S v JANYURE 1988 (2) ZLR 470 (SC)

Flynote

Criminal law — Sales Tax Act — Chapter 1841 — s 44- "without reasonable cause" — meaning.

Criminal procedure — charge — particulars in — failure to allege that act was done "without reasonable cause" — whether fatally defective.

Evidence — *receipt of document — extent to which receipt may be inferred from fact that document was posted. *

Headnote

The appellant, a trader, was convicted of several charges under the Sales Tax Act [Chapter 1841], the charge alleging that he had failed, for twenty-seven months, to submit sales tax returns and that he had failed to pay the estimated assessments of tax for the same period. He had applied for a certificate of registration as a registered operator in respect of a new business. A certificate was issued and it appeared from the evidence that in the ordinary course he would have received it, but he denied having done so. Not having received the certificate, he said, he did not realise that he was a registered operator. Because of that and because the projected business did not materialise, he did not submit returns nor did he pay the tax assessed on his projected turnover. ⁶

The sections of the Act creating the offences with which the appellant was charged used the phrase "without reasonable cause, the proof whereof shall be on him". However, the charges as drafted, did not include those words. On appeal, Held, that the failure to allege in the charge that the acts complained of were done "without reasonable cause, the proof shall be on him" did not render the charge defective. * In fairness to an undefended accused, though, prosecutors should include that phrase (or similar ones, such as "without lawful excuse" or "without lawful authority") so that the accused's attention may be directed to the fact that even though he may have done the thing which the Act prohibits, he may escape conviction if he proves the reasonable cause. In any event, whether the words are included in the charge or not, the judicial officer trying the case, in informing the accused of his rights, should always draw attention to the fact that he can escape conviction if he shows reasonable cause.

Held, further, that the term "just excuse" or "reasonable cause" means something less than "lawful cause" or "lawful excuse". Whether an excuse is "just" or "reasonable" is to be determined, not by the strict application of the law to the problem, but by the application of the principles of natural justice. The question whether a "reasonable cause" exists in a given case is a question of law.

Held, further, that if the appellant established that he had never received the certificate of registration and in addition did not open the premises, he would have established reasonable cause for failing to submit sales tax returns.

Held, further, that there was no direct evidence that the certificate was posted to the appellant, simply evidence that in the normal course it would have made its way to him and that the office copy remained on file. In civil cases this would create a presumption that the document had been received, but in the present case such an inference could not be drawn.

Held, further, that as the assessed tax was based on a projected turnover but the appellant's proposed business did not in the event materialise, it would be reasonable for the appellant to decline to pay the tax.