THE SUPREME COURT OF APPEAL

REPUBLIC OF SOUTH AFRICA

JUDGMENT

 

CaseNo: 338/09

 

In the matter between:

 

 

JACOBUS PETRUSCHRISTIAAN MOSTERT SNR 1st APPELLANT

JACOBUS PETRUS CHRISTIAAN MOSTERT JNR 2nd APPELLANT

 

V

 

THE STATE RESPONDENT

 

 

Neutral citation:      Mostertv The State (338/2009) [2009] ZASCA 171

(1December 2009).

Coram:                       Navsa,Mthiyane, Heher JJA, Leach et Griesel AJJA

Heard:                        4November 2009

Delivered:                 1December 2009

 

Summary:    Unauthorizedabstraction of water from a river – whether state limited to prosecutionof statutory offences and common law prosecutions are excluded – effectof s 98 of the National Water Act of 1998.

 

 

 

 

 

 

______________________________________________________________

 

ORDER

______________________________________________________________

 

On appeal from: North Gauteng HighCourt (Basson J and Smith AJ sitting as court of appeal).

 

The following order is made:

 

1.      Theappeal against the appellants’ convictions on counts 3 and 4 is dismissed.

2.      Theappeal against the sentence imposed in respect of counts 3 and 4 is upheld andthe sentence altered as set out below.

3.      Therespondent’s cross-appeal in regard to count 1 (fraud) is upheld and the highcourt’s order upholding the appellants’ appeal against their conviction on thatcount is set aside.

4.      Therespondent’s cross-appeal in regard to count 2 (theft) is dismissed.

5.      Theorder of the high court is altered to read as follows:

‘(a) The appeal in respect of the first appellant’sconviction on counts 2, 5, 6 and 7 and the second appellant’s conviction oncounts 2, 5 and 6 is upheld and such convictions and the sentences imposed inrespect thereof are set aside.

(b) The appeal in respect of the appellants’ convictionson counts 1, 3 and 4 is dismissed.

(c) In respect of their conviction on count 1 (fraud)each appellant is sentenced to a fine of R20 000 or 12 months’ imprisonment,wholly suspended for four years on condition he is not convicted of fraudcommitted during the period of suspension and for which he is sentenced toimprisonment without the option of a fine.

(d) The appeal against the sentence imposed in respectof counts 3 and 4 is upheld, the sentence is set aside and (both counts beingtaken together for purposes of sentence) replaced in the case of each appellantwith a fine of R5 000 or six months’ imprisonment.’

 

______________________________________________________________

 

JUDGMENT

 

 

LEACH AJA (NAVSA, MTHIYANE, HEHER JJA et GRIESEL AJA concurring)

 

[1]        The two appellants,who are father and son, grow sugarcane in a joint enterprise on the farm‘Dadelvlak’[1] in the district of Barberton. Thefarm is riparian to the Lomati River from which the appellants abstract waterto irrigate their lands. It also falls within the Lomati Irrigation Districtwhich was established on 31 October 1969 under the provisions of s 71(1) of theWater Act 54 of 1956 (‘the 1956 Act’) and in respect of which the LomatiIrrigation Board (‘the complainant’) was simultaneously created under s 79(1) of that Act.[2]

 

[2]        The functions of thecomplainant included the exercise of control over the water in the Lomati Riverwithin its area of control and the regulation of the amount of water abstractedby farmers within its irrigation district. In order to monitor the quantity ofwater being abstracted, the complainant required the farmers to register theirpump stations and to have them fitted with a water flow monitoring system knownas a ‘WAMS’.[3] The practice was for each farmerperiodically to read the meter on the WAMS and to report the quantity of waterconsumed to the complainant. These readings were also verified from time totime by the complainant’s official, referred to in evidence as the‘waterfiskaal’[4], who made periodic spot-checks on thefarms and personally took readings from the WAMS units.

 

[3]        For these purposes theappellants had registered only a single pump-station, known as pump-station 46,in respect of Dadelvlak. However, in July 2004 the complainant learned that theappellants had constructed a second pump-station (referred to in evidence aspump-station 46.1) on the farm, which was not registered and had not beenfitted with a WAMS. Understandably, the complainant suspected the appellants ofusing pump-station 46.1 to abstract water from the river which was not beingreflected in their water consumption returns. It was later also discovered thatthe electrical wiring leading to the WAMS fitted to pump-station 46 appeared tohave been interfered with in such a way that the pump could be operated withoutthe water abstracted being recorded.

