Khumalo v The South African Reserve Bank

• Jurisdiction: South Africa
• Judge: Southwood J, Murphy J, Raulinga J
• Judgment Date: 19 February 2009
• Docket Number: 50711/08
• Hearing Date: 11 February 2009
• Court: Transvaal Provincial Division
• Citation: 2009 JDR 0104 (T)

Southwood J:

[1]

This application is concerned with the validity of a Notice of Attachment ('the notice') issued by a designated official of the South African Reserve Bank ('SARB') (the first respondent) in terms of Regulation 22C(1) of the Exchange Control Regulations ('the regulations') made under section 9 of the Currency and Exchanges Act, 9 of 1933 ('the Act'). On 12 August 2008 the SARB official issued the notice and on

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Southwood J

2 September 2008 it was served on the applicants. In terms of the notice a large number of assets, mainly shares in companies controlled by the first applicant were attached, apparently with a view to declaring them forfeit in terms of Regulation 22B of the regulations. The applicants seek to have the notice set aside.

[2]

On 29 October 2008 the applicants launched an urgent application seeking a declaration that the notice is invalid, an order interdicting the SARB from implementing or giving effect to the notice and an order directing that the applicants may continue to exercise their rights of ownership in respect of the assets pending the finalisation of the application for final relief: i.e. orders declaring regulations 22B-22D unconstitutional and therefore invalid alternatively an order reviewing and setting aside the notice and ancillary relief. After papers were filed the matter came before Murphy J who, in terms of section 13(1)(b) of the Supreme Court Act, 59 of 1959, referred the matter to a full court and intimated to the parties' representatives that the full court would deal with the constitutional issues raised in the application after there had been compliance with Rule 16A of the Uniform Rules. Notice was duly given in accordance with Rule 16A and no-one has sought to be admitted as animus curiae in the application.

[3]

In the founding affidavit the applicants rely on numerous grounds for attacking the validity of the provisions of Regulations 22B-D. With specific reference to Regulation 22C(1) they contend that it is ultra

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Southwood J

vires and that the SARB's reliance on the regulation was misconceived and that the jurisdictional facts for the regulation to be utilised were not present. With regard to regulations 22B-D they contend, for many reasons, that the regulations are inconsistent with the Constitution and are therefore invalid. The parties filed heads of argument dealing with all these issues but at the hearing the argument was, for the most part, confined to whether regulation 22C(1) is ultra vires the Act and whether the applicants' application in terms of Regulation 22D would succeed for the reasons referred to. Notwithstanding the formulation of the relief in the notice of motion and the formulation of the causa in the founding affidavit the parties agreed that the relevant facts are before this court, that there are no real disputes of fact and that if the court were to uphold the applicants' contentions regarding ultra vires and/or the Regulation 22D review, the court should simply grant a final order declaring the notice invalid. That is obviously the real relief which the applicants seek in this application. In my view that is the...