Beardsley v Commissioner of Consumer Affairs - [2009] SASC 340

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BEARDSLEY v COMMISSIONER OF CONSUMER AFFAIRS
[2009] SASC 340
Judgment of The Honourable Chief Justice Doyle
6 November 2009
TRADE AND COMMERCE - TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION - CONSUMER PROTECTION - ACCEPTING PAYMENT WITHOUT INTENDING TO SUPPLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF LAW
Appellant charged with 10 offences against the Fair Trading Act 1988 (SA) (“FTA”) in relation to representations made in the course of conducting the business of a beauty college – Magistrate found that representations conveyed that the College was capable of issuing qualifications under the Australian Qualifications Framework, and that the elements of the offences were proved – in particular, the Magistrate found proved two counts of accepting a payment for services when intending to provide services materially different from those for which payment was received – whether the Magistrate erred in finding these two counts proved - whether the Magistrate erred in finding that defences under s 88(1) of the FTA were not made out in relation to each of the 10 counts.
HELD: appellant accepted payment in relation to services, knowing that payment was for training for a qualification that would be recognised under the AQF – appellant intended to supply training that would not lead to such a qualification – no error on the part of the Magistrate in finding two relevant counts proved - no factual basis for finding that s 88(1) defences applied in relation to any of the offences charged - Magistrate not in error in finding that defences not made out - appeal dismissed.
Fair Trading Act 1988 (SA) s 58(e), s 67(a)(ii), s 79, s 81(1), s 88(1)(a) and s 88(1)(b); Supreme Court Civil Rules 2006 (SA) r 283(1) and r 284(2)(f); Training, Skills and Development Act 2003 (SA) s 4(1), s 4(3), s 20 and s 24, referred to.
Gilmore v Poole-Blunden (1999) 74 SASR 1, considered.

BEARDSLEY v COMMISSIONER OF CONSUMER AFFAIRS
[2009] SASC 340
Magistrates Appeal: Criminal

DOYLE CJ: Mrs Beardsley was found guilty and convicted by a magistrate for offences against the Fair Trading Act 1987 (SA) (“the FTA”). The Complaint contained 12 counts in all, but the first two counts can now be put to one side. This case concerns counts 3 to 12.
Mrs Beardsley, at all relevant times, has carried on the business of providing training in what she described as “Beauty Therapy” or training as a “Beauty Specialist”. She conducts her business through a college called “Marie Beardsley College of Beauty Specialists”. I will refer to it as “the College”. The gist of a number of the counts is that Mrs Beardsley falsely represented that qualifications that could be obtained through the College, the qualifications being variously described as either a Diploma or Certificate, were “nationally recognised”. In the circumstances this was said to amount to a representation that the qualifications were issued under or pursuant to the “Australian Qualifications Framework” (“AQF”). The AQF is a statutory scheme for vocational educational training. This representation was said to give rise to offences against the FTA. The gist of the balance of the offences is that in advertisements published by Mrs Beardsley promoting the College she stated that she or the College could issue qualifications which the advertisement described using titles or descriptions similar to certain qualifications issued under or as part of the AQF. In each case it was alleged that this amounted to a false representation that the qualifications that the College issued were recognised under the AQF, or alternatively that Mrs Beardsley or the College was a registered training organisation (“RTO”) for the purposes of the AQF.
Mrs Beardsley appeals against the convictions.
As the argument on appeal unfolded, it emerged that the finding by the Magistrate that the elements of the offence were established was challenged only in relation to counts 5, 6, 7 and 8. However, I will outline the basis of the finding that the elements of each offence were made out because this provides the background to the matter next referred to.
As to all counts, the submissions on appeal challenge the finding by the Magistrate that a statutory defence provided by s 88 of the FTA was not made out. Section 88 provides:
88    Defences
(1)     Subject to subsection (3), in a prosecution for a contravention of a provision of this Act, it is a defence if the defendant establishes—
(a)     that the contravention was due to reasonable mistake; or
(b)that the contravention was due to reasonable reliance on information supplied by another person; or
(c)     that—
(i)the contravention was due to the act or default of another person, to an accident or to some other cause beyond the defendant's control; and
(ii)the defendant took reasonable precautions and exercised due diligence to avoid the contravention.
(2)     In subsection (1)(b) and (c)—
another person does not include a person who was—
(a)     a servant or agent of the defendant; or
(b)in the case of a defendant that is a body corporate, a director, servant or agent of the defendant,
at the time when the contravention occurred.
