Action Engineering and Fencing (Pty) Ltd v Moyses NO and Others

• Jurisdiction: South Africa
• Judge: Prinsloo AJ
• Judgment Date: 16 June 2003
• Counsel: J M Barnard for the applicant. H J De Wet for the second respondent. No appearances for the first and third respondents.
• Hearing Date: 16 June 2003
• Citation: 2004 (5) SA 399 (T)
• Court: Transvaal Provincial Division
• Docket Number: 14136/2002

Prinsloo AJ:

[1] This is a review application in terms of Rule 53 of the Uniform Rules of Court. I

[2] Mr Barnard appeared for the applicant and Mr De Wet appeared for the second respondent.

[3] To describe the nature of the relief sought, it is convenient to quote the prayers set out in the notice of motion: J

Prinsloo AJ

'1.

That the decision of the first respondent on 24 April 2002 to declare the amount of R704 680 forfeited to the State in A terms of the provisions of s 35(1)(a) of the Criminal Procedure Act 51 of 1977, as amended, is reviewed and set aside;

2.

The decision as to the possible forfeiture of the amount of R704 680 is referred to the third respondent to be decided in terms of the provisions of reg 3(8) of the Exchange Control Regulations 1961 as amended; B

3.

Alternatively to prayer 2 above referring the matter back to the first respondent to decide the issue in view of the Exchange Control Regulations;

4.

The second respondent is ordered to pay the costs hereof;

5.

Further and/or alternative relief.' C

[4] During the hearing, it became apparent that the notice of motion had to be amended due to patent errors. In prayer 2, the initial reference was to reg 3(5) and I have quoted the correct reference. In prayer 4, the prayer, erroneously, was for the first respondent to pay the costs. This has also been corrected, as it was done by way of an application for amendment during the hearing. As to the last-mentioned subject, I deem it appropriate to mention that para 3.4 D of the founding affidavit reads as follows:

'3.4

The second and third respondents are joined in this matter solely for any interest they might have and is (sic) no order sought against them.' E

[5] In the founding affidavit, the sole director of the applicant company alleges that the applicant has been in business for more than 15 years in the engineering field. The applicant is also involved in the scrap metal business and in this capacity also operates in South Africa and Mozambique, bearing in mind that the principal place of business of the applicant is in Bulawayo, Zimbabwe. F

In December 2001, the general manager of the scrap division of the applicant instructed an employee, Mr Savious Muleya, to deposit an amount of R710 000 on behalf of the applicant into the account of Telly Access Global Corporation (Pty) Ltd at ABSA Bank, Messina (now known as Musina but the original description will be used as it was done during the proceedings), Limpopo Province. Before Mr Muleya G (hereinafter called Savious) could deposit the money, he was arrested in the bank by members of the South African Police Service on, inter alia, a suspected charge of transgression of reg 3(1)(b)bis of the Exchange Control Regulations as promulgated by Government Notice R1111 of 1 December 1961 as H amended. Savious, ultimately, on the advice of his legal representative, pleaded guilty to contravening reg 3(1)(b)bis (supra) and he was duly convicted.

[6] According to the applicant's director, a letter was addressed to the third respondent on 2 April 2002, making representations for the moneys to be refunded to the applicant. The I letter was addressed to the Department of Finance by the applicant's attorney of record and it reads as follows:

'Ons tree hierin op namens ons kliënt Action Engineering op wie se instruksies ons hierdie skrywe aan u rig. J

Prinsloo AJ

Ons instruksies is dat 'n werknemer van ons kliënt, ene S Muleya, geld op hulle instruksies ontvang het te Messina met die opdrag om die A bedrag van R710 000 in te betaal in 'n rekening te ABSA Bank.

Die geld is verdien deur ons kliënt deur middel van verkope van skrootmetaal en dryf ons kliënt handel in skrootmetaal in die Republiek. Hierby aangeheg vind u fakture uitgemaak deur ons kliënt aan Lenkas Metals, wat duidelik daarop dui dat ons kliënt inderdaad handel dryf en 'n inkomste verdien in die Republiek van Suid-Afrika. B

Mnr S Muleya is op 17 Desember 2001 gearresteer te Messina en is aangekla vir die betweerde oortreding van reg 3 van die Divisie Beheer Regulasies. Die Staat beweer dat die betrokke bedrag van R710 000 vanaf Zimbabwe die Republiek ingebring is.

Ons instruksies is dat ons kliënt die eienaar is van die fondse wat tans deur die Staat inbetaal is by die Reserwe Bank en dat ons kliënt C verlang dat die bedrag aan hulle terugbetaal moet word. Ons vertrou dat u die aangeleentheid sal ondersoek en ontvang ons graag u terugvoering in die verband.'

According to the applicant, no reply was received from the third respondent. An allegation, somewhat vague, is also made that the applicant's attorney was informed that an application for forfeiture of the funds would be brought in court on 24 April 2002 and that D it was mentioned to the counsel representing the second respondent that forfeiture should be dealt with in terms of the Exchange Control Regulations. Afterwards, it transpired that the forfeiture was ordered in terms of s 35(1)(a) of the Criminal Procedure Act. E

[7] The following review grounds are relied upon by the applicant:

1.

The first respondent made the order without the full facts being disclosed to him or brought to his knowledge, alternatively the first respondent failed to take the knowledge into account in making the order; F

2.

The first respondent failed to take the provisions of the Exchange Control Regulations into account and did not apply his mind to the circumstances of the matter;

3.

The first respondent should have obtained the comments of the third respondent before making the order; G

4.

Because Savious was found guilty of contravention of reg 3(1)(b)bis of the Exchange Control Regulations, the first respondent should have ordered that the forfeiture should be dealt with by the third respondent in terms of reg 3.

5.

The first respondent should have applied his mind to the following before making the order: H

5.1

The area of exchange control is a specialised field with specific reasons for certain provisions. This field and the nuances in its application clearly falls within the expert knowledge of the third respondent. I

5.2

The third respondent has a wide discretion in dealing with the funds which is more beneficial to any person affected by a forfeiture order. The third respondent, in the exercise of his discretion, is obliged to take into account a wide range of factors and circumstances. This falls outside the scope and authority of the first respondent. J

Prinsloo AJ

5.3

The third respondent, due to the specialised field involved, is the more appropriate authority to make a decision as to A the forfeiture of the funds and has a specific statutory discretion which he is obliged to exercise.

5.4

It is trite law that, where legislation exists that deals specifically with a matter, that legislation finds application in preference to legislation of a more general nature. B

6.

The first respondent erred in fact and in law by declaring the funds forfeited to the State in terms of s 35(1)(a) of the Criminal Procedure Act and should have ordered forfeiture in terms of the Exchange Control Regulations.

[8] The first respondent, when informed about this application, replied that he had nothing to add to the order he made in C court and that he abides by the decision of this Court.

[9] Although the notice of motion was duly served on the third respondent, it appears that he did not enter an appearance to defend the matter. D

[10] The second respondent opposed the application and I shall briefly list submissions made in the second respondent's answering affidavit which appear to be representative of the main thrust of the second respondent's case: E

1.

Significantly, and quite correctly, the second respondent points out that Savious was charged with contravention of reg 3(1)(b)bis of the Exchange Control Regulations promulgated in Government Notice R1111 as amended, and...