n they sa id :

"The a pp ellant e lec ted not to give evide nc e a nd the only questionwas whether the evidence established that at the time thecheques were issued, the appellant knew or believed that theywould not be met."

When the appellant in the case dated and signed the cheques, he

rep resented that the c heq ues wo uld b e me t on presenta tion. The c heq ues

we re not m et. The element of making a fa lse rep resenta tion was c onseq uently

proved in each c ase.

The fa c ts which I set o ut ab ove w hic h are c om mo n c ause o r not in dispute,

constitute at least a strong prima fac ie c ase that the a pp ellant c ould not have

had and in fact did not have any honest belief in the truth of the aforesaid

rep resenta tion. How c ould he have had an honest belief, whe n he c onsta ntly

had a de bit ba lanc e and when some c heques were met and other not. At

6 South Afric an Criminal Law a nd Proc ed ure, Vol. 2, Com mo n Law Crime s, 3rd ed.,by Milton,

730/731. See a lso the d ec ision of Stegma n in Ex Parte Lebawa Development Corporation Ltd., 1989(3) SA 71 (T) a t 101 G - I where the two d istinc t


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least, he ac ted rec klessly - c a reless a s to whe the r his rep resenta tion w as true o r

fa lse. Alternat ively, he fo resaw the p ossibility tha t his rep resent a tion ma y be

false, but neve rtheless dec ided to m ake it.

The a ppellant fa iled to te stify. There wa s c onseq uently no evidenc e indica ting

that he honestly be lieved tha t the c heq ues wo uld b e met. And the ac c used

was the only person who was in a position to tell the Court what his state of

mind wa s, if it w as in fac t d ifferent from the guilty sta te o f mind reflec ted in the

abovestated proven facts.

The a ppellant w as a p olic em an. Although he w as not a ssisted by co unsel, it

would have been a simple matter for him to testify as to his belief, if he had in

fac t a n hone st b elief in the truth o f his rep resenta tion.

In the circumstances, the strong prima facie proof was converted into

c onc lusive p roo f. 7

I have read the judgment proposed by my brother Levy, A.J.A., but do not

ag ree tha t the ap pe al must succ eed . In my respe c tful view, the ap pe al must

be d ismissed .

rep resenta tions ma de , are d ea lt w ith - one a mounting to do lus d irec tus and theothe r to dolus eventualis.

7

S v Van Wyk , 1993 NR 426 NmSC a t 434H - 435GS v Haikele & Ors , 1992 NR 54 (HC) a t 63 C - 64 A


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Although the learned Judge apparently accepts that the intention to defraud

c an b e in the form of dolus eventualis , he fa ils to app ly this p rinc iple to the fac ts

as ac c epte d b y Law .

He says:

"These sta tem ents p rove tha t a pp lica nt was permitted by the Bankto o pe rate his ac c ount in overdraft - even though c erta in c heq ueswe re not met by the Bank.

The Bank did not c lose his ac c ount b ut me t som e c heq ues andc ha rge d him interest on his ove rd ra ft. It is a funda me nta l p rinc iplethat a person ca nnot app rob at e and rep rob ate . The Bank wa sta king interest and keep ing his ac c ount op en. It is rea sona b lypossible that applicant was lulled into a belief that cheques may orma y not be met b ec ause tow ards the end of the mo nth the sum ofN$1211,05 wa s to b e pa id into the ac c ount. This amo unt wa s infac t pa id into the ac co unt on 27 th February reducing the overdraftto N$1 000,05."(My em pha sis ad de d.)

I ma ke the follow ing c om ments:

(i) If the appellant was "lulled into a belief that cheques may or may

not b e m et", then the rep resenta tion inherent in the d rawing o f his

c heq ues and the hand ing of it to the c om plainant a s pa yment for

go od s, he should have rep resented that the c heq ue "ma y or may

not be met".

When he rep resented by implic ation that the c heq ue w ill be me t,

he made a false representation.


