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[2012] ZASCA 102
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Minnies and Others v S (881/2011) [2012] ZASCA 102; 2012 (2) SACR 386 (SCA) (1 June 2012)
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THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
881/2011
Reportable
In
the matter between:
MARK MINNIES
…..................................................................................
First
Appellant
IEKERAAM HINI
…............................................................................
Second
Appellant
MARK ADAMS
…...................................................................................
Third
Appellant
LINFORD PILOT
…..............................................................................
Fourth
Appellant
and
THE
STATE
…..............................................................................................
Respondent
Neutral
citation:
Minnies v State
(881/2011)
[2012] ZASCA 102
(1
June 2012)
Coram:
Mthiyane DP, Leach and Tshiqi JJA and Petse and Ndita AJJA
Heard:
10 May 2012
Delivered:
1 June 2012
Summary:
Criminal law – contravention of
s
34(1)(b)
of the
South African Reserve Bank Act 90 of 1989
–
offering counterfeit money for sale (not as legal tender) to a buyer
who knew it to be counterfeit, not constituting tendering
in
contravention of
s 34(1)(b).
___________________________________________________________________
O R D E R
___________________________________________________________________
On appeal from: Western
Cape High Court, Cape Town (J H Erasmus J and Matojane AJ sitting as
court of appeal):
The appeal is upheld.
The order of the court below is set aside and in its
place is substituted the following order:
‘
(a) The appeal is allowed.
The convictions and the sentences of the appellants are
set aside.’
___________________________________________________________________
J U D G M E N T
__________________________________________________________________
LEACH JA and PETSE AJA (MTHIYANE DP,TSHIQI JA AND NDITA
AJA concurring)
[1] Arising out of events which occurred on 19 July
2006, the appellants were tried in the Specialised Commercial Crime
Court, Bellville
on a charge of unlawfully tendering counterfeit
money in contravention of
s 34(1)(
b
)
of the South African Reserve Bank Act 90 of 1989 (‘the Act’).
They were convicted as charged and sentenced to various
terms of
imprisonment. The appellants appealed against both their convictions
and sentences to the Western Cape High Court, Cape
Town. The appeal
was dismissed but, with leave of the high court, the appellants
appeal now to this court against their convictions
only.
[2] The State’s case on the relevant facts,
accepted by the trial court, is the stuff of a low grade Hollywood
thriller. It
may be summarised as follows. The principal state
witness, Alfred Robert Laidlaw, was an acquaintance of the first
appellant whom
he had not seen for many years; the first appellant
contacted Laidlaw and told him that he was looking for a buyer for
counterfeit
money; this led to a meeting between Laidlaw and the
first, third and fourth appellants on 12 July 2006 during which
Laidlaw was
shown a counterfeit bank note; an offer was made to sell
a large quantity of similar counterfeit bank notes at 50% of their
face
value; Laidlaw thereafter contacted the police who decided to
set a trap; pursuant thereto to at midday on 19 July 2006 Laidlaw
proceeded to the parking lot of the Good Hope Centre in Cape Town
accompanied by a police agent who was posing as a potential
purchaser; they met the four appellants who showed them a sports bag
containing a considerable number of R100 counterfeit notes;
at the
time a number of other policemen were lurking nearby ready to pounce
as soon as the transaction was concluded; however at
the moment
critique the appellants saw a nearby Metro police motor vehicle,
panicked and took flight, speeding away from the scene
in one of the
two motor vehicles they had used to come to the scene; the police
pursued them; a high speed car chase took place
through the streets
of the city until they eventually forced the appellants to stop and
arrested them
[3] It is apparent from this that the counterfeit
banknotes which the appellants were wishing to sell were not handed
over to Laidlaw
and his companion but had merely been offered to
them.