…
The Magistrate rejected a submission that, apart from the defence provided by s 88, Mrs Beardsley could rely on an honest and reasonable belief in facts which, if true, would make her conduct innocent. This was referred to in submissions as “the common law defence of honest and reasonable mistake”. As I understood the submissions on appeal, Mr M Mead (who was counsel for Mrs Beardsley at trial and on appeal), did not challenge this decision by the Magistrate.
The trial was conducted over a period of nine days. This is surprising when one finds that even in the witness box Mrs Beardsley was arguing that she was entitled to describe her qualifications as “nationally recognised”, because of her long standing good reputation in the industry, and when one bears in mind that the other main issue at trial was the meaning of printed advertisements and promotional material published by Mrs Beardsley. The explanation appears to be that before the Magistrate the defence case explored a number of peripheral or irrelevant matters at some length, and the prosecution case responded to these matters. As well, to my mind, the complaint is overloaded. Too many separate offences have been extracted from the limited relevant circumstances. I will return to this issue.
The Australian Qualifications Framework
The AQF is a scheme with a legislative basis. As I understand it, the scheme is a national one, supported by legislation in each State. At the relevant time in this State the legislation was the Training and Skills Development Act 2003 (SA) (“the TSD Act”). That Act defined the AQF as follows in s 4(1):
AQF means the policy framework entitled “Australian Qualifications Framework” that defines all qualifications recognised nationally in post-compulsory education within Australia, endorsed by the Ministerial Council on Education, Employment, Training and Youth Affairs so as to commence on 1 January 1995;
Under the AQF training is provided to persons who wish to work in a particular industry. Training is provided through a “training package” developed for a particular industry. The TSD Act defined “training package” in s 4 as follows:
training package – a training package is an integrated set of competency standards, assessment guidelines and AQF qualifications for a specific industry, industry sector or enterprise (see, also, the definition of National Training Framework);
As I understand the scheme, a training package comprises a course or series of courses accredited under s 24 of the TSD Act.
Under the AQF, training can be provided only by an RTO. An RTO is an entity that has achieved registration under s 20 of the TSD Act.
So the scheme was and is one that involves the grant of qualifications, for a particular occupation or industry, that are recognised throughout Australia because the qualifications are granted under or pursuant to the AQF, by an RTO, and require the completion of accredited courses (s 4(3) of the TSD Act) as part of a training package.
A qualification issued under the scheme by an RTO would show the national provider number of the RTO, a logo that was adopted or used as part of the AQF, and a statement that the qualification was obtained under the TSD Act.
Under the AQF, according to the Magistrate, different qualifications are established for each industry or sector. In the Vocational Education and Training Sector, the qualifications included Certificates I to IV, Diploma, Advanced Diploma, Vocational Graduation Certificate and Vocational Graduation Diploma: Commissioner for Consumer Affairs v Beardsley (unreported, AMC‑08-1085 at [42](5)).
A training package existed for the “Beauty Industry”. It was called the “National Beauty Training Package”. Under this package some or all of the abovementioned qualifications could be obtained. They were given names appropriate to the industry. For example, the qualifications under the AQF included Diploma of Beauty Therapy, Certificate III in Beauty, Certificate II in Nail Technology. These are examples only.
To acquire one of these qualifications a student had to complete a specified number of “units”. The requirement included “core units” and “elective units”. Each unit had an appropriate title and was given an identifying number.
Background
Mrs Beardsley has carried on business in the beauty industry in Australia for many years. As I understand it she carried on the business of a beauty salon and also a beauty college. She did so under the business name referred to earlier in these reasons. For a number of years the College was an RTO for the purposes of the AQF. Accordingly, through the College Mrs Beardsley was able to provide qualifications under the AQF that were, of course, recognised nationally because they were provided under the AQF. On 3 October 2001 Mrs Beardsley was refused renewal of the registration of her College as an RTO. It is common ground that thereafter the College was not an RTO and that Mrs Beardsley was not entitled to issue qualifications under or for the purposes of the AQF. There is no doubt that Mrs Beardsley was aware of this.
Mrs Beardsley was entitled to continue the business of a beauty salon and, as I understand it, to continue to provide training to persons who wished to work in the beauty industry. There appears to be no suggestion that she could not continue to conduct a business under the business name “Marie Beardsley College of Beauty Specialists”. What she could not do was represent that the College was an RTO, or represent that qualifications that the College issued were qualifications issued under the AQF.
