S v Bennett

• Jurisdiction: South Africa
• Judge: Horn AJ
• Judgment Date: 03 December 1993
• Citation: 1994 (1) SACR 392 (C)
• Counsel: S A Majiedt for the appellant A A de Lange for the State
• Hearing Date: 03 December 1993
• Court: Cape Provincial Division

Horn AJ:

The appellant was convicted in the regional court at Wynberg on the following charges -

(a)

10 counts of fraud involving the presentation, on ten occasions over a period of just under two months in December 1990 and January 1991, of ten falsified bills of entry whereby goods were cleared without payment of duty totalling R104 000; F

(b)

10 counts of contravening s 80(1)(k) of the Customs and Excise Act 91 of 1964, in which it was alleged that in respect of the same 10 bills of entry referred to above, the appellant had given to a customs officer some R6 000 in cash to stamp the bills of entry in question with imprints of customs stamps in contravention or evasion of that Act. G

On each of the 20 counts on which the appellant was convicted, he was sentenced to 90 days imprisonment, ie a total of 1 800 days. The appellant noted an appeal against conviction and sentence and also gave notice of his intention to seek a review of the proceedings on the grounds that the H appellant -

'. . . did not have adequate/proper representation at the trial, since his counsel did not:

(a)

represent him competently and in accordance with the standard that was to be expected in a trial of the nature and complexity of the present one; I

(b)

act in accordance with his instructions as regards the admissions made at the trial, which relate to documents and/or other admissions.'

In support of the application for review, the appellant submitted an affidavit in which he made various allegations concerning his counsel's J handling of his case. Before setting out these allegations, it would be as

Horn AJ

A well to summarise the evidence led at the trial on the counts on which the appellant was convicted.

To obtain the release of goods on which duty is payable from the container depot at the Cape Town Docks, a document called a bill of entry (form B DA500) is completed by or on behalf of the importer. On the bill of entry is inserted, inter alia, the name and address of the importer; the name and address of the supplier of the goods from overseas; details of the ship on which the goods were carried; details of the goods themselves together with their value for customs purposes as well as the amount of customs duty and surcharge payable in respect of the goods in question. C Once the bill of entry has been completed, the original together with a number of copies thereof, and supporting documents such as the invoice from the supplier, are presented at Customs House. This documentation is then checked by officials in the customs department and if found to be in order, the bill of entry is stamped by the checking officer with a 'Check' D stamp. This is a round stamp approximately 2,5 cm in diameter bearing the date on which the document was checked, the initials of the checker, the words 'Doeane-Customs' just inside the upper portion of the outer circumference of the stamp and the words 'Nasien-Check' under those words. To indicate that the duty payable on the goods has been correctly calculated and paid, further stamps are imprinted on the bill of entry. E One of these is a rectangular stamp containing the words 'Aflos gemagtig-Release authorised'. Another is a printed number which is applied sequentially to each bill of entry dealt with. Yet another is a further round customs stamp but underneath the words 'Doeane-Customs', the words 'Invoer-Import' appear instead of the words 'Nasien-Check'. When the duty F is paid to the cashier, a receipt is issued. At various stages during this process, copies of the bill of entry are retained for record purposes by the officials through whose hands the documentation passes. The customs department accordingly holds copies of every sequentially numbered bill of entry which has been processed in this way and has a record of the receipt G of the duty paid in respect of the goods referred to in each bill of entry.

Once the documents have been processed as described above, a copy of the bill of entry bearing the 'Release authorised' stamp as well as the other stamps and numbers referred to, is presented to the container depot staff who, on the strength of the 'Release authorised' stamp, and the other H stamps indicating that duty has been properly calculated and paid, permit the importer to remove from the container depot the goods described on the bill of entry. Such bills of entry are retained by the container depot when the goods referred to therein are released by them to the person who presents them for the purposes of obtaining the goods from the depot. I

Mr Beets, an official of the Customs Department, testified that he recovered from the container depot each of the 10 bills of entry referred to in the charges described above.

For purposes of identification only, I refer to these bills of entry as the 'false' bills of entry. An examination of these 10 false bills of entry shows that each of them bears the appropriate stamps except that J instead of one

Horn AJ

A of the round stamps bearing the words 'Nasien-Check' and the other bearing the words 'Invoer-Import', both of them bear the words 'Invoer-Import'. The words in question are not printed in large letters and one has to scrutinise the document fairly carefully before this can be noticed. The significance of this feature will soon be apparent. Each of the false B bills of entry related to the importation of goods by Danziger Brothers, Cape Town.

Mr Beets went on to testify that there should have been, among the records held by the customs department (if they had been properly processed with C duty having been paid) copies of the false bills of entry, as well as a record of the duty concerned having been paid. No such copies or records of the duty having been paid could, however, be traced within the department. What he did find, however, was ten other bills of entry, each bearing the same number and date as the 'Invoer-Import' stamp on the false bills of entry. These other bills of entry related, however, to totally D different goods imported by a different importer. From this it was immediately apparent that there had been a duplication of the numbering of each of the 10 false bills of entry. The inference from this is obviously that on the same day as each of the false bills of entry were stamped, another...