Criminal law - Bribing officials - Contravention of
sec. 45 (1) of Local Government Ordinance 17 of 1939 (T) - Servant of
Council corruptly soliciting or receiving a fee or advantage - Effect of
section - 'Corruptly soliciting.' - Meaning of.
[zHNz]Headnote : Kopnota
B Under section 45 (1) of
the Local Government Ordinance, 17 of 1939, a servant of the Council
receives a fee or reward 'corruptly' and 'as an inducement to or in
consideration of' his acting or forbearing if he receives it knowing
that the giver has given it with the intention of inducing him to act or
forbear from acting or in consideration of his acting or forbearing to
act.
C Where a gift is
'corruptly solicited' but not received the mental element is somewhat
different. The person solicited may never form the intention of making
the gift and in such a case it is the state of mind of the person who
solicits that must be regarded. His intention is, by his solicitation,
to cause the person solicited to give him a fee or reward as an
inducement or in consideration of an act or forbearance. It D
is not enough to ask for a gift: he must ask that something be given
him as an inducement to him to act or refrain from acting or in
consideration of an act or forbearance. The request may be express, or
it may be conveyed by suggestion or even by gesture, but however it is
conveyed, the intention of the person soliciting must be to obtain
something as an inducement or consideration. E
[zCIz]Case Information
Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.
H. Colman,
for the appellant: The evidence of the complainants shows that they
paid the amount required of them on appellant's representation F
that they were required to do so by law. Appellant's intention was to
obtain the money by a false pretence. Neither appellant nor the
complainants intended to be parties to a bribe. Naidoo v Rex,
1927 S.A.L.J. 585. Sec. 45 (1) of Ord. 17 of 1939 (T) enacts a
statutory crime of bribery. To succeed the Crown must show either an
agreement to G give and receive a bribe or
some words or acts by appellant amounting to the soliciting of a bribe.
Where the transaction has been completed, as in this case, the
complainants must have committed an offence under sec. 45 (2) of the
Ordinance before it can be said that appellant is guilty under sec. 45
(1).
S. Terblanche, for the Crown.
H Cur. adv. vult.
Postea (June 23rd).
[zJDz]Judgment
RAMSBOTTOM, J.: The appellant was charged with contravening sec. 45 (1) of the Local Government Ordinance, 17 of 1939, on two
1952 (3) SA p563
RAMSBOTTOM J
counts. On the first count, the charge alleged that on 29th July, 1950, the appellant,
'being a servant of the Town Council
of Boksburg did wrongfully and unlawfully and corruptly, either for
himself or for any other person, solicit or receive or agree to receive
from persons to wit Sajoda and Betele Magwenca a fee, advantage, or
reward to wit £2 10s 0d. and £1 10s. 0d. respectively as an inducement
to or in consideration of his A doing anything
in respect of a matter of transaction in which the said Council was
concerned to wit the issue of permits to seek work issued in terms of
the regulations framed under Government Notice 1032/1949'.
The charge on the second count was in the same terms,
save that the date was 31st July, 1950, the person from whom he received
the money was B Julius Mkwenke, and the amount received was £1. The appellant was convicted on both counts.
The point taken by Mr. Colman, who appeared on behalf of the appellant, was that, accepting the evidence of the Crown witnesses as correct, the C
appellant had not committed the offences with which he was charged. The
argument was that the offence charged was that of corruptly soliciting
or receiving money 'as an inducement' to do something in respect of the
issue of permits to look for work. and that the facts proved showed that
the money had not been solicited or received as an inducement to the
appellant to do anything, but had been obtained by him from the D
complainants by a false representation, namely that, by a new law, a
fee of £2 10s. 0d. was payable in respect of the issue of a permit, the
truth being that no fee was payable. On those facts, Mr. Colman contended, the appellant could have been convicted of falsitas, or of E
theft by a false pretence, but he had not committed the offence with
which he was charged. In order to deal with this argument it is
necessary to consider both the meaning of the section under which the
appellant was charged and also the evidence.