Mrs Beardsley continued to conduct her business, and to provide training to students wishing to work in the beauty industry.
From time to time she obtained advice from Mr Heidt. He carried on a business that helped persons and entities that wished to become an RTO. His evidence to the Magistrate indicates that he was conversant with the manner in which the AQF worked. He gave some advice to Mrs Beardsley (or to her husband) from time to time about what she could or could not do after the College ceased to be an RTO.
Mr Heidt’s evidence about the advice he gave after the College ceased to be an RTO was in general terms. He said [T 501] that in the early stages after registration was refused, he had contact with Mr Beardsley about monthly, but by the time of the hearing before the Magistrate he was in contact with Mr Beardsley only two or three times a year. He said that the contact was sometimes “social contact” and sometimes related to written material that Mr Beardsley was preparing for use in connection with the College. This included “some promotional material or an advertisement”. He said on some occasions Mr Beardsley:
… was putting together some joining instructions for his students or preparing some promotional material or an advertisement and he would then describe those to me and ask my opinion as to whether he would cross the line in terms of inference of being there a representing a registered training organisation when he was not (sic).
He said that he gave such advice from time to time. When asked if he had actually seen the advertisements or brochures in question, he indicated that he had seen a brochure which had been tendered as exhibit P19 [T 502]. He did not indicate whether he had advised Mrs Beardsley in relation to the advertisements the subject of a specific count, but did say that he had seen an advertisement P4, which was similar to the advertisements AF6 (the subject of count 9 and count 10) and AF7 (the subject of count 11 and count 12). He was allowed to give some very general evidence, some of it in cross-examination, indicating that in his opinion neither AF6 nor AF7 suggested that the College was an RTO or that its qualifications were issued under the AQF.
From time to time in and after 2001 Mrs Beardsley had contact with officers of the Accreditation and Registration Council (“the ARC”). The ARC was responsible for the administration of parts of the TSD Act.
On 3 October 2001 an officer of the ARC wrote to Mrs Beardsley pointing out that as the College registration had not been renewed, she should remove from all printed material any reference to accreditation and registration by the ARC, and “all reference to nationally recognised training …”.
Mrs Beardsley continued to carry on business through the College. The Magistrate found that she believed that her training was “nationally recognised” in the beauty industry, having regard to her lengthy involvement in the industry, and the regard in which she was held: [42] (12). However, he also found that Mr Heidt never told Mrs Beardsley, or gave her specific advice, that it would be lawful for her to use the phrase “nationally recognised training” in connection with the training provided by the College.
In 2003 Mrs Beardsley was prosecuted by the Commissioner. I gather that this prosecution related to the manner in which she was describing qualifications issued by the College. In July 2003 Mrs Beardsley and Mr Beardsley signed a written assurance that they would:
… refrain from engaging in conduct which represents that we or the college have the authority to issue nationally recognised qualifications …
On this basis the prosecution was compromised. Section 79 of the FTA makes provision for the Commissioner to accept such assurances.
Conduct the subject of complaint
In January 2006 Miss Jocic, aged 20, wanted to be trained to work in the beauty industry. She said in evidence that she wanted a “nationally recognised course”, because she wanted to be able to work in other States of Australia. She also wanted a course that was recognised by CIDESCO, an industry organisation. In particular she wanted to gain the qualification “Diploma of Beauty Therapy”. After speaking to several colleges, she came to meet with Mrs Beardsley.
In late January she met with Mrs Beardsley, for the purpose of discussing with Mrs Beardsley courses provided by the College. She was given a copy of the brochure P19. She discussed the contents of the brochure with Mrs Beardsley. Mrs Beardsley said she was a member of CIDESCO. This has not been disputed. On the front of P19 appears a statement that Mrs Beardsley had been awarded “Certificate IV in Workplace Training (Category 2)” and “A Nationally Recognised Accredited Training Certificate (DETE-VEET-AQF).” These statements are accurate, to the extent that they refer to qualifications previously held by Mrs Beardsley. A page in the brochure referred to a number of qualifications issued by the College, including “Diploma of Beauty Therapy”. Each of the qualifications listed is identified in terms formerly used in the AQF scheme. The brochure also listed core and elective units that must be completed for each of the qualifications referred to. Ms Jocic said that Mrs Beardsley said the diploma was “nationally recognised”. That was important for Ms Jocic [T277-T278].
