REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case Number : 548 / 04
In the matter between
MAURICE ALPHONSE JACQUESSON APP ELLANT
and
MINISTER OF FINANCE RESPONDENT
Coram : HARMS, STREICHER, MTHIYANE, LEWIS et PONNAN JJA
Date of hearing : 4 NOVEMBER 2005
Date of delivery : 16 NOVEMBER 2005
SUMMARY
Condictio sine causa – moneys declared forfeit to th e State: on the facts, not
affected by the grant of amnest y in terms of s 20(1) of the Promotion of
National Unity and Reconciliation Act 34 of 1995.
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
2
PONNAN JA
[1] The issue in this appeal is w hether, by virtue of the amnesty
granted to him on 10 May 2001 in term s of s 20(1) of the Promotion of
National Unity and Reconciliation Act 34 of 1995 (‘the Act’), the appellant
is entitled to repayment from the respondent (the Minister of Finance) of
certain funds that were declared forf eit to the State on 4 March 1994 in
terms of Regulation 22B of the E xchange Control Regulations (‘the
ECR’).1
[2] In chronological sequence the undisputed facts are:
(a) During 1958 the appellant's father started a family business known
as Jacques Film Distributors ('JF D') in Johannesburg. Subsequent to
the death of his father the appellant t ook over all of the assets of the
business, assumed responsibility for all of its lia bilities and ultimately
became its sole proprietor.
(b) On 21 September 1987 the Exc hange Control Department of the
South African Reserve Bank inst ructed Standard Bank to block the
accounts of JFD. Standard Bank confirmed having done so on 29
September 1987.
1 Made under s 9 of the Currency and Exchanges Act 9 of 1933. The Regulations are published in
Government Gazette Number R1111 of 1 December 1961.
3
(c) On 22 January 1988 the appellant was arrested and indicted
before Didcott J in the Durban and C oast Local Division of the then
Supreme Court on a total of 3 255 charges.
(d) On 26 January 1988, four days after th e appellant's arrest, the
Deputy Governor of the South African Reserve Bank ordered attachment
in terms of Regulations 1, 22A, 22C , 22D and 22E of the ECR of all
funds standing to the credi t of JFD which at that stage totalled R1 252
648.75.
(e) On 3 February 1988 those f unds were transferred to the
Corporation for Public Deposits, a jurist ic person established in terms of
s 2 of the Corporation for Public Deposits Act 46 of 1984.
(f) On 17 September 1992 the appel lant was convicted on 1 058
counts of fraud (being all of the main charges) and sentenced to
imprisonment for a term of seven years.
(g) On 1 December 1992, just over two months after the appellant's
conviction, the Senior Deputy Go vernor of the Reserve Bank
despatched a letter in terms of Regulation 22B to the appellant (‘the audi
letter’). There was no response to the audi letter.
(h) On 1 March 1994 the funds together with all the interest that had
accrued thereon was declared forfeit to the State. By that stage the
amount had grown to R2 861 651. The order of forfeiture was published
in Government Gazette Number 15529 on 4 March 1994. On 7 April
4
1994 the funds were deposited into th e State Revenue Fund in terms of
Regulation 22B of the ECR.
(i) On 2 June 1994 and whilst the appellant was still incarcerated, he,
together with five other applican ts, launched an application for the
setting aside of the notice of forfei ture and the release of the forfeited
moneys. On 12 July 1994 three of the six applican ts were ordered by
the Pretoria High Court to furnish security. On 15 February 1995 the
application was withdrawn and payment of the respondents’ costs
tendered.
(j) On 5 November 1994 the appella nt was released from prison
under correctional supervision.
(k) On 20 December 1996 the appella nt made application for amnesty
in terms of s18 of the Act.
(l) On 21 November 1997 the applicant launched an application (‘the
second application’) to secure repaym ent of the forfeited funds. This
application was opposed. On 19 March 1999 Mynhardt J dismissed the
second application on a point in limin e, namely that the appellant’s claim
had become prescribed by virtue of the Prescription Act No 68 of 1969.
(m) On 10 May 2001 the appellant was granted amnesty in terms of
s 20(1) of the Act in respect of
5
' .... all offences and delicts resulting from the export to t he United Kingdom of
capital in contravention of the South African Exchange Control Laws, committed
during or about the period 1982 to 1987'.
[3] Following upon the grant of amnesty to him, the appellant sought
in the application, which is the subject of the present appeal, an order
directing the respondent to pay to him the amount of R2 861 651 as also
interest and costs. The applicati on was dismissed by Mynhardt J in the
Pretoria High Court and with leave of the learned judge the matter is
before this court on appeal.
