R v Kantor

• Jurisdiction: South Africa
• Judge: Beadle CJ, Macdonald AJP and Macaulay AJA
• Judgment Date: 19 November 1968
• Citation: 1969 (1) SA 457 (RA)
• Hearing Date: 19 November 1968
• Court: Appellate Division

Beadle, C.J.:

The appellant in this case was convicted in a magistrate's court on one count of exporting goods exceeding £25 in value in G contravention of sec. 19 (1) of the Exchange Control Regulations, G.N. 353 of 1965, as amended by G.N. 807 of 1965, and on a second count of unlawfully making a payment outside Rhodesia in contravention of sec. 9 (1) of the same Regulations. He now appeals against both convictions.

H The facts on the second count are accurately set out by the magistrate as follows:

'The appellant carries on business in Bulawayo as a dealer in stamps and coins under the style of 'Modern World Agencies and Stamp Centre'.

At the beginning of June, 1966 the appellant was approached by one Binda and asked if he would be interested in purchasing three sheets of faulty stamps.

Appellant was interested and communicated with one Robertson of the Robertson Stamp Co. (Pty.) Ltd., a firm carrying on the business of dealing in stamps in Johannesburg in the Republic of South Africa. Robertson was interested in purchasing these stamps and, after further correspondence had passed between him and the appellant, Robertson telegraphed appellant to the effect that he 'will

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pay £750 per sheet plus commission to you of £100 per sheet' (see exh. 17). This telegram was dated 10th June, 1966.

From this it will be seen that appellant had a firm offer from Robertson of £850 per sheet making a total of £2,550 for the three sheets.

Thereafter, on 12th June, 1966, appellant went to Johannesburg taking A the three sheets of stamps with him.

On arrival in Johannesburg, appellant went to Robertson with the stamps and Robertson, on seeing them, was satisfied as to their authenticity and paid appellant the sum of £2,250 for the three sheets of stamps which form the subject of this case. In actual fact he paid appellant a total of £3,075, but the additional payment was in respect of other transactions which have no bearing on this case.

It later became known, however, as a result of a criminal case against B Binda, that these three sheets of stamps were not in fact authentic, that is to say, they were 'clandestine' overprinted stamps because the overprinting on them had been clandestinely done with genuine type on genuine stamps, but not by Government order.

As a result it was apparent that the three sheets of stamps sold by appellant to Robertson were in actual fact valueless, or at best, worth only the face value of these stamps in each sheet which had not been overprinted.

C When this became known the contract between appellant and Robertson was cancelled and appellant undertook to refund the amount of £2,250 he had received. He has so far refunded £2,000 of the full amount.'

Sec. 19 (1) of the Regulations reads:

'Except with the permission of the Minister, and subject to the provisions of sub-sec. (4), the exportation from Rhodesia of goods of any class or description which exceed in value £25 is prohibited, unless the Controller of Customs and Excise is satisfied that -

(a)

D payment for the goods has been made to a person resident in Rhodesia in a manner specified in sub-sec. (5) or is to be so made not later than six months after the date of exportation; and

(b)

the amount of the payment that has been made or is to be made is such as to represent a return for the goods which is in all the circumstances satisfactory in the interest of Rhodesia:

Provided that the Minister may direct that, in the cases to which the direction applies, para. (a) shall have effect as if for the reference E to six months there were substituted a reference to such longer or shorter period as may be specified in the direction.'

The word 'goods' is defined in sec. 2 as follows:

''Goods' means all kinds of movable property, including animals.'

Mr. Gubbay, who appeared for the appellant, conceded that an attempt to F contravene the provisions of sec. 19 (1) was an offence, provided that the attempt was of a type where it was possible for the accused to achieve his criminal purpose. This is clearly so: see sec. 384 (1) of the Criminal Procedure and Evidence Act, Chap. 31; R v Alfred, 1966 (3) SA 701 (R). The appellant's case was that, as the stamps were in G fact less than £25 in value, it was not possible for him to achieve his criminal purpose; and Mr. Gubbay submitted that such an attempt to contravene this section was not an offence. In other words, Mr. Gubbay argued that this was one of those exceptional statutory offences where an attempt to contravene the statute was not an offence if what the accused sought to achieve was absolutely impossible of attainment.

H The law dealing with impossibility of attainment in relation to criminal attempts has been carefully set out in R v Davies and Another, 1956 (3) SA 52 (AD); and the judgment of SCHREINER, J.A., has always been accepted by this Court as being the last word on the subject. See, for example, R v Shongwe, 1965 R.L.R. 597. The passage in the judgment of SCHREINER, J.A., which is most frequently cited appears at p. 64 of the report and reads as follows:

'To sum up, then, it seems that on principle the fact that an accused's criminal purpose cannot be achieved, whether because the means are, in the existing or

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in all conceivable circumstances, inadequate, or because the object is, in the existing, or in all conceivable circumstances, unattainable, does not prevent his endeavour from amounting to an attempt.

Two cautionary observations must be made. If what the accused was aiming to achieve was not a crime an endeavour to achieve it could not, because by a mistake of law he thought that his act was criminal, constitute an attempt to commit a crime.

A Again, statutory crimes may require special consideration, for the language of statutes may convey a wide variety of legislative intentions. In general there is no reason why endeavours to commit statutory crimes should not amount to criminal attempts though such endeavours are fundamentally or absolutely unable to succeed. But the language of a particular...