 

[4]        These discoveries setin train a series of events which in April 2006 culminated in the twoappellants being arraigned in the Magistrate’s Court at Malelane on sevencriminal charges. In addition to various charges under the National Water Act,36 of 1998 (‘the 1998 Act’), they were also charged with the common law crimesof fraud and theft. Despite both appellants denying their guilt, the firstappellant was convicted on all counts while the second appellant was convictedon six of the seven counts. They were then both sentenced to either paysubstantial fines or to undergo imprisonment.

 

[5]        An appeal to the HighCourt, Pretoria succeeded to the extent that the appellants’ convictions andsentences on all but two counts were set aside, including those of fraud andtheft, while the sentence imposed on the remaining two counts, which were takentogether for purpose of sentence, was reduced. With leave of the high court,the appellants now appeal to this court against their two remaining convictionsand their sentence. On the other hand, the state sought and obtained leave toappeal on points of law against the high court’s decision in regard to thecharges of fraud and theft.

 

[6]        In the light of thisbackground, the charges levied by the state which have to be considered are thefollowing:

Count 1 – it being alleged that the appellantscommitted the offence of fraud by knowingly providing the complainant withfalse readings of the quantities of water they had abstracted from the river atpump-station 46 during the period 1998 to 2005 (in the alternative, it wasalleged they were guilty of the theft of the water that had been abstractedthrough this pump-station but not reflected in their water consumptionreturns);

Count 2 – it being alleged that the appellants areguilty of theft in that during the period 1998 to 2005 they stole an unknownquantity of water which they had abstracted through pump-station 46.1;

Count 3 – it being alleged that the appellantscontravened s 151(1)(e) of the 1998 Act in that they wrongfully, unlawfully,intentionally or negligently tampered or interfered with the WAMS measuringdevice fitted to pump-station 46;

Count 4 – it being alleged that the appellantscontravened s 151(1)(j) of the 1998 Act by unlawfully, intentionally ornegligently committing an act detrimentally affecting a water resource byillegally abstracting water from the Lomati River at both pump-stations 46 and46.1 during the period 1998 to 2005.

 

[7]        The appellantsattacked the validity of all these charges. Not only did they support the courta quo’s decision that it had not in law been open to the state to charge themwith fraud and theft, but they also contended that the charges under the 1998Act could not be brought against them as the complainant was continuing tooperate under the 1956 Act at the material time, despite the 1998 Act havingbeen brought into operation. In order to consider these contentions, it is useful to give abrief historical overview of certain of the laws relating to the use of water.

 

[8]        Water being a scarce and valuable commodity in a country such asours which is often wracked by drought, it is hardly surprising that prior toUnion in 1910 the Cape, Natal, Transvaal and Orange Free State had each passedlegislation which differed in terms of effect but controlled the use of publicwater for purposes of irrigation. It is unnecessary to detail these differencesin this judgment as the legislation in question was repealed by The Irrigationand Conservation of Waters Act 8 of 1912 (‘the 1912 Act’). Inter alia, itcreated irrigation districts,[5] as well as irrigation boards for eachsuch district,[6] which were imbued with variouspowers, including the power to construct and maintain reservoirs, channels andother irrigation works. They were also charged with the obligation to obtainand conserve the supply of water and to arrange for an equitable distributionof any water stored or diverted by any such works[7] and,in order to do so, were empowered to make bye-laws and rules prescribing ‘themanner of regulating the flow of water and the distribution from and use ofwater in the board’s channels and other works’.[8]

 

[9]        The 1912 Act wasrepealed by the 1956 Act. Not only did it retain the common law distinctionbetween private and public water which had been recognised in the 1912 Act, butit regulated the use of public water, providing for it to be used foragricultural, urban or industrial purposes. It vested the use of public waterfor agricultural purposes in the owner of land riparian to the public stream inquestion.[9] It also provided for the creation ofirrigation districts[10] as well as an irrigation board foreach irrigation district,[11] which were required, inter alia,[12]

 

