South Africa: Supreme Court of Appeal

"... at all relevant times (they) honestly reasonably and without any negligence (Culpa) on their part believed by reason of legal advice which had been obtained that the conveyance of the sugar, the subject of the charge, was authorised by and in terms of permit OP 282006 more particularly clause (C) of the aforesaid permit." There was a similar statement made by the accused in dealing

with count 2, except that the reference was to permit OP

282017.

10

Under permit 282006 authority was granted to Longdistance Natal (Pty) Ltd (i.e. No. 1 accused) in respect of semitrailer ND 90044 "vir die vervoer soos uiteengesit in die aangehegte bylaé No. A." Similar authority was granted under permit 282017 to Longdistance (Natal) (Pty)Ltd in respect of semitrailer ND 312230. Paragraph C was common to the respective annexures. It read:

"C. Gereedskap en toerusting asook steierwerk en bekisting in gebruik vanaf een perseel na 'n ander en nie vir herverkoop nie. Binne die Republiek van Suid-Afrika."

The legal advice referred to had been obtained by No. 4 accused from a Mr Martin Stephens, who described himself as an advocate. Although he had been admitted and was previously in practice as an advocate, he had for a number of years

11

not practised as such, but acted as a consultant in road transportation matters. No. 4 accused said in his evidence that although he personally had been engaged in road transportation since 1975, and had had much to do with permits issued under the Act, law was not his field. He accordingly used to seek legal advice from Stephens, whom his companies had retained as an adviser, and in whom he had great confidence.
In January/February 1985 he sought an opinion from Stephens generally as to the ambit of paragraph C, and specifically in regard to the goods, specified in a list furnished by him, which he was interested in transporting. Stephens furnished an opinion which was put in as Ex "J" before the trial court.

In Ex "J" Stephens referred to the four items set out in paragraph C, namely, gereedskap, toerusting

12

steierwerk, and bekisting. He said that the words "in
gebruik vanaf een perseel na 'n ander en nie vir herverkoop
nie" qualified only bekisting, and not the other items.
He referred to a definition of equipment (toerusting) in
Webster's Third New International Dictionary which had been
quoted with approval by ROSE-INNES J in Trencor Services

(Pty) Ltd v Muller t/a S A Trucking 1983 (4) SA 893, (C)
at 897 F namely,

"all things used in a given work or useful

in effecting a given end

Equipment usually covers everything except personnel needed for efficient operation or service."

On the basis of this definition Stephens concluded that

" this authority (i.e. para C) grants

the consultant an extremely wide scope

in the conveyance of Goods and it virtually

13

amounts to an authority to convey all classes of Goods, except items required merely for household purposes when it is being taken to a household." Referring to No. 4's list of goods, Stephens said that "the Goods included in the annexed list are Goods of which I am of the opinion may be conveyed in terms of the authority covered by this Opinion." The list included a wide variety of articles, including tinned and bottled food, prepared foodstuffs, medicines, cosmetics and wine, beer and spirits.
No. 4 said in his evidence that when he was approached to transport a consignment of sugar, he specifically asked Stephens whether refined sugar fell under "prepared foodstuffs". Stephens told him that this was definitely so.

14

The reasoning in Ex J is a travesty, and the conclusion palpably absurd. There is no warrant for regarding the words "in gebruik vanaf een perseel na 'n ander en nie vir herverkoop nie" as qualifying only bekistinq. That can be justified neither by grammar nor by logic. In using Webster's definition of equipment, Stephens ignored the the qualifying words "used in a given work or useful in effecting a given end". And how items such as tinned and bottled food, prepared foodstuffs, medicines, cosmetics, and wine, beer and spirits could be regarded as equipment, even in the widest meaning of the word, is beyond comprehension.
In the judgment of the Transvaal Provincial Division MYBURGH A J said that in his view the tránsportation of sugar which was to be resold was so far removed from what was authorized in paragraph C of the permit that neither No. 4 nor Stephens could really have believed that it was possible.

15

He considered their evidence in this regard to be unacceptable. I am inclined to agree.
It is, however, unnecessary to go so far. Mens rea in the form of culpa is sufficient for convictions under paras (a) or (b) of s. 31(1) of the Act. No. 4 and the corporate accused were engaged in the specialised field of road transportation, which is strictly controlled by an Act of Parliament and regulations made thereunder. It was plainly their duty to take all reasonable care to acquaint themselves with what they were permitted and what they were not permitted to do. (Cf S v De Blom 1977(3) SA 513 (A) at 532 G).

The defence of the accused was that they did not know that the transportation of sugar was not authorized by the permits. No. 4 said that he took legal

16

opinion from an experienced transport consultant, whose advice he had followed with success for a number of years.
This evidence notwithstanding, it is clear in my opinion that No 4 did not take the necessary care to inform himself of what he could do under the permits concerned.

Legal advice has no magic which justifies the recipient in jettisoning his common sense. Stephens's advice was so bizarre that it must have given pause to even the most sanguine of carriers, and caused him to seek advice from another source whether, under permits for the transportation of gereedskap, toerusting, steierwerk and bekisting, he had carte blanche to convey all classes of goods, except only items required for household purposes when being taken to a household.

No. 4 had received other warning signals.

