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1994
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[1994] ZASCA 103
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S v Selecta Sea Products (Pty) Ltd and Others (259/91) [1994] ZASCA 103 (1 September 1994)
CASE NO
: 259/91 NvH
IN THE
SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
SELECTA SEA PRODUCTS (PTY) LTD
1st Appellant
M I STANLEY
2nd Appellant
RL PENNY
3rd Appellant
PAT CHAMBERS
4th Appellant
and
THE STATE
Respondent
CORAM
: SMALBERGER, VIVIER, et HARMS, JJA
HEARD
: 23 August
1994
DELIVERED
: 1 September 1994
JUDGMENT
SMALBERGER, JA:
The first appellant ("Selecta") is a registered company which
carries on the business of processing and selling fish, including
the
2
exporting of fish and fish products. At all relevant times
the
second appellant ("Stanley") was Selecta's managing director;
the
third appellant ("Penny")'its sales manager; and the fourth
appellant
("Chambers") its factory production manager. The four
appellants
were originally charged in the regional court, Cape Town,
with 168
counts including fraud and contraventions of various
provisions of
the Sea Fisheries Act 58 of 1973, the Fishing
Industry
Development Act 86 of 1978 ("the Act") and the Exchange
Control
Regulations. At the close of the State case they were
discharged
on a large number of counts. They were ultimately
convicted on
four counts of contravening sec 23(l)(a) of the Act
read with the
relevant regulation (exporting perlemoen without a
permit - counts
124, 125, 126 and 127) and one count of attempting
to do so (count
130). Fines were imposed on the appellants on all
counts as well
as, in the case of Stanley and Penny, periods of
imprisonment which
were conditionally suspended. Their subsequent
appeals to the
3
Cape Provincial Division against their convictions
and sentences failed (save for a technical alteration to the conditions of
suspension).
They were granted leave by the court
a quo
to appeal further
to this court.
With the exception of count 130, the State case against the appellants
was based solely on circumstantial evidence. In a careful and
comprehensive
judgment the trial magistrate dealt at length with the evidence adduced at the
trial (which included a mass of documentary
evidence). No useful purpose would
be served by repeating or reviewing such evidence. It is common cause that
Selecta made use of
the facilities of Paarden Eiland Cold Storage ("PECS") for
the storage and dispatch of fish and related products for sale (whether
on the
local market or overseas). When goods were delivered by or on behalf of Selecta
a "receiving voucher" was made out by PECS
corresponding to the delivery note
which accompanied the goods. The information reflected in the receiving
4
voucher was entered weekly onto "stock sheets". Every Monday Selecta was
furnished, either by telefax or telex, with details of stocks
held on its behalf
by PECS. Whenever Selecta wanted goods dispatched on its behalf an instruction
to this effect would be given to
PECS by either telephone, telefax or telex.
When a container was loaded by PECS pursuant to such instructions details of
what was
loaded would be recorded on a "loading sheet". The information recorded
on the loading sheet would then be transposed onto an "issue
voucher" a copy of
which would be sent to Selecta to inform it of what had in fact been loaded.
Selecta's stock sheets would in due
course be adjusted accordingly.
It was incumbent upon the State to prove that the appellants knowingly
exported perlemoen, or attempted to do so. It is common cause
that Selecta did
not have a permit entitling it to export perlemoen. The magistrate's meticulous
analysis of the relevant documentation
and other evidence shows convincingly
that
5
PECS received into storage on behalf of Selecta quantities of perlemoen
from various distributors (or from Selecta itself) which were
later consigned to
Hong Kong, on the instructions of Selecta and on the occasions to which counts
124, 125, 126, 127 en 130 relate,
under the names "super kingklip" or "kingklip
fillets". To take count 127 as an example. The documentary evidence shows that
on 18
November 1987 Blue Continent Products (Pry) Ltd sold and delivered 449
boxes of abalone (another name for perlemoen) to Selecta.
The abalone was
reboxed on Selecta's premises. On the same day 449 boxes of what was described
in Selecta's delivery note as abalone
was delivered to PECS. The quantity
concerned was in due course entered on the Selecta perlemoen stock sheet. On
Selecta's instructions
the same 449 boxes were withdrawn from stock on 23
November 1987 and packed in a container which was shipped for export to Hong
Kong.