[10]     The 1956 Act was repealed and replacedby the 1998 Act which fundamentally reformed South African water law. Thecommon law distinction between public water and private water was no longerrecognised as a basis for entitlement to the use of water. Instead, under s 2of the 1998 Act, government at national level was granted the overallresponsibility for and authority over the country’s water resources and theiruse. Section 3 recognises national government, acting through the minister[13]as the public trustee of the nation’s water resources, as having the power toregulate the use, flow and control of all water in the country. Section 4 goeson to prescribe who is entitled to use water, and the use of water otherwisethan as permitted under the Act is both prohibited and criminalised.[14]

 

[11]     In addition, the 1998 Act does awaywith the system of irrigation districts and their associated irrigation boardsand replaces them with a system of ‘catchment management agencies’ and ‘wateruser associations’. The former have as their purpose the delegation of themanagement of ‘water resources’ (defined as including ‘water courses, surfacewater, estuaries or aquifers’)[15] ‘to the regional or catchment leveland to involve local communities’.[16] The latter are intended to be ‘ineffect co-operative associations of individual water users who wish toundertake water-related activities for their mutual benefit’.[17] Section98(4) provides that within six months of the commencement of the Act anirrigation board established in terms of any law in force immediately beforethe 1998 Act came into operation, is to submit to the minister a proposal totransform the board into a water user association – which proposal theminister, under s 98(5), may either accept, with or without amendment, orreject. If the proposal is accepted, the minister is to gazette a declarationto that effect.

[12]     Section 98(2) of the 1998 Act is a‘sunset clause’. It provides:

A board continuesto exist until it is declared to be a water user association in terms ofsubsection (6) or until it is disestablished in terms of the law by orunder which it was established, which law must, for the purpose of suchdisestablishment, be regarded as not having been repealed by this Act.

In addition, s 98(3) provides that:

‘(a)       thename, area of operation, management, property, rights, liabilities,obligations, powers and duties of a board remain the same as immediately beforethe commencement of this Act;

(b)       thissection does not affect the continuity, status, operation or effect of any actor omission of a board, or of any by-law made by a board, before thecommencement of this Act;

(c)       anyperson holding office with the board when this Act commences continues inoffice for the term of that person’s appointment; and

(d)       ifa position becomes vacant prior to the declaration of the board as a water userassociation, the board may fill the vacancy according to the procedures laiddown by or under the law which applied to that board immediately before thecommencement of this Act.’

 

The clear intention of these provisions is that existing waterirrigation boards should continue in operation until they are restructured aswater user associations. (Although strictly speaking it should not be takeninto account in interpreting the Act[18] this is confirmed by the explanatorynote to chapter 8 of the Act, into which s 98 falls).

 

[13]     Notwithstanding the six month periodprescribed by s 98(4), the complainant was neither disestablished nortransformed into a water user association, and was still continuing to operate byvirtue of the provisions of s 98(2) and (3) at the time of the appellants’trial, some eight years after the 1998 Act had come into operation. How thissomewhat surprising state of affairs came about is, however, neither here northere and, for present purposes, it must be accepted that at all times materialto the charges brought against the appellants the complainant had continued toexist and to operate with the obligations, powers and duties it had enjoyedunder the 1956 Act.

[14]     In the light of this, the appellantsargued that the charges brought against them under the 1998 Act were notcompetent as, so they submitted, the 1956 Act had continued to be in force inthe complainant’s irrigation district – and it did not create similarstatutory offences. In my view, for the reasons that follow, this cannot beaccepted.

[15]     While it is so that the complainant hadcontinued to exist and exercise the functions it had performed under the 1956Act, this does not mean that the 1956 Act had not been repealed throughout thecountry, including within its irrigation district. The complainant’s existenceand functions were merely preserved as a temporary measure to enable it tocontinue to operate. Had the legislature intended the 1956 Act not to have beenrepealed within the areas of operation of irrigation boards established underthat Act when the 1998 Act came into operation, it would have been a simplematter for it to have said so. It did not do so, and such an intention is not anecessary inference. Indeed, the provisions of the 1998 Act clearly indicatethe contrary. Thus, for example, a person who enjoyed an existing lawful wateruse before the commencement of the 1998 Act, was permitted under the provisionsof s 34 of the latter Act to continue to exercise that use. Theexplanatory note to part 3 of chapter 4 of the 1998 Act, into which s 34 falls,gives the following relatively simple and accurate summation of the provisionsof that part of the chapter:

 

‘This Part permits the continuation undercertain conditions of an existing water use derived from a law repealed by thisAct. An existing lawful water use, with any conditions attached, is recognisedbut may continue only to the extent that it is not limited, prohibited orterminated by this Act. No licence is required to continue with an existinglawful water use until a responsible authority requires a person claiming suchan entitlement to apply for a licence. If a licence is issued it becomes thesource of authority for the water use. If a licence is not granted the use isno longer permissible.’