Ms Jocic signed an enrolment form and paid a deposit of $200 that day. She began her training with the College not long after, and when she began she paid a further $600.
Doubts arose in Ms Jocic’s mind as a result of information she received from the Education Department. Ms Jocic and the other students (a small number) met with Mrs Beardsley in April 2006. They asked if the college qualifications were nationally recognised. Ms Jocic said that Mrs Beardsley asserted that the College’s courses were nationally recognised, and that Mrs Beardsley became “quite angry” [T285].
These representations and the payments that they allegedly induced were the subject of a number of counts.
Two advertisements were the subject of further counts.
Mrs Beardsley arranged for an advertisement to appear in “The Advertiser” daily newspaper in Adelaide on 29 July 2006. That advertisement referred to “Marie Beardsley’s Awards”. The awards were now called, for example, “Mrs Marie Beardsley’s Advanced Diploma of Beauty Therapy”. In other words, descriptions that were used under the AQF were used, but now linked to Mrs Beardsley’s name. The advertisement also contained the following:
Marie’s diplomas & certificates are recognised and highly valued by the Beauty Industry in Australia and overseas.
On 27 January 2007 a very similar advertisement appeared in “The Advertiser”. It contained the same statement relating to the recognition of Mrs Beardsley’s “diplomas & certificates”.
During 2006 and 2007 there was a certain amount of correspondence and discussion between Mrs Beardsley and those responsible for administering the then legislation. By then the names of the organisations had changed, but there is no need to go into those details.
In January 2006 a letter was sent to Mrs Beardsley containing objections to her using “titles and codes of nationally recognised qualifications”. Mrs Beardsley was also told that she could not infer that her College was an RTO. In May 2006 another letter was sent to her calling on her to remove the reference in an advertisement in the Yellow Pages phone book to the Training Certificate IV, being the reference set out above.
I turn now to the relevant statutory provisions. Section 58(e) of the FTA provides as follows:
58     False or misleading representations
A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services—
…
(e)     represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits that they do not have; …
Section 67 of the FTA has since been amended, but at the relevant time provided as follows:
67Acceptance of payment
A person must not, in trade or commerce, accept payment or other consideration for goods or services where, at the time of the acceptance—
(a)     the person intends—
(i)not to supply the goods or services; or
(ii)to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted; or
(b)     there are reasonable grounds, of which the person is aware or ought reasonably to be aware, for believing that the person will not be able to supply the goods or services within the period specified by the person or, if no period is specified, within a reasonable time.
Finally, at the relevant times, s 81(1) of the FTA provided as follows:
81Offence
(1)     A person who acts contrary to an assurance accepted by the Commissioner is guilty of an offence.
Maximum penalty: $5,000.
…
Issues on appeal

Count 3 charged an offence against s 58(e). The charge relates to the statement made by Mrs Beardsley when she met with Ms Jocic in late January 2006. That is, the statement that her courses were “nationally recognised”. The Magistrate accepted the evidence of Ms Jocic.
The Magistrate found the charge proved. The statement by Mrs Beardsley was made when she and Ms Jocic had before them exhibit P19. This contains a reference to qualifications using titles that are or were used under the AQF. The document also uses course codes and titles taken from the National Beauty Training Package. The evidence supports a finding that although few people understand the legal underpinning of the AQF, the concept of a nationally recognised trade qualification was generally understood, and that a qualification that was nationally recognised was much more useful than one that was not. The Magistrate found that Mrs Beardsley’s statement was a representation capable of being understood by an ordinary person as meaning that her training would or could lead to the issue of a qualification that was nationally recognised under the AQF and that this was an “approval” that her courses did not have. Mrs Beardsley’s claim that her courses were nationally recognised was rightly rejected. The difference between national recognition under the AQF and a good reputation with employers is clear. As I have already noted, Mr Mead does not challenge the finding that the offence was proved.
He challenges the Magistrate’s rejection of the defence under s 88(1) of the FTA. He argues that on the basis of the evidence given by Mr Heidt, the defence was made out to the required degree.
I agree with the Magistrate that there was no evidence that the contravention was due to a reasonable mistake by Mrs Beardsley. She believed that she was entitled to describe her courses as nationally recognised. She was mistaken in that belief. In my opinion her belief was not a reasonable one. It was a wrongheaded mistake.