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He knew that the cheque may not be met and nevertheless

handed the cheque over to the complainant as payment for

goods or in exchange for cash and thus knowingly made a

rep resenta tion whic h was not true. Alterna tively, eve n if he

entertained a belief that the cheques will be met, the belief was

not honest, because it was "the outcome of a fraudulent

dilige nc e in ignoranc e. 8

(ii) The la st sente nc e in the above -quoted pa rag rap h is inc orrec t in

that the overdraft was not reduced to N$1 000,05, but the

ove rd ra ft wa s rep lac ed by a c red it ba lanc e of N$1 000,05.

(ii) The a lleg ed indulge nc e b y the ap pellant's bank to a llow

appellant to "operate this account in overdraft even though

c erta in c heq ues we re no t m et b y the Bank", is exagg erate d and

too muc h relianc e is plac ed on this fac tor.

After all, as shown above, none of the five cheques given during

Feb ruary 1991 to c om pla inant we re met. The tw o c heq ues relied

on fall outside the period during which the five cheques given to

c om plainant w ere given and a ll d ishonoured . The first one o f the

above two i.e. No. 14 for N$850,00, was tend ered and me t on tha t

same date when there were sufficient funds in the Bank to cover

8 R v Myers , 1948(1) SA 375 (A) at 382


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a ll but N$850,00. The sec ond c heq ue relied on , i.e. No. 23 for

N$40,00 on 20 th February 1991, "was cashed for N$40,00 and met

by the Bank a lthough a pp lic ant w as in overdraft". This c heq ue

wa s ap pa rently c ashed by the ap pe llant himself at his ow n b ank.

Both this cheque and cheque No. 14 were not placed before

Court and neither the State , nor the de fenc e led a ny evide nc e in

this rega rd. How the ap pellant had m ana ged to ca sh cheq ue

No. 14, is c onseq uent ly unknow n.

After the 5 th Feb ruary when a pp ellant's ac c ount onc e mo re had a

deb it b alance, no c heques drawn b y ap pellant w ere honoured.

Although the a pp ellant pa id a c heq ue fo r N$1 201,05, ap pa rently

his sa la ry c heq ue into his banking ac c ount on 27 th February 1991,

he was again overdrawn by the end of the 28 th . The appellant

apparently also paid his salary cheque for January 1991 into this

banking account but by 5 th February 1991, his account again

showed a debit balance and remained so until the 27 th February

1991 whe n he wa s in c red it for one d ay only. Unfortuna te ly, Levy,

A.J.A., stopped with the history of the appellant's account on 27th

Feb ruary. Ap pellant wa s ove rd rawn for the who le pe riod during

which he g ave c heques to c omp lainant.

The c om plainant only ma nag ed to rec over his mone y from

appellant, two years later, a few days before the


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commencement of the appellants trial in the magistrate's court,

Swa kopm und.

It is c onseq uently a g ross oversta tement to sa y - "the se sta teme nts

prove that applicant was permitted by the Bank to operate his

account in overdraft even though certain cheques were not met

by the Bank."

Simila rly, the sta tem ent tha t the appellant "wa s lulled into a belief

that c heques ma y or may not be met b ec ause tow ards the end

of the month the sum of N$1 211,05 was to be paid into the

ac c ount " is muc h too g ene rous to the a ppellant. Furthermore,

the reliance on the payment of N$1 211,05 on 27/02/91 gives a

distorted picture, if the fact that appellant was again overdrawn

on the next day, is not mentioned and not brought into the

equation.

Apart from the implications of section 245 of the Criminal

Procedure Act, the effect of the appellant's failure to testify, had

to w eigh hea vily ag a inst him in the c irc umsta nc e of this c a se. My

learned brother wrongly fails to give any consideration to this

fac tor in his p rop osed judg me nt.