 

[16]     Thus, although an irrigation boardmight continue to exist and operate with the various duties and obligations ithad under the 1956 Act despite the coming into operation of the 1998 Act, itdoes so by reason of the provisions of the latter which clearly apply withinthe irrigation district of each such an irrigation board and regulates the useof water. Accordingly, anyone who commits an offence envisaged by s 151 ofthe 1998 Act may be charged under that Act, even if the offence is committedwithin the irrigation district of an irrigation board established under the1956 Act which continues to exist and operate by reason of s 98 of the 1998Act.

 

[17]     It was therefore clearly competent forthe state, in counts 3 and 4, to charge the appellants with offences under s151 of the 1998 Act. Whether the evidence establishes their guilt on thesecounts is another matter, to which I shall return in due course.

 

[18]     It is convenient at this stage toconsider the issue raised in the cross-appeal, namely, whether it was competentto charge the appellants with the common law offences of fraud (count 1) andtheft (count 2, and as an alternative on count 1) or whether the state waslimited to charging them with no more than the statutory offences created bythe 1998 Act. The cross-appeal flows from the court quo's finding that thelegislature, by comprehensively regulating the use of water by way of the 1998Act in which it created numerous statutory offences, necessarily intended tolimit the prosecution of persons for offences in relation to water and its use tothose it had provided under that Act, and had excluded common law offences theelements of which overlapped with such statutory offences.

 

[19]     In my view, the court a quo misdirecteditself in this regard. The mere fact that certain conduct might constitute anelement of both a common law offence and a statutory offence is not in itselfany reason to find that the legislature intended only the statutory offence tobe capable of prosecution. There are numerous instances where certain conductwill be an element of both a common law and statutory offence. An obviousexample which springs to mind is the negligent driving of a motor vehicle. Thisamounts to a statutory offence and an essential element of the common lawoffence of culpable homicide where it results in a loss of life. But that is nobar to the offender being charged with culpable homicide and, in thealternative, the statutory offence of negligent driving. Indeed, this court hasrecognised that in certain cases where conduct which amounts to a statutoryoffence overlaps with the common law offence, the penalty prescribed for thestatutory offence may in certain circumstances be a useful guide in consideringan appropriate sentence for a conviction of the common law offence.[19]

 

[20]     I accept that, in principle, thelegislature could bar the prosecution of certain common law offences andrestrict the prosecuting authority to bringing charges solely in respect ofstatutory offences. But there is no provision in the 1998 Act whichspecifically debars common-law offences relating to water or its misuse, norcan such a provision be found by necessary implication, and the court quo erredin finding that the appellants could not be prosecuted for common law offences.

 

[21]     While I thus see no reason why a chargeof fraud could not be brought against the appellants, that is not the end ofthe matter in respect of whether water pumped out of the Lomati River could bethe subject of a charge of theft, an issue which needs more detailedexamination.

 

[22]     Roman lawrecognised certain things as being res extra patrimonium which were incapable of being owned, including those thingsclassified as res communes being ‘things ofcommon enjoyment, available to all living persons by virtue of theirexistence’.[20] Public water, running in a river ora stream, was recognised as being res communes andtherefore incapable of being owned.[21] These Roman law principles wereadopted by Roman–Dutch law and subsequently recognised in South Africa.[22]Indeed, s 6(1) of the 1956 Act specifically provided that ‘there shall be noright of property in public water and the control and use thereof shall beregulated as provided in this Act.’