The State however contended that this was
sufficient to constitute an offence under s 34(1)(
b
)
of the Act which provides that any person who ‘utters, tenders
or accepts any . . . note . . . which has been forged, altered
or
unlawfully issued, knowing it to be forged, altered or unlawfully
issued’ commits an offence. Consequently the State alleged
the
following in the charge sheet:
‘
That
the accused are guilty of the crime of contravening the provisions of
section 34(1)(b) read with
section 1
of the
South African Reserve
Bank Act 90 of 1989
and further read with section 2 of the Prevention
of Counterfeiting of Currency Act 16 of 1965─
TENDERING OF COUNTERFEIT MONEY
In that on or about 19/07/2006
and at or near Cape Town in the regional division of the Cape, the
accused did unlawfully tender,
accept or utter any notes or coins to
Alfred Robert Laidlaw which had been forged, altered or unlawfully
issued, knowing it to
have been forged, altered or unlawfully issued,
to wit 3 648 x R100 RSA notes.’
[4] This charge was poorly drawn. As the State’s
case related solely to counterfeit banknotes, the reference in the
charge
to coins was of no relevance. By the same token, reference to
s 2 of the Prevention of Counterfeiting of Currency Act 16 of 965
was
also misplaced. As appears from s 1 thereof, that Act does not apply
to banknotes allegedly issued under the
South African Reserve Bank
Act 90 of 1989
. Moreover, the allegations that the accused unlawfully
accepted or uttered notes to Laidlaw are irrelevant as the State has
never
contended that the appellants were guilty of uttering or
accepting.
[5] Be that as it may, the parties were agreed that the
charge should be construed as merely alleging that the appellants had
unlawfully
tendered counterfeit banknotes in contravention of
s
34(1)(
b
) despite the
evidence clearly establishing that when the offer to sell the
counterfeit money in question was made and the money
shown to Laidlaw
and his companion, all concerned knew that the banknotes were
counterfeit and not genuine.
[6] The following issues were argued before us during
the hearing of the appeal:
(a) whether in the legal and factual context of this
case the word ‘tender’ should be construed as synonymous
with the
word ‘utter’; (b) whether the court below erred
in holding that a conviction of ‘tendering’ counterfeit
notes was permissible despite the absence of evidence of an intention
on the part of the appellants to offer or pass off the same
as
genuine notes; (c) whether in any event the court below erred in
relying on the evidence of Laidlaw who was not only a single
incriminating witness but also whose evidence was fraught with
contradictions and inconsistencies which detracted from its
truthfulness
and reliability; (d) whether the court below should have
drawn an adverse inference against the State consequent upon its
failure
to call the witness David to corroborate Laidlaw’s
testimony. From what appears below, it is unnecessary to decide all
these
issues.
[7] The cardinal legal issue to determine is whether
offering to sell the counterfeit banknotes in these circumstances
amounted
to an unlawful ‘tendering’ as envisaged by the
section. The reason why the trial court concluded that an unlawful
tender
of the counterfeit notes had taken place is not clear.
However, in dismissing the appellants’ appeal, the high court
accepted
the correctness of the decision in
S
v Modisakeng
1998 (1) SACR 278
(T). In that
matter the appellant had
handed a counterfeit
banknote to a police trap who had expressed interest in purchasing
forged currency. He did so in order to allow
the trap to sample the
forgeries he had for sale. The court held that because the trap had
known that the note was forged, the
appellant had not committed the
offence of uttering. It went on to conclude that the intention of the
legislature was to cast the
net as widely as possible in
s 34(1)(
b
)
and that, as ‘tendering’ as envisaged by the section must
be taken as something different from ‘uttering’,
the word
‘tender’ should be construed as embracing the appellant’s
actions in handing over the note despite both
he and the trap knowing
that it was false.
[8] In dismissing the appellants’ appeal, the high
court accepted the correctness of the
Modisakeng
decision. On a similar process of reasoning it concluded
that the appellants’ offer to sell counterfeit money to Laidlaw
and
his companion amounted to a tender as envisaged by the section,
despite the relevant parties being aware that the money that was
being offered for sale was counterfeit. The correctness of this
decision was at the core of the debate in this court.
[9] In attempting to support the reasoning of the
judgment in
Modisakeng
,
counsel for the State argued that it was necessary to read the words
‘utters’, ‘tenders or accepts’ in
34(1)(
b
)
disjunctively and to thereby ascribe a different meaning to each.
