THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1256/2022
In the matter between:
GERHARDUS SMIT
APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Smit v The State (1256/2022) [2023] ZASCA 154 (17 November
2023)
Coram:
NICHOLLS,
MOTHLE,
MABINDLA-BOQWANA
and
MEYER JJA and KATHREE-SETILOANE AJA
Heard:
No oral hearing in terms of s 19(a) of the Superior Courts Act 10
of 2013.
Delivered:
17 November 2023
Summary:
Criminal law and procedure – fraud – whether appellant had
intent, in the form of dolus eventualis, to commit fraud – whether the appellant, as
an unrepresented accused, was given insufficient assistance by the regional court –

held – no evidence that the appellant had intent in the form of dolus eventualis at
time the agreement of sale was concluded – appellant afforded ample opportunity to
obtain legal representation by the regional court.

ORDER

On appeal from: North West Division of the High Court, Mahikeng (F M M
Snyman and S Gura JJ, sitting as court of appeal):
The appeal against conviction and sentence is upheld.
The order of the high court is replaced with the following:
‘The conviction and sentence imposed by the magistrate are set aside.’

JUDGMENT

Nicholls JA (Mothle, Mabindla-Boqwana and Meyer JJA and Kathree-
Setiloane AJA concurring):

[1] The appellant was found guilty of fraud by the Regional Court, Lichtenburg
(the regional court) and sentenced to 15 years’ imprisonment. His conviction was
upheld by the North West Division of the High Court, Mahikeng (the high court).
The appeal is with the special leave of this Court.

[2] The facts are undisputed. On 4 and 6 December 2017, the appellant, through
his business Germa Agri Boerdery, purchased cattle worth R2 078 812.80 from Chris
du Plessis (Mr du Plessis), the complainant. This was not the first time that the
appellant and Mr du Plessis had done business and all previous transactions were
concluded in a similar manner.

[3] The appellant would be given seven days within which to pay Mr Du Plessis
for the cattle, at a pre-determined price according to weight. At Mr du Plessis’s farm,
the cattle were weighed and immediately on-sold by the appellant to Grainvest,
another company, at a profit. The cattle would be loaded on to trucks belonging to
Grainvest and a copy of the weighbridge would be sent to Mr Du Plessis to indicate
how much he was owed by the appellant. Based upon the weight, an invoice would
be sent by the appellant to Grainvest who would pay within three days.

[4] On this occasion, Grainvest paid the appellant within the customary three
days. The appellant, however, did not pay Mr du Plessis within the seven days, as
agreed. Instead, the appellant loaned R1 440 000.00 to his friend, Jan Labuschagne
(Mr Labuschagne), with whom he shared business premises. No loan agreement was
entered into with Mr Labuschagne, but he promised to pay the appellant timeously
to enable him to pay Mr du Plessis. The appellant stated that he had previously
loaned money to Mr Labuschagne, which had always been repaid. The appellant
used the remaining R600 000 to buy cattle, which he then sold. This money, also,
was not allocated towards paying Mr du Plessis. Instead, according to the appellant,
it ‘disappeared into the system’.

[5] When he did not receive payment after seven days, Mr du Plessis contacted
the appellant who justified his non-payment on the basis that Grainvest had not paid
him, but would do so the following day. The appellant admitted that this was not the
truth. A day or two later, he then contacted Mr du Plessis and asked to see him. He
told Mr du Plessis that he could not repay him because the money from Grainvest
had been used to make other payments. He made a statement to the police to this
effect as well. No mention was made to the police or to Mr du Plessis of the loan to

Mr Labuschagne. To date, Mr du Plessis has been paid none of the monies owed to
him and Mr Labuschagne has since committed suicide.

[6] The appellant’s defence, throughout, was that he had no intention to defraud
Mr Du Plessis, or steal from him. He always believed that Mr Labuschagne would
pay him back, at which point he would then pay Mr du Plessis the money that was
owed to him. Unlike previous business dealings with Mr du Plessis, this was merely
a ‘transaction which did not go well’. When he entered into the agreement with
Mr du Plessis, he did not do so on the basis that he was not going to pay him. Nor
did he decide beforehand not to pay him.

[7] Both the regional court and the high court concluded that at the time of the
conclusion of the agreement of sale, the appellant had no intention of paying Mr du
Plessis. The regional court found that the appellant had dealt with Mr du Plessis’s
money ‘as if it was his’. The high court found that the intent to defraud need not be
direct or indirect but could be established by being subjectively reasonably
foreseeable. Applying the principles of dolus eventualis, the high court found that
even though the appellant may not have had the direct intention or even the indirect
intention not to pay Mr du Plessis, ‘but by acting in the manner in which he has,
giving the money to Labuschagne, the appellant has had the intent in the form of
dolus eventualis.’1

[8] The state has conceded the appeal on the basis that the proven facts do not
exclude the reasonable inference that at the time when the agreement between Mr du

1 See para 24 of the high court judgment.

Plessis and the appellant was entered into, the appellant had every intention of
paying the money owed, but what later transpired, prevented him from doing so.