Nor do I agree that the evidence of Mr Heidt supports a defence based on s 88(1)(b).
In evidence he was allowed to express the opinion that the brochure, exhibit P19, did not give rise to a contravention of the FTA. I doubt whether that evidence was admissible. The prosecution case is based on what Mrs Beardsley said in the context of a reference to exhibit P19. As the Magistrate said, and I agree, there is no evidence that Mr Heidt informed or advised Mrs Beardsley or, for that matter, Mr Beardsley, that she could safely describe the College’s courses or qualifications as “nationally recognised”. Quite apart from that, the evidence of Mr Heidt was very general. His evidence supports a finding that he discussed P19 with Mr Beardsley on one occasion, or at least a document in more or less identical terms. But it is by no means clear what he said to Mr Beardsley about it. Nor is there any evidence as to the part that advice from him played when Mrs Beardsley made her representations.
I accept that as a matter of law, advice given or opinions expressed by Mr Heidt are capable of amounting to “information supplied by another person”: see Gilmore v Poole-Blunden [1999] SASC 186; (1999) 74 SASR 1 Martin J at [108]‑[110] and Olsson J at [1]. The difficulty from the point of view of the defence in this case is the generality of the evidence of Mr Heidt, and the fact that it does not relate to the statement made by Mrs Beardsley to Ms Jocic, which statement was clear enough in itself but which gained some added significance from the contents of P19. It is also apparent that Mr Heidt, in giving his evidence, spoke as someone with a detailed knowledge of the AQF and its legal basis, not from the point of view of an ordinary person.
It follows that the Magistrate did not err in rejecting the defences advanced in relation to count 3. The appeal against the conviction on that count must be dismissed.
Count 4 is a charge under s 81(1) that the same statement by Mrs Beardsley amounted to conduct contrary to the assurance that she had provided to the Commissioner. It is not disputed that the elements of the offence were established. For the reasons already given, in my opinion the defences, based on statements by Mr Heidt, are not made out.
Count 5 also is based on the same statement. The charge is that when she accepted the deposit paid by Ms Jocic, Mrs Beardsley accepted a payment for services when, at the time of acceptance, she intended to supply services materially different from those in respect of which the payment was accepted, because she intended to provide services through a College which was not an RTO and which could not issue a “nationally recognised statement of attainment”. The charge is based on s 67(a)(ii) of the FTA.
Mr Mead submits that the Magistrate erred in finding that this charge was proved. He argues that Mrs Beardsley believed that the qualifications granted by the College were nationally recognised, as the Magistrate found she did: at [76]. Accordingly, she did not intend to provide services materially different from those in respect of which payment was accepted.
I disagree. Mrs Beardsley accepted payment from Ms Jocic intending to supply services (tuition) which she knew would not lead to the grant of qualifications that were recognised under the AQF. On the Magistrate’s findings, Mrs Beardsley well knew the difference between the qualification offered by the College and a qualification under the AQF. She thought she was entitled to describe College qualifications as “nationally recognised”, but she knew the difference between the two qualifications. Ms Jocic paid for training for a qualification that was recognised under the AQF. Mrs Beardsley represented that she would provide such training. She intended to supply training that would not lead to such a qualification. The offence was proved.
The defences under s 88 fail for reasons already given. The appeal against the conviction on this count fails.
Count 6 is based on the payment of $600 that Ms Jocic made when she began to attend courses at the College. The offence charged is a breach of s 67(a)(ii) of the FTA. This count raises the same issues of law as arose in relation to count 5. For the reasons already given, the appeal against conviction is dismissed.
Count 7 is based on the statement that Mrs Beardsley made when she met with a number of students, including Ms Jocic, in April 2006. On this occasion Mrs Beardsley, in response to a challenge from Ms Jocic, insisted that the College’s qualifications were nationally recognised. Mr Mead challenges the Magistrate’s acceptance of Ms Jocic’s evidence about the meeting. Mrs Beardsley denied that it took place. The Magistrate found Ms Jocic to be a reliable witness: at [56]. He found Mrs Beardsley to be unreliable generally, and rejected her evidence when it conflicted with the evidence of Ms Jocic: at [57]. The Magistrate accepted Ms Jocic’s evidence about the meeting. Although the other students who gave evidence did not remember the meeting, none of them denied that it took place. In these circumstances, it was open to the Magistrate to accept Ms Jocic’s evidence as he did. This count raises the same issues of law as were raised by count 3. For the same reasons, I dismiss the appeal against conviction.