Having regard to dates and quantity it is beyond the bounds of coincidence
for these 449 boxes
6
to have been other than the ones delivered as abalone. On the loading
sheet the product was referred to as "kingklip super", but the
issue voucher
reflects it as being abalone. The perlemoen stock sheet was debited accordingly.
There is no suggestion that Selecta
ever raised any query in regard to these
entries on the issue voucher or the stock sheet. What was therefore delivered to
Selecta
as abalone and, according to the internal documentation, received by
PECS, dealt with, packed and accounted for to Selecta as such,
was exported
under the name "super kingklip". The position is essentially the same in regard
to counts 124, 125 and 126.
The crux of the appellants' defence on these counts was that the products
delivered by or on behalf of Selecta to PECS as abalone
or perlemoen for export
as super kingklip was neither of these, but in fact kingklip bladders, a product
much sought after in the
Far East for its alleged medicinal properties. This
scheme to disguise the true nature of the product was allegedly designed
to
7
mislead competitors and to prevent or limit competition in a lucrative
market. Evidence in this regard was given by Stanley and Penny
(Chambers did not
testify). Their evidence was rejected by the magistrate. He found that Stanley
was an evasive and unimpressive
witness (a finding confirmed by a reading of
Stanley's evidence). He gave comprehensive and convincing reasons for concluding
that
their evidence could not reasonably possibly be true. He has not in my view
been shown to have erred in any material respect in his
assessment of the
evidence and the probabilities, and no sufficient ground exists for interfering
with his findings.
In this regard it would be appropriate to highlight some of the relevant
considerations which the magistrate took into account. Foremost
amongst these is
the support to be found in the evidence relating to count 130. On that count it
is common cause that the container
packed by PECS on Selecta's behalf for export
to Hong Kong was intercepted before it was loaded at the Cape Town
8
harbour. An examination of its contents revealed that what
had
been consigned as 2000 kgs kingklip super was in fact
perlemoen.
The appellants contended that the perlemoen (which was
in
unmarked boxes) had been consigned for export by mistake,
the
suggestion being that PECS employees had mistakenly
loaded
perlemoen intended for up-country delivery instead of
super
kingklip intended for export. The magistrate, once again
for
cogent and unassailable reasons, found that no such mistake
had
been made. Significantly, the alleged up-country consignees of
the
perlemoen appear never to have complained about not
receiving
their orders, or having received kingklip instead! The
findings in
relation to this count go a long way to negating the
appellants'
defence on the other counts and establishing that
perlemoen was
shipped as super kingklip. Further important
considerations relate
to the inherent improbabilities and
absurdities relating to the alleged
method of disguising kingklip
bladders for export purposes as
9
something else (first as perlemoen, for which no
export permit existed, and then as super kingklip) with all the attendant
confusion
it was likely to cause; the fact that, contrary to the alleged scheme
and the need for secrecy, kingklip bladders are frequently
referred to in the
documentation in undisguised form; and inferences arising from documents
(relating to count 125) emanating from
an overseas consignee which refers to
"super kingklip (abalone)" and describe a product indicative of perlemoen, as
well as from
a letter sent by Selects to an such consignee referring to the
source of the product which strongly suggests it could only have been
perlemoen.
In the result I agree with the conclusion reached by the magistrate that
the only reasonable inference to be drawn in respect of counts
124, 125, 126 and
127 from the relevant facts and circumstances was that Selecta, to the knowledge
of Stanley, Penny and Chambers,
exported perlemoen without a permit on the
occasions to which those counts relate, and in the quantities found
10
by him, and that in respect of count 130 it attempted to do so. It is
apparent from their evidence and the documentation that Stanley
and Penny
throughout had knowledge of what was being exported. Once it was established
that perlemoen was in fact exported, and their
evidence of fish bladders being
exported in disguise rejected, the only reasonable inference is that they knew
that what was exported
was perlemoen. Chambers, the person primarily responsible
for the dispatching of products for export failed to give evidence, thus
rendering a
prima facie
case of knowledge on his part conclusive. All
three therefore took part in the commission of the offences. At the very least
it was
never established by them that they did not so participate or that they
could have prevented their commission (see sec 332(5) of
Act 51 of 1977). The
appellants were accordingly correctly convicted on the counts in
question.