The la st a rgum ent of my lea rned b rothe r Levy is formula ted a s

follows:


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"Applying the principles in Blom's case, there is a

reasonable inference to be drawn from these facts

that Kluft knew or foresaw the possibility that when he

presented cheques "C", "D" and "E" for payment at

Stand ard Bank they may not be met a nd that he ma y

have to w ait for pa yment. In the circ umstanc es the

inevitable inference that applicant intended to

de c eive Kluft when he ga ve him the c heq ues c annot

be drawn."

I wish to c om me nt a s follow s:

(i) This a rgum ent restric ts itself to the last three c heques. The first tw o

c heq ues a re ignored . If the excuse is va lid fo r the last three

c heq ues, it d oe s not c ove r the first tw o.

(ii) My lea rned b rother app lies a very novel ap proac h. Instea d o f

focussing on whether or not the appellant had reasonably

foreseen that the cheques would not be met and nevertheless

gave the cheques to complainant, he focuses on the possibility

that the last three c heq ues wo uld also no t b e m et.

He now assumes, without the slightest evidence, that the

complainant knew that the last three cheques would not be met


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and accepted the cheques simply as "acknowledgements of

deb t" as "a b usiness risk". But a t the same t ime he relies on w ha t

the appellant said in cross-examination of the complainant

namely that he expected the cheques to be met, not that Kluft

ac cep ted that the c heques would not be met a nd ac ce pted the

c heq ues a s a "business risk" and "as ac knowledgem ent of d eb t".

For suc h a unique de fenc e, one wo uld ha ve expec ted at least an

a lleg a tion to tha t effe c t, at lea st in c ross-examination.

The a rgument a lso relies hea vily on the assumption tha t when

complainant received the last three cheques he knew the

p revious two ha d not been honoured by the Bank. This

assump tion ag a in is me re spec ulat ion. No one know s whe ther or

not complainant in the interim received his bank statement and

pa id c heq ues and c heq ues ma rked R/ D from his ba nker.

The que stion not p ond ered b y the lea rned judg e is: If the

complainant Kluft accepted the cheques as a mere

"ac knowledg eme nt of de bt " why did he d ep osit the c heque s with

his bank for co llec tion within three (3) da ys of rec eiving them ?

Even if it is a ssume d tha t the c om plainant d id foresee the possibility tha t the last

three cheques may not be met, this surely does not mean that the appellant

had no intention to d efraud and that he c ould be exonerated on that g round.


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Far from him being protected by the mere possibility that the complainant

knew at the time of receiving the three cheques that the first two had been

dishonoured, the appellant had less justification for a belief that the last three

cheques would be honoured, than that the first two would be honoured.

Consequently, even if he had a bona fide belief that the first two cheques will

be met , he c ould not ha ve ha d such a be lief when he t end ered the last three

c heques to the co mp lainant.

It is trite law that even if the representee knows that the representation is false

whe n m ade, suc h fa c t d oe s not a ssist t he rep resento r, provided there is at lea st

potential prejud ic e. Ob viously, whe n the rep resente e m erely suspec ts tha t the

rep resent a tion is fa lse, suc h fac t c annot p ossibly a ssist the rep resentor. Afte r

referring to many decisions of the Courts on this point, the learned author Milton

concludes:

"Accordingly, it is the law that a person commits fraud where hemakes a representation which is not believed by and does notdeceive the person to whom it is addressed (provided themisrep resenta tion is potent ially p rejud icia l)". 9


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It follow s from the a bove tha t the re a re no rea sona b le p rospe c ts of suc c ess on

appeal .

In the result, in my resp ec tful view , the a ppea l should be d ismissed .

(signed) O'LINN, A.J.A.

COUNSEL ON BEHALF OF THE APPELLANT: Mr. P. Ellis ( informa pauperiis)(Ellis & Pa rtners)

COUNSEL ON BEHALF OF THE RESPONDENT: Mr. A.H. Potg ieter(Prosecuter-Genereal)

/mv

9

South Afric an Criminal Law a nd Proc ed ure, Vol. II, Co mm on Law Crimes, p . 728See a lso: Criminal Law , 3 rd ed . by Snyman, 491.

longer v the state

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