Count 8 is based on the same statement as the statement relied upon for count 7. Count 8 charges that by representing to Ms Jocic that the College’s qualifications were recognised nationally, Mrs Beardsley acted contrary to an assurance accepted by the Commissioner. The charge is based on s 81(1) of the FTA. The issues raised by this charge have already been canvassed in relation to count 3, count 4 and count 7. For the reasons already given, I dismiss the appeal against this conviction.
Count 9 is based on an advertisement (AF6) published in The Advertiser newspaper in July 2006. It is alleged that the advertisement represented that the College was capable of issuing statements of attainment from Certificate III to Certificate IV level under the AQF. Count 10 charges that, by causing the advertisement the subject of count 9 to be published, Mrs Beardsley acted contrary to the assurance that she had provided to the Commissioner. I will deal with these charges together.
As I have said, Mr Mead did not challenge the finding of the Magistrate that the elements of these charges had been made out. Mr Mead submits that the Magistrate erred in finding that the defence based on s 88(1)(b) was not made out. Again, Mr Mead relies on the evidence of Mr Heidt in support of the contention that Mrs Beardsley reasonably relied on information supplied to her by Mr Heidt in causing the advertisement to be published. Mr Mead’s submission is again undermined by the generality of Mr Heidt’s evidence. Mr Heidt did not give evidence as to any advice that he had provided to Mrs Beardsley, or, for that matter, Mr Beardsley, with respect to the advertisement AF6. The evidence that he gave in relation to the advertisement that had been placed in the Yellow Pages could provide some support for a finding that, in causing that advertisement to be published, Mr Beardsley had relied on Mr Heidt’s advice that the advertisement would not give rise to a breach of the FTA. It is true that that advertisement is similar to the advertisement the subject of counts 9 and 10. However, the advertisement that was published in the Yellow Pages was not identical to the advertisement the subject of counts 9 and 10. In particular, the advertisement in the Yellow Pages did not include the statement:
Marie’s diplomas & certificates are recognised and highly valued by the Beauty Industry in Australia and overseas.
The Magistrate relied on the advertisement as a whole, including this statement, in finding that the relevant counts were proved: [42](37) and [63]-[64]. There was material in the advertisement that supports the finding. On this basis alone, it follows that the defence was not made out. In any case, Mrs Beardsley did not give evidence that, in causing the advertisement to be published, she relied on information provided by Mr Heidt in connection with the advertisement published in the Yellow Pages.
Mr Mead also relies on the defence in s 88(1)(a). He argues that the contravention was due to a reasonable mistake on the part of Mrs Beardsley. What I have said about the defence in relation to count 3 applies equally here. That conclusion is fortified when regard is had to the correspondence to Mr and Mrs Beardsley from the ARC, to which the Magistrate referred at [62]. I dismiss the appeal against the convictions on these counts.
Count 11 relates to an advertisement (AF7) that was published in The Advertiser newspaper in January 2007. Count 12 charges that, by the conduct the subject of count 11, Mrs Beardsley breached the assurance that she provided to the Commissioner. These charges raise the same issues to which counts 9 and 10 give rise. For the reasons given in relation to those counts, I dismiss the appeal against the convictions on counts 11 and 12.
Overloaded complaint
To my mind, the complaint is overloaded. I do not suggest that it was not open to the Commissioner, as a matter of law, to charge the offences that he has charged. But it was not necessary to charge as many offences as were charged to identify the unlawful conduct engaged in, or to ensure that there was adequate punishment for the conduct involved. I acknowledge that it is for the prosecuting authority to decide what charges will be laid and pursued. This is not the function of the Court. But an overloaded complaint has a tendency to protract unnecessarily the hearing, if the charges are contested.
Extension of time
The Notice of Appeal includes an application for an extension of time within which to appeal: r 284(2)(f) of the Supreme Court Civil Rules 2006 (SA). The Notice of Appeal was filed 32 days after the Magistrate delivered his judgment. An appeal must be commenced 21 days after the date of the judgment the subject of the appeal: r 283(1) of the Rules. It appears that the delay was attributable to the illness of counsel. The delay was not lengthy. I extend the time for the filing of a Notice of Appeal to 31 August 2009.
Conclusion
For the reasons that I have given, I dismiss the appeal against the convictions recorded in the Magistrates Court.