I come now to the question of sentence. The total sentences
11
imposed in respect of the 6ve counts were as follows: (1) Selecta, a fine
of R22 000-00; (2) Stanley, a fine of R13 500-00 or 9
years
imprisonment plus a further 9 years imprisonment conditionally
suspended; (3) Penny, a fine of R9 000-00 or 6 years and 9 months imprisonment
plus a further 8 years and 9 months imprisonment conditionally suspended; and
(4) Stanley, a fine of R6 750-00 or 2 years and 3 months
imprisonment. In
addition the magistrate ordered the 2 000 kg of perlemoen in respect of count
130 (which had been impounded) to
be forfeited to the State.
No basis exists for interfering with any of the fines imposed, or with
the order of forfeiture. The magistrate has not been shown
to have misdirected
himself in any material respect, nor can the extent of the fines, in the light
of the penalty provisions in the
Act and the relevant factors mentioned by the
magistrate in his judgment on sentence, be considered excessive or
inappropriate.
At the hearing of the appeal the question was raised with
12
counsel whether the alternative periods of imprisonment (in the case of
Stanley, Penny and Chambers) and the suspended periods of
imprisonment (in
respect of Stanley and Penny) were not disproportionately high having regard to
the fines imposed and the seriousness
of the offences. Counsel agreed that they
were. It is necessary to maintain an equitable balance between the fines imposed
(having
regard to the amounts involved and their real value) and the
alternatives of imprisonment, both in relation to each other and as
between the
various appellants. Furthermore, should Stanley breach the conditions of
suspension he runs the risk (at least notionally)
of having a total sentence of
9 years imprisonment put into operation; in the case of Penny the period would
be 8 years and 9 months
. This constitutes on unduly high risk in the
circumstances. The lack of balance between the fines and the alternative
imprisonment,
and the excessively high suspended periods of imprisonment require
and justify correction.
13
Since the appellants were convicted and sentenced
the Act has
been repealed and replaced by the Sea Fishery Act 12 of
1988
which contains a provision (see 37(l)(a)) similar to sec
23(l)(a) of
the Act. This notwithstanding the conditions of
suspension should
still refer to the Act, being the operative
enactment in force at the |
time the sentences were originally imposed.
The following order is
made:
1)
The
appellants' appeals against their convictions are
dismissed;
2)
The appeal by
the first appellant against its sentence is
dismissed;
3)
The appeals of
the second, third and fourth appellants against their sentences succeed to the
extent that they are altered to read:
(a)
Second appellant
:
Counts 124. 125. 127 and 130
: On each count, a fine of R3 000-00
or 8 months imprisonment plus a further 8 months imprisonment suspended for 5
years on condition
that he is not convicted of a contravention of
14
sec 23(l)(a) of Act 86 of 1978, or any enactment in
substitution thereof, committed during the period of
suspension.
Count 126
: A fine of Rl 500-00 or 4 months
imprisonment plus a further 4 months imprisonment
suspended for 5 years on the same conditions as in
respect of counts 124, 125, 127 and
130.
(b)
Third appellant
:
Counts 124. 125, 127 and 130
: On each count, a fine of R2 000-00 or 6
months imprisonment plus a further 6 months imprisonment suspended for 5 years
on condition
that he is not convicted of a contravention of sec 23(l)(a) of Act
86 of 1978, or any enactment in substitution thereof, committed
during the
period of suspension.
Count 126
: A fine of Rl 000-00 or 3 months imprisonment plus a
further 3 months imprisonment suspended for 5 years on the same conditions as
in
respect of counts 124, 125, 127 and 130.
(c)
Fourth
appellant
:
Counts 124. 125. 127 and 130
: On each count, a fine
of Rl 500-00 or 4 months imprisonment.
Count
126
: A fine of R750-00 or 2 months
imprisonment.
15 4) The appeal against the order of
forfeiture is dismissed.
J W SMALBERGER JUDGE OF APPEAL
VIVIER, JA)
HARMS, JA) Concur