S v Dada (76/2002) [2002] ZANWHC 45 (12 December 2002)

CA NO: 76/2002

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

YUSUF

DADA

Appellant

and

THE

STATE

Respondent

CRIMINAL APPEAL

MAFIKENG

NKABINDE J; PISTOR AJ

DATE OF HEARING : 22 NOVEMBER 2002

DATE OF JUDGMENT : 12 DECEMBER 2002

COUNSEL FOR THE APPELLANT : ADV

B ROUX SC

COUNSEL FOR THE RESPONDENT :

ADV J BASON

PISTOR AJ:

This is a criminal appeal. The Appellant was charged with fraud in a Regional Court and was convicted as charged. He was sentenced to a fine of R8000-00 or, in the alternative, to a period of 6 months imprisonment. He appealed against both the conviction and the sentence. Adv Roux SC, who did not appear for the Appellant in the court a quo but who argued the appeal before us on behalf of the Appellant, abandoned the appeal against sentence.

INTRODUCTION:

The Appellant is a director of Dada Motors, a motor dealer in Mafikeng. The complainant in the matter is a client with whom the Appellant in his aforesaid capacity had a long relationship and to whom Dada Motors (the dealership) had sold a number of vehicles in the past.

He is a practicing Advocate and was, at the time relevant to this case, employed by the Government as a Legal Advisor. The complaint, lodged by the complainant, was that during January 2000 he had bought a 735 BMW vehicle from the dealership and that he was told by the Appellant that the vehicle was new whilst it had been registered as a demonstration vehicle during August the previous year (1999) and as a result (so the complaint goes) the complainant has suffered damages. It is the basis of the complainant’s case that he was told by the Appellant that the vehicle was new, that the Appellant had intentionally misled and defrauded him (complainant) in that the Appellant had brought him under the impression that the vehicle was a new 1999 model whilst failing to reveal to the complainant the fact that the vehicle had been registered previously.

Credibility:

The learned presiding Magistrate in the Court a quo accepted the evidence of the complainant and of the other State witnesses and rejected the evidence of the Appellant. The learned Magistrate did so on the basis that the Appellant was not consistent in his defence, that he was avoiding questions in cross-examination and that he was not truthful in his evidence. It is now trite law that a Court of Appeal will not lightly interfere and upset the credibility findings of a trial Court.

In Wynland Properties CC v Potgieter and Another 1999(4) SA 1265(C) at 1272(E) MOOSA J stated this principle as follows:

“It is trite that a Court of appeal will, as a rule, not interfere with the findings of the court a quo on the facts unless there has been a misdirection. It has been said that the trial court has the distinct advantage of seeing and hearing the witnesses and in being steeped in the atmosphere of the trial (R v Dhlumayo and Another 1948 (2) SA 677 (A)).”

In Ndlovu v AA Mutual Insurance Association Ltd 1991(F)(3) SA 655(E) at 659(E – F) ERASMUS J is reported to have said:

“According to the principles governing appeals, the power of a Court of appeal to substitute its findings of facts for those of the trial Court is limited.”

In any event, having had the opportunity of reading the record, I can find no basis for interfering with the findings of the learned presiding Magistrate in this regard. It was also not strongly argued before us that the magistrate was wrong in his findings on credibility. Therefore, the appeal has to be considered on the facts found by the trial court to have been proved.

THE ARGUMENT:

Mr Roux argued strongly before us that the probabilities in this case dictate that the Appellant would not have taken the risk of defrauding the complainant whilst in doing so he (the Appellant) must clearly have been aware of the fact that he would be losing a good client. The argument is of course strong and convincing and need to be considered carefully. Unfortunately, it is not entirely in line with the Appellant’s case that was put before the Court a quo.

In the Court a quo the evidence of the complainant was that prior to the finalisation of the transaction with the Appellant, the Appellant told the complainant that the BMW vehicle that the complainant was on the point of buying was a new vehicle. It was at no stage denied during cross-examination that the complainant was so informed by the Appellant. The complainant’s wife also testified to the effect that the Appellant had told her and her husband that the vehicle was a new (or a brand new) vehicle. This evidence was not disputed on behalf of the Appellant in cross-examination. The complainant further testified that he would not have bought the BMW vehicle if he had been aware of the fact that it had been registered twice in the past. This evidence was also not disputed in cross-examination.

Against this evidence on behalf of the State the Appellant’s case must be considered. The Appellant pleaded not guilty and admitted that the vehicle had been registered twice as a demonstration vehicle. On behalf of the Appellant it was argued in the court a quo that the complaint against the Appellant is the result of a misunderstanding. The Appellant testified that he considered the year of registration of a motor vehicle as the year of the model of that motor vehicle. He further testified that he was at all times relevant to the case aware of the fact that once a vehicle had been registered it became a used vehicle and cannot be sold as a new vehicle. He also testified that he was aware of the fact that the vehicle in casu had been registered twice in the name of garages in Natal. Therefore, if it has to be accepted that the Appellant told the complainant that the vehicle was new, the Appellant, on his own version, could have had hardly any other intention than to defraud the complainant in those circumstances since, he was at the stage that he had told the complainant that the vehicle was new, well aware of:

(a) the fact that the vehicle had been registered before as a demonstration vehicle.

the fact that the vehicle could not have been sold as new because of its previous registration.

In these circumstances there is no basis on which it can be found that the Appellant had made any bona fide mistake and that he did not intend to mislead and to defraud the complainant when he told the complainant that the vehicle was new. The Appellant must have realised this difficulty in his case and in his own evidence he testified that he indeed had told the complained that the vehicle had been registered before. That fact is of extreme importance for the defence case. Yet, it has never been put to the state witnesses.