 

[23]     As water in a public stream wastherefore incapable of being owned, it was also incapable of being stolen[23]and I did not understand the state to contend otherwise. However, it submittedthat the fundamental changes brought about by the 1998 Act resulted in this nolonger being an accurate reflection of our law. Its argument in this regard wasbased on the Act having specifically placed water resources under thetrusteeship of national government as I have already mentioned in para 10above. But I do not see how the fact that government now exercisesadministration and control over water flowing in a river means it must now beregarded as capable of being owned and thus capable of being stolen.Effectively the 1998 Act does no more than place all water within the aegis ofstate control, which control the state had in any event exercised over publicwater before it came into operation. The legislature created various statutoryoffences under the 1998 Act and, if it had wished to create the offence oftheft of water, it could easily have done so. It did not. Instead, in s151(1)(a) it made the use of water other than as prescribed by the Act anoffence.

 

[24]     Accordingly, my prima facie view isthat water flowing in a stream or river (a water resource as envisaged by the1998 Act) is not capable of being stolen, so that a riparian owner whoabstracts more water from such a water resource than that to which he or she islegally entitled may commit a statutory offence under s 151 of the 1998 Act butdoes not commit the offence of theft. However, it is not necessary to reach afinal decision on this issue as, even if it had been competent for the state tocharge the appellants with theft, that charge could only have been sustained ifthe appellants had taken more water than what they had been entitled toabstract. On appeal, the court a quo concluded that the evidence in the trialcourt had failed to establish that to have been the case, and for that reasonthe appellants’ conviction for theft could not stand. The ratio of the decisionof the court a quo was based on this factual finding, not on the point of law thata charge of theft could not be brought. Its observation to the effect that acharge of theft of water was inappropriate was no more than a passing commentand was not the underlining reason why the conviction of theft was set aside.That being so, the court a quo erred in granting leave to appeal on a point oflaw in respect of the theft charge which could not determine the appellants’guilt or otherwise on that charge. And in any event, I agree that the statefailed to establish that the appellants had abstracted more water from theriver than that to which they had been entitled, even if the circumstances weresuch that their actions gave rise to a very real suspicion that they had doneso. In these circumstances the cross-appeal in relation to the charge of theftcannot succeed.

 

[25]     I turn to consider whether the evidenceestablished the appellants’ guilt on the three remaining counts. It was arguedon behalf of the appellants that the evidence of a state witness, David Maduna,an employee of the appellants, should be disregarded as he had not beenproperly sworn in by the magistrate. The point is debateable but, for purposesof this appeal, I intend to accept that no account should be had of hisevidence. The remaining witnesses were found by the magistrate to be reliableand the attack upon their honesty and credibility contained in the appellants’heads of argument was not only unjustified and groundless but was, in the main,based on speculation and matters not raised in evidence. The appellants did nottestify and, in these circumstances, there is no reason not to accept thosefactual findings of the trial magistrate, which were also accepted by the courta quo.

 

[26]     As I have mentioned, the appellants’farm lies within the irrigation district of the complainant. The appellantsregistered a single pump-station with the complainant which was fitted with aWAMS to measure the amount of water they abstracted from the Lomati River. Interms of an undertaking they had given, the appellants periodically passed onthe readings to the complainant. Those readings were verified from time to timeby the waterfiskaal. Despite the complainant having been entitled to makebye-laws, the scheme appears to have been administered by consent rather thanby the passing of bye-laws or regulations.

 

[27]     In July 2004 the waterfiskaal, Mr duToit, discovered that the appellants had built pump station 46.1 on the theirfarm to which there was no WAMS or similar system fitted, and were using it topump water from the Lomati River to a nearby storage dam on the farm –from which water was led to irrigate certain lands. This was reported to thecomplainant whose committee took the matter up with the appellants and informedthem that the pump-station was illegal and that they were to fit it with aWAMS. They agreed to do so at their own cost, but it was subsequentlyascertained that the flow-meter was mounted inside the pump-house which waslocked, and thus did not comply with the complainant’s specifications as it wasnot accessible to the waterfiskaal.

 

[28]     As a result of certain informationreceived, the complainant also suspected that the WAMS unit at pump-station 46had been de-activated so that the appellants could pump water from the riverwhich would not be recorded. This led to the complainant obtaining a warrant tocarry out an inspection on the appellants’ farm. Consequently, on 3 March 2005a qualified electrical contractor, Mr WJ de Beer, inspected pump-station 46 inthe company of the second appellant. When the second appellant unlocked thepump-house, De Beer noticed that the pump was running but that the WAMS was notregistering the water flow. The cause of this was found to be that theelectrical wiring leading to the WAMS had been bridged. It is unnecessary todeal with the technical evidence save to state that it was quite clear that theelectrical circuits had been altered so that the pump could run without theWAMS system reading the quantity of water being abstracted.