[4] The appellant was party to a sys tematic series of frauds which,
according to the Reserve Bank, resulted in R103 260 576 leaving the
country illegally under the false and dishonest guise that it was for the
purchase of films when in fact it was neither for the purchase of films nor
for any other legitimate purpose. By the end of the appellant's criminal
trial, according to Didcott J:
'It had become common cause that a fraudul ent scheme had been put into operation
for the illegal exportation from South Africa to the United Kingdom of huge amounts
of money.'
[5] Count 3 255 in the indictment concerned a contravention of
Regulation 3(1)(c) read with Regulations 1 and 22 of the ECR. It alleged
that the appellant had unlawfully an d without permission of the Treasury
6
made payments to a person resident outside the Republic of South
Africa. Of that charge Didcott J stated:
'Lastly, we have count 3255, an alleged contravention of t he exchange control
regulations, a single count with its own single alternativ e. This count and its own
alternative were cast in the indictment as an alternative to counts 1 to 1057 taken
together and read as a whole. In other words, the cont ravention of the exchange
control regulations was not al leged as an alternative to eac h of the main counts 1 to
1057. The result was that the State did not seek a conviction under the exchange
control regulations on any individual o ccasion covered by counts 1 to 1057 which
failed to produce a conviction for fraud. It sought a conviction on count 3255 only in
the event of an acquittal of al l of counts 1 to 105 7. By the stage of argument not
even that was, in the event, sought. It is an element of the charges brought under
count 3255 that money was exported without the permission of the Treasury or
anyone authorised by the Treasury. All the money which wa s exported in this case
was exported with the permissi on of one or other bank acti ng as an agent of the
Treasury. True, the permission was said to have been fra udulently obtained. If the
accused is proved to have obtained such permission fraudulently, he will be guilty on
the count of fraud. If that is not proved, however, it is not proved for the purpose of
this count either.
In the end therefore the entir e case revolves around counts 1 to 1057, which are all
the same, each relating to a particular instance or occasion.'
[6] The audi letter, which I set out in some detail, states:
'3. On 22 September 1992 Mr Maurice Alphonse Jacquesson was sentenced to
seven years imprisonment in the Supreme Court in Durban after conviction on 1 058
7
counts of fraud committed over the period 1985 to 1987 in that he made certain
misrepresentations which enabled him to transfer R103 260 576 in foreign currency
out of the Republic of South Africa in contravention of the exchange control
regulations, more fully set forth in paragraph 4 below.
4. As referred to in paragraph 3 above t he following contraventions of the
Exchange Control Regulatio ns have been committed or I, on reasonable grounds,
suspect that the following contraventions of the Exchange Contro l Regulations have
been committed, namely: ...
7. The purpose of this letter is, therefore, in co mpliance with the audi alterem
partem rule, to invite you, which I hereby do, to make representations to me –
7.1 In connection with the possibility that some or all of the money described in
paragraph 5 above together with interest ea rned thereon, may be forfeited to the
State and disposed of in the manner envisaged in paragraph 6 above; and/or
7.2 As to why some or all of the mone y described in paragraph 5 above, together
with interest earned thereon should not be fo rfeited to the State and be disposed of
in the manner envisaged in paragraph 6 above. ... '
[7] The relevant provisions of s 20 of the Act read:
'(7)(a) No person who has been granted amnes ty in respect of an act, omission or
offence shall be crimina lly or civilly liable in respect of such act, omission or offence
and no body or organisation or the State s hall be liable, and no person shall be
vicariously liable, for any such act, omission or offence.
(10) Where any person has been convicted of any offence constituted by an act or
omission associated with a political objective in respect of which amnesty has been
granted in terms of this Act, any entry or re cord of the conviction shall be deemed to
be expunged from all official documents or records and the conviction shall for all
8
purposes, including the applicat ion of any Act of Parliam ent or any other law, be
deemed not to have taken place: Provid ed that the Committee may recommend to
the authority concerned the taki ng of such measures as it may deem necessary for
the protection of the safety of the public.'
[8] The appellant's entitlement to repayment of the moneys derived,
so it is asserted, from the condictio sine causa. Without attempting to
define its ambit, it is available to a claimant, it would seem, seeking to
recover money or property that had been transferred in t erms of a valid
causa that has since fallen away (see B & H Engineering v First National
Bank of SA Ltd 1995 (2) SA 279 (A) at 284G – 285C; 9 Lawsa (2ed)
para 220). Logically the first issue to be resolved therefore is whether
the causa has indeed fallen away. The order of forfeiture issued in terms
of Regulation 22B of the ECR. Regulation 22B provides:
‘… the Treasury may issue an or der in writing in which it forfeits to the State any
money or goods referred to in paragraph (a), (b) or (c) of Regulation 22A(1)…’.