We were referred to the dictum of DAVIS AJA in Rex v M 1946 AD 1023 at 1026 and 1028 which reads inter alia as follows:

"As a rule a party should put to each of his opponent's witnesses in turn so much of his own case as concerns that particular witness, or in which he had a share.... If he asks no questions he will, in England, though not perhaps in Ireland, generally be taken to accept the witness's account.... Moreover, where it is intended to suggest that the witness is not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination, so that he may have an opportunity of explanation.... Failure to cross-examine, however, will not always amount to an acceptance of the witness's testimony, eg if the witness has had notice to the contrary beforehand, or the story is itself of an incredible or romancing character....

These remarks are not intended to lay down any inflexible rules even in civil cases, and in a criminal case still greater latitude should usually be allowed.”

In Small v Smith, 1954(3) SA 434(SWA), CLAASSEN J, remarked in this regard as follows:

“It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns the witness …… It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination, and afterwards argue that he must be disbelieved.”

The position might have been different if the accused had been an illiterate defending himself. In such event the remarks of MALHERBE J, as he then was, in S v Sebatana 1983(1) SA 809(O) at 812(G) are apposite namely:

“Ondervinding het by herhaling geleer dat veral ongeletterde en eenvoudige ….beskuldigdes enkele irrelevante vrae aan 'n Staatsgetuie stel, of, soos hier, geen vrae hoegenaamd stel nie en dan later getuienis aflê wat in verskeie wesentlike opsigte bots met wat die Staatsgetuie gesê het. Dit is na my mening die gevolg van onkunde omtrent die werklike aard en doel van kruisverhoor”

In casu the position is different. The Appellant was represented by a senior Advocate.

Our attention was invited to a number of documents relating to the transaction between the Appellant and the complainant in which the vehicle was referred to as either a “1999 model” or as a “used vehicle” and we were invited to find that the Appellant would not have suggested to the complainant that the vehicle was “brand new” whilst the documents were reflecting the contrary. These documents are the following:

An application form for finance which was accepted as exhibit “F” in the Court a quo. This document refers to the vehicle as a “1999 used” vehicle. This document was completed by one Mr van Rensburg, a business development officer in the employ of Standard Bank of South Africa (trading as Stannic). Mr van Rensburg testified that he had available on record information with regard to the complainant as a result of previous deals between the bank and the complainant. It is not clear from the evidence of Mr van Rensburg where the information “1999 used” that appears on exhibit “F”, had been obtained from. On the evidence of the complainant it is clear that he had not provided that information to Mr van Rensburg. Mr van Rensburg did not say that he obtained that information from the complainant. It was also not put to Mr van Rensburg that the said information was obtained from the complainant. In this regard the Appellant’s evidence has to be considered. In his evidence in chief he was asked by his Counsel:

“Did you supply Mr van Rensburg with all the information or is it all the information contained on annexure “F” (exhibit “F”) from Mr Jagga?

Mr Dada: If we could supply any of the information, we would have filled in the application forms ourselves.”

He was then asked:

“So that can only be the information coming from Mr Jagga?

Mr Dada: That is correct, and we do not know any of his information whether he has moved or he has not moved ……”

The implication of the Appellant’s evidence in the quoted passage is to the effect that the information contained in exhibit “F” was supplied by the complainant. It is however significant that the Appellant has not expressly denied that the detail: “1999 used” was provided by him or by his business. Had it been his case initially that the said information was supplied by the complainant, then I verily believe that his Counsel would have put it to the complainant and to Mr van Rensburg.

A rental agreement, handed in as exhibit “A”, which was signed by the complainant. The document is in Afrikaans and with regard to the particulars of the vehicle it contains the following relevant information:

“Goederebesonderhede

Eerste registrasie 1999

Registrasieno. ”

The point made on behalf of the Appellant before us is, on my understanding of the argument, twofold namely (1) it is unlikely that the Appellant could have intended to mislead the complainant in view of the fact that the rental agreement indicates that the “eerste registrasie” of the vehicle was in 1999, and (2) the Appellant, having signed this rental agreement must have observed that the vehicle had been registered for the first time in 1999. The complainant’s evidence in this regard was that when he signed exhibit “A”, he indeed noticed that the “eerste registrasie” has been indicated as 1999. However, since there was no registration number indicated in the appropriate space, he believed that the “eerste registrasie” was referring to the model of the vehicle and not to the fact that it had been registered in 1999 since, had the vehicle in fact been registered in 1999, a registration number would have appeared in the appropriate space.

The registration certificate, handed in as exhibit “C” and which inter alia indicates the “date of liability for first licensing” as August 1999. It also indicates that the “vehicle status” is “used”. It also reflects two previous registration numbers. Complainant’s evidence was that he was unaware of the information contained in this document at the time of the conclusion of the deal and that, had he been aware of such information he would not have concluded the deal. I could not detect any evidence to indicate that the document was indeed made available to the complainant before conclusion of the deal. It is significant to note that none of the documents, apart from the registration certificate reflect any of the previous registration numbers of the vehicle.

A document submitted for insurance purposes which reflects the vehicle as a 1999 model and which was handed in as exhibit “D”. In this document the vehicle is referred as a 1999 model. There is however no dispute about the fact that the complainant had been aware of the fact that the vehicle was a 1999 model. The point of dispute was whether the complainant was informed that it was a “new” 1999 model. This document in my view takes the matter no further.

Therefore, the said documents in my view do not justify a finding that the Court a quo was wrong in its findings on the merits.

CONCLUSION:

I can therefore find no reason, basis or justification to interfere with the findings of the learned presiding Magistrate in the Court a quo and in my view the Appeal must fail.

J H F PISTOR

ACTING

JUDGE OF THE HIGH COURT

I agree.

B E NKABINDE

JUDGE

OF THE HIGH COURT