 

[29]     This evidence, unchallenged as it wasby the appellants, establishes that the appellants pumped an unknown quantityof water out of the river at pump station 46 which was not registered on theWAMS system affixed to that pump. As the figures recorded by the WAMS wereforwarded to the complainant as being the appellant’s water consumption fromthe river, the appellants therefore intentionally brought the complainant underthe impression that they had abstracted less water than they had actually done.It also prevented the waterfiskaal from verifying the accuracy of the figuresthat appellants had submitted. In a nutshell, the appellants deceived thecomplainant in regard to the quantity of water they had abstracted from pumpstation 46.

 

[30]     The court a quo appears to have foundthat the misrepresentation made by the appellants could not be regarded asbeing unlawful as there was no statutory obligation on their part to providecorrect information. But that misses the true issue, namely, that theappellants intended to and did in fact deceive the complainant by forwardingwater consumption figures which they knew were incorrect. The complainant wasrequired to protect the sources of the water in the river, to prevent anyunlawful abstraction of such water, to exercise general supervision over theriver and to recall, supervise and regulate the use of the water in the river.[24]The complainant was thus clearly prejudiced by the appellants’misrepresentations as it relied on the accuracy of the information it receivedas to the water abstracted from the river in order to discharge its functions.The essence of fraud is the deception of the victim by way of misrepresentationcausing prejudice or intentional prejudice, and it matters not that theappellants were not under a statutory obligation to provide accurate figures.Misrepresentations were clearly made by both appellants, either in concert orby making common cause with the actions of each other, and caused either director potential prejudice to the complainant. Consequently, while the appellantscannot be found guilty of theft of the unknown quantity of water which theyabstracted but did not account for to the complainant, there is no reason whythey cannot be found guilty of fraud. I have no difficulty in concluding thatthe state established the guilt of both appellants on count 1.

 

[31]     In relation to count 3, it is allegedby the state that the appellants contravened s 151(1)(e) of the 1998 Actby having wrongfully and intentionally tampered or interfered with the WAMSdevice fitted to pump station 46. That the device was interfered with by way ofa carefully crafted bridging device being fitted to its electrical systemleading is clear. This was done within the pump-station which was locked and towhich only the appellants had access. The irresistible inference is that theappellants were directly responsible for the installation of the bridgingdevice to enable them to run the pump without the WAMS recording the amount ofwater being abstracted. The only real defence to the charge offered by theappellants in the appeal was that they could not be charged under s 151 of the1998 Act. But, for the reasons already given, there is no merit in thatdefence. Again, I have no difficulty in concluding that the appellants werecorrectly convicted on this charge.

 

[32]     The charge against the appellants in tocount 4 was that they had contravened s 151(1)(j) of the 1998 Act by unlawfullyabstracting water from the Lomati River at both pump-stations 46 and 46.1. Theessence of an offence under s 151(1)(g) is an act ‘which detrimentally affectsor is likely to affect a water resource’. It is clear that the appellantspumped quantities of water from the Lomati River, which is a ‘water resource’as defined, at both those pump stations for which they did not account to thecomplainant. This would have occurred whenever water was abstracted from pumpstation 46.1 (which was not fitted with a WAMS) and when the water abstractedfrom pump-station 46 was not recorded by its WAMS due to the meter having beencut out of the electrical system by the unauthorised bridge.

 

[33]     As the complainant was charged with theadministration of the water in the river and obliged to supervise and regulateits use, the appellants’ actions would clearly either have detrimentallyaffected the river or have been likely to have done so. I therefore have nodifficulty in finding that the appellants were correctly convicted on count 4as well.

 

[34]     I turn now to the question of sentence.At the outset, I shall deal with count 1 ie the count of fraud. For purposes ofsentence, the trial court took this conviction together with the conviction oftheft on count 2 and imposed a fine of R30 000 or 18 months’ imprisonmentwholly suspended for five years on certain conditions. Of course, theappellants are now to be sentenced merely for the single count of fraud.Nevertheless, the offence is a severe one, relating as it does to a scarcenatural resource. In these circumstances I am of the view that it would beappropriate to sentence each appellant to a fine of R20 000 or 12 months’imprisonment but to suspend the sentence in its entirety for five years oncondition that he is not convicted of fraud committed during this period ofsuspension for which he is sentenced to imprisonment without the option of afine.