Sec. 45 (1) of the Ordinance (so far as is material) provides that any F
servant of the Council who whether for himself or any other person
corruptly solicits or receives or agrees to receive from any other
person any fee, advantage or reward as an inducement to or in
consideration of his doing or forebearing to do anything in respect of
any matter or transaction in which the Council is concerned, shall be
guilty of an offence. To prove a charge under this section it is G
necessary for the Crown to prove that the accused, being a servant of
the Council, either solicited or received a fee or reward as an
inducement to or in consideration of his doing something or refraining
from doing something. The important words are the words 'corruptly' and
'as an inducement to or in consideration of'. If a fee or reward is
received, it must be received 'as an inducement' to the recipient to do H
or refrain from doing something, or in consideration of his doing or
refraining from doing. That imports the idea of a mental state in the
giver. A man can only receive something as an inducement to act or to
refrain from acting if it was in the mind of the giver to induce him to
act or to refrain from acting, and he can only receive something
1952 (3) SA p564
RAMSBOTTOM J'in consideration of' his acting or
forebearing to act if the giver intended the fee or reward to be in
consideration of an act or forbearance. This is clearly expressed by VAN
DEN HEEVER, J., in Rex v Sesing, 1940 OPD 78 at p. 88, where in
interpreting the word 'corruptly' in sec. 2 (a) of Act 4 of 1918 he said:
A 'A
recipient cannot induce himself to do or to refrain from doing. It seems
to me, therefore, that the Legislature could have meant nothing more
than this: If you accept knowing that the giver meant to seduce.'
I think that, although the wording of sec. 2 (a) of Act 4 of 1918 is different from that of sec. 45 (1) of the Local Government Ordinance, B
this passage is applicable to the latter section. A servant of the
Council receives a fee or reward 'corruptly' and 'as an inducement to or
in consideration of' his acting or forebearing if he receives it
knowing that the giver has given it with the intention of inducing him
to act or forbear from acting or in consideration of his acting or
forbearing to act.
C The position where a gift
is corruptly solicited but not received is rather more difficult. Here,
the mental element is somewhat different. The person solicited may never
form the intention of making the gift, and in this case it is the state
of mind of the person who solicits that D
must be regarded. His intention is, by his solicitation, to cause the
person solicited to give him a fee or reward as an inducement or in
consideration of an act or forbearance. It is not enough for him to ask
for a gift; he must ask that something be given him as an inducement to
him to act or to refrain from acting or in consideration of an act or E
forbearance. The request may be express, or it may be conveyed by
suggestion or even by gesture, but however it is conveyed, the intention
of the person soliciting must be to obtain something as an inducement
or consideration.
F If the appellant neither
solicited nor received a fee 'as an inducement' to do anything in
respect of the issue of a permit to look for work or 'in consideration
of' the issue of such permit, and if all that he did was falsely to
represent that payment of a fee was required by law, then although he
was guilty of a fraud, he did not contravene sec. 45 (1).
G This brings me to a consideration of the facts. The magistrate accepted the evidence of the witnesses for the Crown, and Mr. Colman did not challenge the correctness of the magistrate's findings.
The facts relating to the first count are as follows:
The appellant is employed by the Town Council of Boksburg as an
interpreter. His duty is H to assist the
influx control officer at the municipal native affairs department. The
influx control officer deals with applications by natives for permits to
seek employment, and the appellant assists him as an interpreter. If a
permit is granted, the appellant may prepare the permit for signature,
but he has no authority to issue a permit, and he does not recommend or
in any other way influence the issue of permits. He, naturally,
1952 (3) SA p565
RAMSBOTTOM J
comes in contact with natives who wish to obtain permits, and is able to give them advice.
On 28th July, 1950, Mamve Sajoda returned to Boksburg
after a holiday and went to the municipal native affairs office to apply
for a permit to look for work. He spoke to the appellant and told him
what he wanted. A The appellant said he would
have to bring the particulars of his pass - what he called his
'numbers'. Sajoda went to the compound where he was staying, got the
necessary particulars in writing, and returned to the office. He handed
the papers on which the particulars were written to the appellant, who
said 'he did not see the numbers'. and told Sajoda B
that he must pay him money. Sajoda asked how much money he would have
to pay, and the appellant said '£2 10s. 0.'. Sajoda said he did not have
it, and the appellant repeated that he 'did not see the numbers'. At
the native affairs office, and before he had this interview with the
appellant, Sajoda met the complainant Betele, and Sajoda and Betele C
interviewed the appellant together. Betele said that he wanted a permit
to look for work, and he, too, was told by the appellant that he must
bring £2 10s. 0d. Sajoda and Betele went away together to the compound,
and there Sajoda borrowed £2 10s. 0d., while Betele succeeded in D
borrowing only £1 10s. 0d. The next day Sajoda and Betele returned to
the office together. There they saw the appellant, who, according to
Betele, asked whether they were 'all right'. By this Betele understood
him to ask if they had brought the money and there can be no doubt that
that was what he meant. The appellant told the two complainants to wait,
E and left them: after a while he returned
and told them to go to the lavatory, where he joined them. The appellant
had with him a permit, which he handed to Sajoda against pavment of £2
10s. 0d. Betele had only 30s. and got no permit, but the appellant took
his 30s. and handed him a F note instructing
him to bring his 'numbers': the appellant told Betele that when he had
brought his 'numbers' and the remaining £1 he would get his permit. It
is not clear from the evidence how it came about. but Sajoda savs that
at the time when the monev was handed over the appellant informed him
and Betele that the monev was pavable in terms of G
a new law. Betele's evidence suggests that the representation was made
earlier. He said: 'I was not bribing the accused. He said we had to
bring monev because of the new law.' It is probable, however that both
witnesses were referring to the same occasion. It may be that they had
demurred when they were finally asked to part with their monev and had
asked why a fee was payable - as I have said, the evidence is not H clear on the point. But Mr. Terblanche,
who appeared for the Crown, conceded that the money was actually paid
over as the result of the appellant's false representation - which the
complainants believed - and I shall deal with the case on that basis.
