The
salient facts of the case are the following.
It
is common cause in count 1, that the appellant approached the complainant who
runs CP Cunningham, a commodity broking company, for a loan of Z$950 million on
30 November 2005. The appellant was given Z$350 million against which she
issued the complainant a postdated cheque of the same amount which she averred
will be met on 5 December 2005. The cheque was dishonoured on presentation.
In
count 2, it is alleged that the appellant approached the complainant once more
for a loan of Z$270 million. She said the money was going to be paid by her
husband the following day. The complainant's husband refused to pay as he
stated that he had not given the appellant the authority or mandate to borrow
the amount as she had told the complainant.
The
appellant's defence is that she paid back the monies advanced as loans. She
stated that the money now demanded by the complainant is interest on the
amounts advanced to her. However, no record of such payment was availed during
the trial in the court a quo.
Therefore,
the question for determination in the trial court was whether in the
circumstances the offences of fraud had been committed and whether in the final
analysis the State had discharged the onus on it. In other words, whether the State
had proved beyond reasonable doubt that when the appellant made the
representations she was lying and she impliedly had no intention to keep the
promises.
The
charge in count 1 has to do with a post-dated and dishonoured cheque. It was
held in S v Tinago SC197-88 that in
such cases the state of mind of the accused at the time of the issuing is all
important. Proof of that wrongful state
of mind is not easy. It is trite that the onus is on the State to show that at
the time the appellant made the representations, she knew she was lying, that
she never, at the time when she made them, had an expectancy of being able to
honour the cheque – S v Copley 1973 (4) SA 111 (RAD). Where the accused had no
honest belief that the cheque would be met on presentation, he is guilty of
fraud – S v Jakarasi 1983 (1) ZLR 218 (S); S v Van Neikerk 1981 (3) SA 787 (T);
R v Deetlefs 1953 (1) SA 418 (AD) and R v Blackmore 1959 (4) SA 486 (FC). An
accused cannot be convicted if the evidence reveals that at the time the cheque
was drawn, he or she honestly believed that it would be met on the post date.
In
casu, the appellant took out a loan. She made out a post-dated cheque. The
complainant banked the cheque on the post-date and it was dishonoured. There
was no reason for the complainant to bank the cheque earlier than the agreed
date if she had been told that the appellant had no funds. After the cheque had
been dishonoured, the appellant approached the complainant to state that she
had a problem and asked for time to pay. As alluded to above, the question is
whether she had the potential to pay when she made out the cheque. The court a
quo arrived at a decision that the
appellant never had any expectancy to meet the post-dated cheque and did not
intended to do so.
I
agree with the said finding of the trial court……,.
Criminal
law is not there to punish people who break promises – but only those who make
promises at a time when they have no intention of performing – South African
Criminal Law and Procedure by PMA HUNT (2nd Edition by JRL Milton)…,.
In
respect of count 2, she made a representation to the complainant that she would
repay the following day with the aid of her husband. When her husband was
contacted the following day, he refused to pay as he had not given the
appellant the mandate to raise the loan in the first place.
It
is trite that fraud charges are often based on what the accused has represented
or promised ostensibly in regard to some future time. The true inquiry in such
cases is whether the accused has honesty impliedly expressed his present state
of mind in regard to the matter represented, or in regard to the promise – South
African Criminal Law and Procedure by PMA HUNT (2nd Edition by JRL
Milton)…,.; S v Harper 1981 (2) SA
638 (DC)….,.; S v Copley 1973 (4) SA 111 (RAD)….,.; S v Hubbard A40-75 and S v
Black 1975 (1) RLR 355 (G).
In casu,
the appellant obtained the loan by falsely representing that her husband had
agreed to pay the complainant the following day when he returned from his
travel. She had not spoken to her husband about the loan before she approached
the complainant stating that he had made such an undertaking. The appellant's state of mind was dishonest
when she made the promise. She knew she had no money to repay the following
day. She knew that her husband was not even aware of the presentation she was making
to the complainant. When the complainant approached her husband he revealed
that the appellant had lied about his alleged involvement. She lied in order to
defraud the complainant.