 

[35]     The court a quo took both counts 3 and4 together for the purposes of sentence, and sentenced each appellant to a fineof R5 000 to be paid to the complainant within 30 days or six months’imprisonment. Although the appellants appealed against both the amount theywere ordered to pay as well as the length of the period of imprisonment imposedas an alternative, they were, if anything, leniently treated and I see noreason to interfere. However, the condition that the amount of R5 000 be paidto the complainant is inappropriate. Not only does the complainant possibly notstill exist, but effectively the court imposed a compensatory order in respectof which the procedures, required by s 152 of the 1998 Act and s 300 of theCriminal Procedure Act 51 of 1977, were not followed. The parties thereforeagreed that this court should alter the sentence to reflect the amount as afine payable to the state.

 

[36]     In the result, I order as follows:

 

1.      Theappeal against the appellants’ convictions on counts 3 and 4 is dismissed.

2.      Theappeal against the sentence imposed in respect counts 3 and 4 is upheld and thesentence altered as set out below.      

3.      Therespondent’s cross-appeal in regard to count 1 (fraud) is upheld and the highcourt’s order upholding the appellants’ appeal against their conviction on thatcount is set aside.

4.      Therespondent’s cross-appeal in regard to count 2 (theft) is dismissed.

5.      Theorder of the high court is altered to read as follows:

‘(a) The appeal in respect of the first appellant’sconviction on counts 2, 5, 6 and 7 and the second appellant’s conviction oncounts 2, 5 and 6 is upheld and such convictions and the sentences imposed inrespect thereof are set aside.

(b) The appeal in respect of the appellants’ convictionson counts 1, 3 and 4 is dismissed.

(c) In respect of their conviction on count 1 (fraud)each appellant is sentenced to a fine of R20 000 or 12 months’ imprisonment,wholly suspended for four years on condition he is not convicted of fraud committedduring the period of suspension and for which he is sentenced to imprisonmentwithout the option of a fine.

(d) The appeal against the sentence imposed in respectof counts 3 and 4 is upheld, the sentence is set aside and (both counts beingtaken together for purposes of sentence) replaced in the case of each appellantwith a fine of R5 000 or six months’ imprisonment.’

 

 

 

 

________________

L E LEACH

ACTING JUDGE OF APPEAL

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES:

 

COUNSEL FOR APPELLANTS: J Nel

INSTRUCTED BY:              Coert Jordaan Attorneys, Nelspruit

CORRESPONDENT:             Giorgien Gerber Attorneys, Bloemfontein

 

COUNSEL FOR RESPONDENT: L Kok

INSTRUCTED BY:                           Directorof Public Prosecutions, Pretoria

CORRESPONDENT:                      Directorof Public Prosecutions, Bloemfontein

 

 

 



[1] The full name is ‘Dadelvlak 506 JU’.

[2] Proclamation 286, 1969 published in GG2551 of 31 October 1969.

[3] An acronym for ‘Water AdministrationMonitoring System’.

[4] The water bailiff.

[5] Section 81.

[6] Section 83.

[7] Section 89(2).

[8] Section 95(b).

[9] Section 9(1).

[10] Sections 71 to 77.

[11] Section 79.

[12] Section 89.

[13] Defined as the Minister of Water Affairs and Forestry.

[14] Section 151(1)(a) as read with s 151(2).

[15] Section 1.

[16] See the explanatory note to Chapter 7 of the 1998 Act.

[17] See the explanatory note to Chapter 8 of the 1998 Act.

[18] See s 1(4) of the 1998 Act.

[19] Eg R v Sacks 1943 AD413 at 428 and R v Mzwakala 1957(4) SA 273 (A) at 279B-C.

[20] See eg J A C ThomasTextbook of Roman Law (1976) at 129.

[21] Justinian Institutes 2.1.1 and Lawsa(1st re-issue) vol 30 par 358.

[22] Lawsa op cit.

[23] J Burchell Principles of Criminal Law 3 ed (2005) at 167.

[24] See para 9 above.