1952 (3) SA p566
RAMSBOTTOM J
If the money was paid and received as the result of a
false representation, and not as an inducement or a consideration for an
act or forbearance, I think that Mr. Colman's argument that the appellant A
did not receive it as an inducement or in consideration of an act or
forbearance is correct. But that does not dispose of the matter. Mr. Terblanche argued that although the appellant did not receive the money in contravention of the section, he had at an earlier stage contravened the section by soliciting a fee in consideration of the issue of a B
permit. I have come to the conclusion that this argument is correct.
The appellant was charged with soliciting or receiving a fee, and if the
evidence shows a soliciting in contravention of the section, he was
properly convicted on this count. In my opinion the evidence does show
that the appellant contravened the section by soliciting a fee. C
When he told the complainants that he wanted money and when he told
Sajoda that he could not 'see his numbers', he was, I think, clearly
asking for a reward in consideration of his doing something in respect
of the issue of permits. It was the appellant's duty to hand the
'numbers' to the official who issued the passes, and he was soliciting a
D fee or reward in consideration of his doing
that act, without which the permit would not be issued; he intended the
complainants to give him money in consideration of that act. By making
that solicitation he committed the offence with which he was charged,
and the fact that, in order to get the money, he subsequently committed a
fraud does not E absolve him from guilt in
respect of the offence he had previously committed. He was therefore
properly convicted on the first count.
The evidence on the second count was that of Julius
Mkwenke. This man went to the municipal native affairs office, armed
with a pass from a prospective employer, in order to get the necessary
permit. He saw the F appellant and told him he
wanted a permit. The appellant told Julius to bring £2 10s. 0d. and he
would change that pass for him; the appellant told him he had to pay £2
10s. 0d. as the pass he had was not for Boksburg. Julius told the
appellant that he only had £1 10s. 0d., but G
the appellant said that Julius must bring £2 10s. 0d., 'as he does not
make out the passes, but must take it to the person who makes them out'.
Julius returned to the office the next day, in the hope of getting a
permit with his 30s. He again spoke to the appellant, who again 'said he
wanted £2 10s. 0d.'. Julius went away and borrowed £1. A few days later
he returned to the office and saw the appellant. Julius' evidence as to
what occurred is: 'He asked me if I had the money and I said yes, and
he H said he would make out a special permit
for £1. He told me to wait and he would call me.' The witness then went
and reported to the police and returned with a £1 note which had been
marked. On his return to the office he saw the appellant, who said 'he
was afraid of the European who was there'. In the afternoon of the same
day Julius again visited the office, and on this occasion he
1952 (3) SA p567
RAMSBOTTOM J
was attended to by the European official who made out a
permit for him. Julius' evidence as to what occurred is recorded in
these terms:
'Accused was present. He interpreted
for the European. When the European was busy writing the accused winked
at me and rubbed his thumb and forefinger together. I nodded. Accused
told me to go out and A wait outside. The European had given me the pass already. I went and waited for him outside. I did not wait long.'
The witness then described how the appellant joined
him, and asked for the money, and how he handed the appellant the marked
£1 note which led to the appellant's arrest and prosecution.
B It is not necessary to
consider whether the receiving of the money after the service had been
rendered - if any service at all was rendered - constituted a
contravention of the section; no point was made of this by Mr. Colman. It is quite clear that at the stage when the appellant told Julius that he would make out a special permit for £1 he C
not only solicited but agreed to accept a fee or reward in
contravention of the section, and therefore he was rightly convicted.
The appeal is dismissed and the convictions and sentences on both counts are confirmed.