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less impossible, to ascertain the type of conduct which fell within it. Redress at civil law was confined to persons actually prejudiced, whereas it was not the primary function of the criminal law to satisfy wronged individuals, but rather to punish people who have transgressed defined norms. The court therefore held that the type of prejudice relied on by the State, and hitherto accepted by the courts, was not so far removed from the
52:. Millions of rands were involved, and the charges were of an intricate and complex nature. The accused contended, in the first instance, that the charge against him should be quashed, arguing that it did not comply with the provisions of section 84 of the Criminal Procedure Act, relating to the essentials of the charge. The accused furthermore contended that the common-law definition of fraud, as accepted by the courts, was
74:, the court did indeed quash an indictment without giving the State an opportunity to amend the charge or supplement the further particulars. The present court held, however, that, assuming such an approach was permissible, it should only be adopted where the indictment was so patently unsalvageable that no purpose would be served in giving the prosecutor an opportunity to cure the defects. The court held that,
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The court dealt first with the contention that the charge should be quashed for want of compliance with the Act. After analysing the charge, the court pointed out certain aspects which lacked clarity. The prosecutor conceded that the charge lacked clarity in the respects pointed out by the court, and
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The court reaffirmed that radical and sweeping changes could not be embarked upon lightly. The radical approach suggested by counsel for the accused was found to be neither necessary nor desirable. The court held that, although wide, the present definition of fraud did not make it difficult, much
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After briefly dealing with the accused's second contention, the court turned to the question regarding the constitutional validity of the common-law crime of fraud. The accused argued that the crime, as presently formulated, would punish the individual without sufficient regard to the actual
28:. It was heard in the Witwatersrand Local Division by Cloete J from 9 to 13 October 1995, with judgment handed down on 16 October. AO Cook and DN Unterhalter appeared for the accused, and ZH de Beer and H. Louw for the state. The case is especially significant for
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From this, it was argued, would flow a constitutionally consistent definition of fraud. As presently formulated, the definition thus infringed upon the accused's right to
78:, the charge was not unsalvageable and that the State should be given the opportunity to rectify the situation. The request for the quashing of the charge was dismissed.
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insofar as the courts have held that the prejudice does not have to be financial or proprietary, may be potential, and does not have to be suffered by the represent.
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requested an opportunity suitably to amend the charge. Despite this, the accused persisted in his application for the indictment to be quashed.
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of the man on the street that a reappraisal of the common-law definition of fraud was either warranted or necessary.
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that the prejudice had to have been suffered by the represent, not by third parties.
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that actual prejudice, and not merely potential prejudice, should be proved;
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and constituted an infringement of the substantive concept of a
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Friedman, the accused, was charged in the
Supreme Court with
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that the prejudice ought to have been patrimonial; and
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consequences of his or her actions. It was submitted
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177:Criminal Procedure Act 51 of 1977.
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132:South African criminal law
30:South African criminal law
220:1995 in South African law
24:is an important case in
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230:Gauteng Division cases
203:1987 (2) SA 225 (SWA).
194:1996 (1) SACR 181 (W).
98:freedom of the person
48:of stolen, unwrought
127:Law of South Africa
26:South African law
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172:Legislation
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138:References
122:Indictment
102:fair trial
163:1996 (1)
153:1987 (2)
46:smuggling
167:181 (W).
143:Case law
116:See also
64:Judgment
76:in casu
182:Notes
42:fraud
36:Facts
165:SACR
50:gold
68:In
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155:SA
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