INTENTION TO PREJUDICE LOOKED AT FROM POINT OF VIEW OF DECEIVER

S v NDWAMBI 2016 (2) SACR 195 (SCA)

 

Fraud — Elements of — Prejudice — Intention to prejudice — Police trap — Contention that state had never intended to pay for fake rhino horn and that therefore no prejudice — Matter looked at from point of view of deceiver.

Fraud — Elements of — Misrepresentation — Knowledge that representation false — Proof of — Accused failing to give acceptable explanation and would be impermissible speculation in circumstances to hold that misrepresentation unknowingly made.

Conservation — Rhino horn — Sale of fake rhino horn — Sentence — Police official attempting to sell fake rhino horn to police trap — Sentence of six years’ imprisonment confirmed on appeal.

 

The appellant, a police official, was convicted in a regional magistrates’ court of committing fraud in that he had been complicit in a transaction in which his co-accused had sold a very good imitation of a rhino horn to a police trap. He was sentenced to six years’ imprisonment. Having appealed unsuccessfully to the High Court against his conviction and sentence, he argued in the present appeal that the proven facts had not established all the elements of the crime of fraud, in that there was no evidence that he had intended to deceive, nor of prejudice. It was contended that, as the state’s evidence was to the effect that the police had no intention to pay for the rhinoceros horn, there could be no prejudice. The trial court had rejected his evidence that he had no knowledge of the contents of the bag containing the fake horn that his co-accused had carried to the vehicle involved in the police trap. It also rejected his assertion that he had thought that his co-accused had been going to meet a client in connection with her works of art. The present court agreed with the trial court’s assessment of the evidence, its adverse credibility findings relating to both the appellant and his co-accused, and ultimate rejection of their evidence. It also agreed that there was not the slightest doubt that the state evidence was honest and accurate.

Held (per Meyer AJA; Navsa ADP, Leach JA and Schoeman AJA concurring), that in the circumstances of the case any suggestion that the appellant and his co-accused had not known that the object was a fake lacked a factual foundation and would therefore amount to impermissible speculation. It lay exclusively within their power to show what the true facts were but they had failed to give an acceptable explanation. The prima facie inference that the false representation was made knowingly thus became conclusive.

Held, further, as to the issue of prejudice, that the contention by the appellant ignored the long-standing principle that the law looked at the matter from the point of view of the deceiver, and not the deceived, and that it was immaterial whether the person to be deceived was actually deceived or whether the prejudice was only potential. In any event, objectively, some risk of harm — which did not have to be financial, proprietary or even to the person to whom the representation had been addressed — might have been caused, given the contribution of such transactions to the illegal trade in rhinoceros horn in South Africa.

Held, as to sentence, that, when the reprehensible nature of the conduct was assessed, together with the intention to deceive and the fact that the accused was a policeman who was supposed to be on official duty at the time, the sentence of six years’ imprisonment was appropriate. The appeal was dismissed.

Held (per Willis JA, dissenting), that it was not proved beyond a reasonable doubt that the appellant was an accomplice to the crime of fraud, even though he clearly was an accomplice to some kind of crime. To come to the conclusion that he was guilty of fraud, one had to draw inferences that could not be justified — the replica was of such a superlatively good quality that it was only the day after the arrest, when it was confirmed by the forensic laboratories, that the scandal of the imitation was revealed. In the circumstances it could not be concluded beyond a reasonable doubt that the appellant knew either that he was an accomplice to a false representation being made or that he knew that the horn was fake. Neither was it proved that the appellant foresaw that a false representation might be made in regard to the sale of a rhino horn that was a fake, or even that he foresaw the possibility that a fake rhino horn might be sold.

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