Accordingly, while accepting that a crime of uttering in the
context
of counterfeit banknotes connotes intentionally passing off the false
notes by representing them as genuine to the actual
potential
prejudice of another
1
- and that for this reason the appellants’ actions
fell short of establishing an uttering
2
- it was contended that this was not necessarily the
case with tendering.
[10] There is a close relationship between uttering and
tendering. Indeed in many instances the act of uttering will involve
the
tender of money. Thus the learned authors of
South
African Criminal Law and Procedure
Vol 3
3
in referring to uttering or otherwise dealing in
counterfeit forgeries, state:
4
‘
. . .
that an uttering involves a parting with (money) or an offering of
it. In this sense an uttering would include a tendering.
Nevertheless
the words ‘uttering’ and ‘tendering’ should
be read disjunctively, mainly it seems, to obviate
difficulties where
the accused does not specifically tender counterfeit money in payment
of goods but rather passes a counterfeit
coin in return for good coin
tendered to him.’
As support for this latter contention, the learned
authers refer to
R v Franks
5
where the accused tendered a genuine coin and on
receiving a genuine coin as change, by sleight of hand substituted a
counterfeit
coin which he then returned, claiming that it was
counterfeit, and demanding a genuine coin. On being given a further
genuine coin
he again substituted a counterfeit coin which he again
returned. He was found to have uttered counterfeit coins.
[11] Bearing in mind the close relationship between
uttering on the one hand and tendering on the other, there seems to
be no reason
for the legislature to have intended to draw any
material distinction between the two in respect of the criminal
intent required
to commit the offence. This is especially so as,
similar to uttering, in the context of currency the ordinary use of
the word ‘tender’
is to offer money in payment. Indeed,
and significantly, the legislature in the Act referred to banknotes
as ‘legal tender’
– see eg s 34(2)(
c
).
But more importantly, s 17(1) of the Act provides that a tender of a
banknote ‘shall be a legal tender of payment of an
amount equal
to the amount specified on the note’. There is no reason to
draw any distinction between a tender as envisaged
in this section
and a tender envisaged in s 34(1)(
b
).
Accordingly tender in the latter section must be construed as an
action whereby counterfeit money is offered as genuine currency.
That is the clear meaning of the section.
[12] In the light of this conclusion, the fact that all
relevant parties in the present case were aware that the appellants
were
attempting to sell counterfeit money is fatal to the charge
levied against them. There was no use or passing off of the banknotes
as if they were genuine and therefore no ‘tendering’ of
the counterfeit notes – and on that issue, the judgment
in
Modisakeng
was wrongly
decided
.
As there was
no unlawful tender as envisaged by s 34(1)(
b
),
the appellants ought not to have been convicted on the charge on
which they were arraigned and their appeal must succeed.
[13] In closing, we wish to add that the appellants
appear clearly to have been involved in counterfeiting activities. It
is a matter
of both surprise and concern that they were not, at the
very least in the alternative, charged with the commission of some
other
statutory offence. Whether the prosecution was remiss or not
is, however, not the question that has to be answered in this case.
[14] The following order is made:
The appeal is upheld.
The order of the court below is set aside and in its
place is substituted the following order:
‘
(a) The appeal is allowed.
(b) The convictions and the sentences of the appellants
are set aside.’
______________________
L E Leach
Judge of Appeal
____________________
X M Petse
Acting Judge of Appeal
APPEARANCES:
For Appellant: J van der Berg
Instructed by:
A K Kajee & Associates, Cravenby
Webbers Attorneys, Bloemfontein
For Respondent: E van Zyl (with her S Liedeman)
Instructed by:
The Director of Public Prosecutions,
Cape Town
The Director of Public Prosecutions,
Bloemfontein
1
Compare
Snyman
Criminal Law
5
th
Edition 543.
2
Cf
R v Toni
1949
(1) SA 109
(A) at 113 and
Kolia v Rex
1937 NPD 105.
3
Milton
& Cowling
South African Criminal Law and Procedure
Vol 3.
4
Para
A2-16.
5
R
v Franks
(1794) 2 Leach 644.