17

On various occasions (he could not say how many), his vehicles had been stopped and he had then been charged with alleged contraventions of s. 31(1) of the Act.
For example, on 20 February 1985, one of his vehicles was stopped near Winburg on the Bloemfontein road whilst conveying a load of 1150 cartons of bottled wine. He was convicted in the Bloemfontein magistrate's court. (An appeal was subsequently upheld on the ground that the State had not proved mens rea.)
Again, on 11 July 1985 (sixteen days before the offences charged) No. 4 was stopped at Pietermaritzburg whilst conveying sugar purportedly under the authority of a permit containing paragraph C.
No. 4 said when cross-examined that although he had not sought a second opinion before 26 July 1985 (the date of the contraventions charged), he did take senior

18

counsel's advice in October 1985. His reason for not seeking other advice before this was that he believed in Stephens. Six or seven previous court cases in which he had been acquitted had vindicated Stephens's opinion. It is noteworthy that No. 4 referred to no case in which Stephens's opinion on the ambit of paragraph C was approved by a court. It would seem that his previous acquittals were based on a failure by the prosecution to prove mens rea. Under cross-examination he agreed that Stephens could also make mistakes, and that it was possible that he foresaw that Stephens could possibly be mistaken, but when he was asked why it was then that he had not sought a further legal opinion he said he could give no answer.
In my opinion there is no doubt in this case that No. 4 had the requisite mens rea, and that as he was a directing mind of the corporate accused, they also

19

had mens rea.
Alleged splitting of charges.
It was argued that there was here an unlawful duplication or splitting of charges, because -

(a) The sugar conveyed (50 000 kg.) -

(i) constituted one consignment; and (ii) it was loaded in Durban and was in

transit to Witrivier when the vehicles were stopped on 26 July 1985 while travelling between Waterval-Boven and Nelspruit.

(b) The conveyances was performed at the instance
of Export Import Trading pursuant to

the sale of sugar by Huletts Refinery to Lowveld Food Distributors.

20

(c) Although the conveyance was effected in
two loads, it was in essence one transaction undertaken on one occasion with a single intent. The rule against splitting of charges is a rule of practice which has grown up over the years, and it amounts to this: where the accused has committed only one offence in substance it should not be split up and charged against him in one and the same trial as several offences. (See Ex parte Minister of Justice : In re Rex v Moseme 1936 AD 52 at 57.) Various tests have been propounded for use in applying the rule, but these cannot in the nature of things be decisive in all cases, and they should not be regarded as rules of law.
They are only useful practical aids which can be used to ascertain whether or not a single offence has been committed. In the view of VAN WYK AJA in R v Kuzwayo 1960 (1) SA 340

21.

(A) at 344 B (which has frequently been applied in this court)-

"Dit volg dus dat by die toepassing van die reël 'n mens tot 'n groot mate afhanklik is van die gesonde verstand en billikheidsgevoel van die hof."

In my view the fallacy underlying the
accused's submission is that they were not charged with the conveyance of sugar. The charges against them were that they undertook road transportation without the authority of a permit authorizing such road transportation, or alternatively that, being the holder of a permit, they undertook road transportation otherwise than in accordance with the provisions of such permit. Under the definition of "road transportation" in s. 1 of the Act is included the conveyance of goods on a public road by means of a motor vehicle for reward. On the evidence, separate goods (albeit of the same kind) were

22

conveyed for separate rewards, in separate vehicles driven
by separate drivers, and purportedly under separate permits.
On these facts, there can be no doubt that two separate offences, and not a single offence, were committed.
The point is without merit. The convictions in this case.
It was submitted on behalf of the accused that since the sugar referred to in each of the counts was conveyed by the holder of a permit, s.31(b) of the Act and not s. 31(1)(a) applied . Consequently the accused were wrongly convicted of contravening s.3l(1)(a). The point is well taken - see S v Smith 1986(3) 714 (A), a decision which had not been reported at the date on which the accusedwere convicted. It is competent, however, to substitute convictions under the alternative counts, which charged contraventions of s. 31(1)(b) (ibid, at 721 F).

23

It appears that all of the accused were convicted on both counts. This was clearly correct in the case of accused No. 1 (the transportation was performed under colour of the two permits issued to it, and it supplied semitrailer ND 90044); in the case of accused No. 2 (it supplied the two mechanical horses ND 329666 and ND 324908 and the two drivers); and in the case of accused No. 4 (whose was the mind directing the road transportation alleged in each of counts 1 and 2). In the case of accused No. 3, however, it provided only semitrailer ND 312230, which was used for the road transportation covered by count 2. There was no evidence that No. 3 participated in the performance of the motor transportation covered by count 1. No. 3 should not therefore have been found guilty on this count. The previous convictions.

No previous convictions were proved against

24

Nos. 1 and 3 accused. The magistrate held that three previous convictions had been proved against no. 2, namely, convictions in the magistrate's courts at Howick (on 30 January 1983), Estcourt (on 20 June 1985) and Bloemfontein (on 19 May 1985); and that three previous convictions had been proved against accused No 4, namely convictions in the magistrate's courts at Ladysmith (on 25 February 1980), Estcourt (on 20 June 1985) and Bloemfontein (on 19 May 1985). All of these convictions were in respect of contraventions of s. 31(1)(a) of the Act (unlawful conveyance of goods), and fines of R100.00 were imposed in each case. With the exception of the Bloemfontein conviction, all of the convictions were in pursuance of admissions of guilt. The Ladysmith conviction and the Bloemfontein convictions were admitted, but none of the other convictions was admitted by either No. 2 or No. 4, and it was accordingly incumbent on the prosecution to

25

prove them.
The Bloemfontein convictions were under appeal at the time of the trial, and counsel for the State agrees that they should not have been taken into account for the purpose of sentence in this case. (The appeal was subsequently upheld by the Orange Free State Provincial Division, which set aside the convictions and sentences.)
In the proof of previous convictions, use may be made of form SAP 69 or form J 14. Form SAP 69 is furnished by the South African Criminal Bureau and contains information derived from fingerprint records. Form J 14 is completed by the clerk of the court by which the accused was previously convicted and sets out under headings information relating to the previous convictions which has been extracted from the court records. (See J C Ferreira, Strafproses in die Laer Howe 2e uitgawe at 611-612).

26