It is not clear from the order of forf eiture itself which of sub-paragraphs
(a), (b) or (c) underpinned the fo rfeiture. It is to either (a)(i) or (a)(ii) that
we must look, we were told by coun sel. To the extent here relevant,
Regulations 22A(1)(a)(i) and (ii) provide:
'(i) any money or goods,…, in respect of which a contravention of any provision of
these regulations has been committed or in respect of which an act or omission has
been committed which the Treasury on reasonab le grounds suspects to constitute
any such contravention, or, …
9
(ii) any money or goods, notwithstanding the person in whose possession it is –
(aa) which the Treasury on reasonable grounds suspects to be involved in a
contravention of any provision of t hese regulations or in a failure to
comply with any such provision, or which the Treasury on reasonable
grounds suspects to be involved in any act or omission which the
Treasury so suspects to constitu te a contravention of any such
provision or a failure to comply with any such provision …'
[9] The Regulations in question do not contemplate a criminal
conviction or for that matter even a cr iminal prosecution as a necessary
prerequisite to forfeiture. Whilst it may well be desirable for a criminal
conviction to precede a forfeiture, a valid forfeit ure is not dependent
upon a criminal conviction or a crimi nal prosecution. That much was
conceded by counsel for the appellant.
[10] For a valid attachment all that is envisaged by the Regulations is
either a contravention or a susp icion on reasonable grounds that a
contravention of any provision of the Regulations has been committed.
Criminal charges and a criminal sancti on may follow the contravention.
That will depend in the main on whether the contravention complained of
constitutes a criminal offence. If a criminal prosecution follows, the
Treasury may delay its decision on forfei ture until finalisation of the trial.
Then again it may not. The wrong env isaged by the Regulations is a
contravention or suspected contravention of the Regulations not a
10
criminal conviction. That wrong ma y be followed by either criminal or
civil sanctions. The question in truth that confronts the decision-maker is
thus not whether there is a criminal conviction, but rather whether there
has been a contravention or suspected contravention of the Regulations.
If there has been such a contraventi on or suspected contravention the
Treasury may, in the exercise of its discretion, act.
[11] The appellant was convicted of 1 058 counts of fraud, not the
alternative charge of contravening the ECR. Those convictions related
to moneys that had alr eady left the country. P recisely why the funds
standing to the credit of JDR were a ttached does not emerge with any
clarity on the papers. Two possibilit ies come to mind: First, the moneys
attached were connected to some ot her contravention of the ECR not
covered by the indictment befor e Didcott J; and, secondly, the
attachment and subsequent forf eiture was unlawful and invalid at
inception, inasmuch as it was effected in the erroneous belief that those
moneys were connected to contraventi ons of the ECR covered by the
indictment before Didcott J. Those two possibilities appear to be
exhaustive. Whether the forfeiture was indeed invalid at inception and
therefore impeachable on that basis need not detain us (Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222
(SCA)). Plainly on either hypothetical possibility the moneys forfeited to
11
the State were unconnected to the allegations giving rise to the
indictment before Didcott J. What is clear and follows logically on this
analysis is that the grant of amnesty and the consequent setting aside of
the conviction is wholly irrelevant to the moneys that were attached and
declared forfeit by the Treasury. It must thus follow that the condictio
fails as the appellant has failed to establish that the causa has indeed
fallen away.
[12] In my view, a further insuperable obstacle stands in the way of the
appellant. Interpreting the amnesty granted in a most liberal and
generous way, as indeed I must ( Azanian Peoples Organisation
(AZAPO) and Others v President of the Republic of South Africa and
Others 1996 (4) SA 671 (CC)), it cannot be said that its reach extends to
the forfeited moneys. The amnesty granted is in respect of all offences
and delicts resulting from the export to the United Kingdom of capital in
contravention of the South Africa n Exchange Control laws committed
during or about the period 1 982 to 1987. First, the moneys in question
were attached on 26 January 1988 - on any reckoning, outside the
amnesty period. Secondly, the forf eited moneys do not fall into that
class of capital that was exported to the United Kingdom in
contravention of this country's exchange control laws.
12
[13] It follows that the appeal must fail. In the result the appeal is
dismissed with costs, such costs to include those consequent upon the
employment of two counsel.
V M PONNAN
JUDGE OF APPEAL
CONCUR:
HARMS JA
STREICHER JA
MTHIYANE JA
LEWIS JA