[9] This is a concession well made. Fraud is the unlawful and intentional making
of a misrepresentation which causes actual or potential prejudice. In other words, the
perpetrator must have misled the victim by making a false or unlawful statement.
There is no evidence, nor was it suggested, that the appellant had any intention other
than to pay Mr du Plessis at the time that he purchased the cattle from him, nor did
he make any such representation knowing it to be false. On the totality of the
evidence the inference cannot ineluctably be drawn that the appellant had no
intention to pay the money owed by him. That he might have been reckless in loaning
the money received from Grainvest to Mr Labuschagne, cannot possibly, on the
available facts, translate into intent in the form of dolus eventualis. For these reasons,
it is plain that the state had failed to prove the intent to defraud. The appeal must
accordingly succeed.

[10] Insofar as it may have initially been submitted that the appellant, as an
unrepresented accused, was given insufficient assistance by the regional court, this
submission is without foundation. The appellant was given ample opportunity to
obtain legal representation. As the high court pointed out, the trial was postponed on
12 occasions to enable the appellant to either obtain legal representation, consult
with his legal representative or change to a different legal representative. On the day
the trial finally started, a legal representative from Legal Aid was willing and able
to proceed with the case. The appellant, however, terminated his mandate on that
very day and chose to run his own defence. Therefore, the appellant’s protestation
that he was not fit and able to cross-exam witnesses was disingenuous in the
circumstances. The record shows he was afforded a fair trial by the regional court

and was guided where necessary. It is noteworthy that the appellant himself did not
proceed with this line of argument in the heads of argument before this Court, despite
the state conceding this issue as well.

[11] In the result the following order is made:
The appeal against conviction and sentence is upheld.
The order of the high court is replaced with the following:
‘The conviction and sentence imposed by the magistrate are set aside.’

__________________________
C E HEATON NICHOLLS
JUDGE OF APPEAL

Appearances

For the appellants:

W W Gibbs
Instructed by:

Hennie van Biljon Attorneys, Litchenburg

Maree & Maree Attorneys, Mahikeng

Symington de Kok, Bloemfontein

For the respondent:

W van Biljon
Instructed by:

The Director of Public Prosecutions, Litchenburg

Savage Jooste & Adams, Mahikeng

The Deputy Director of Public Prosecutions,
Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

17 November 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Smit v The State (1256/2022) [2023] ZASCA 154 (17 November 2023)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding the appeal against the
order of the North West Division of the High Court, Mahikeng (the high court).

The appellant was convicted of fraud by the regional court and sentenced to 15 years’ imprisonment.
The high court upheld the conviction. The issues before the SCA were whether the appellant had the
intention to commit fraud in the form of dolus eventualis and whether the appellant, an unrepresented
accused, was given insufficient assistance by the Regional Court, Lichtenburg (the regional court).

The appellant purchased cattle from the complainant. As per their custom, the appellant was to pay the
complainant within seven days. The appellant immediately on-sold the cattle to another company for a
profit, but failed to pay the complainant within the agreed seven days. Instead, the appellant loaned a
substantial amount to his friend and used the rest of the money to buy more cattle, not allocating any
monies to repay the complainant. When the complainant contacted the appellant to request payment,
the appellant assured the complainant that he would pay as soon as he received payment from the
company that he had sold the cattle to. This was not the truth, the company in question had already
paid. The appellant’s friend committed suicide, as a result, the appellant was unable to pay the
complainant. The regional court found the appellant guilty on the basis that he had treated the money
as if it were his own, while the high court found that the appellant’s actions constituted an intention to
commit fraud in the form of dolus eventualis

Before the SCA, the State conceded that there was insufficient evidence to prove that the appellant had
the intention to defraud the complainant at the time that the agreement of sale was concluded. The SCA
found that although the appellant had been reckless in loaning the money received from the company
to his friend, this did not translate into intent in the form of dolus eventualis. The SCA held that the State
had failed to prove the intent to defraud. The SCA dismissed the appellant’s claim that he was not given
sufficient assistance by the regional court, as he had multiple opportunities to obtain legal
representation but chose to represent himself. The SCA upheld the appeal and made an order setting
aside the conviction and sentence.
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