S v De Castro

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Viljoen AJA and Trengove AJA
• Judgment Date: 01 December 1978
• Citation: 1979 (2) SA 1 (A)
• Hearing Date: 18 September 1978
• Court: Appellate Division

F Viljoen AJA:

With the leave of the Court a quo the appellant appeals against his conviction for contravening reg 3 (1) (d) of the Exchange Control Regulations published under Government Notice R1111 dated 1 December 1961 and against his sentence of payment of a fine of R50000 or 12 months' imprisonment, plus 12 months' imprisonment. Upon the application of the appellant the Court a quo further made, in terms of s G 317 of Act 51 of 1977, a number of special entries relating to the admissibility of certain evidence.

The appellant (as accused No 1) and two other persons, one Christos Fasouliotis (as accused No 2) and Jacob Peter Swemmer (as accused No 3), were jointly charged in the Supreme Court, Witwatersrand Local Division, H on a number of counts, but when the matter finally came to trial, Christos Fasouliotis (hereinafter referred to as Christos) had fled the country and Swemmer had suffered a heart attack. The State withdrew the charges against him and the trial proceeded against the appellant on the charges as framed against the three appellants. They were charged with having:

(1)

(main count) contravened reg 3 (1) (d) read with regs 1 and 22 of the

Viljoen AJA

Exchange Control Regulations (referred to above) and read with s 9 of Act 9 of 1933; alternatively,

(2)

(first alternative count) contravened reg 3 (1) (d) read with s 18 (2) (a) of Act 17 of 1956; alternatively,

(3)

A (second alternative count) contravened reg 2 (1) read with s 18 (2) (a) of Act 17 of 1956; alternatively,

(4)

(third alternative count) contravened reg 10 (1) (c).

It was alleged that:

"(1)

Accused No 2 at all material times acted as an agent for accused No 1 B and as an intermediary together with accused No 3 between accused No 1 and one Vivial José Rodrigues (hereinafter styled Rodrigues);

(2)

accused No 1 wanted an amount of R87 176,35 to be transferred out of the Republic of South Africa;

(3)

C accused No 3 introduced Rodrigues to accused No 2 as a person who could transfer money out of the Republic of South Africa;

(4)

Rodrigues informed accused No 2 that he could get money out of the Republic by telex through a corrupt bank clerk;

(5)

it was agreed between Rodrigues and accused Nos 2 and 3 that accused No 1 would hand a cheque in the amount of R87 176,35 to Rodrigues who D would then arrange with the bank clerk to have the money teleed to Switzerland;

(6)

for this service Rodrigues was to have received a commission of R8700 from accused No 1 and accused No 3 would have given the bank clerk E R500 in addition to the R500 to be given to her by Rodrigues;

(7)

the above commissions would have been paid by accused No 1 at the office of accused No 1 after accused No 1 had established that the money had in fact been transferred to his bank account in Switzerland. Accused Nos 2 and 3 would have accompanied Rodrigues to the office of accused No 1 for this purpose;

(8)

F accused No 1 caused a bank cheque to be drawn, payable to himself, in the amount of R87176,35 dated 15 December 1976;

(9)

on or about 15 December 1976, accused No 1, accompanied by accused No 2, met Rodrigues at the Leisk House branch of Barclays Bank and handed the said cheque to Rodrigues together with an account number G of a banking account in Switzerland;

(10)

Rodrigues proceeded to the counter of the said bank purportedly to arrange for the telexing of the money to Switzerland, whereupon he and accused Nos 1 and 2 were arrested by detectives of the South African Police.

H Now therefore:

Main count: Did the accused wrongfully and unlawfully contravene reg 3 (1) (d) of the said regulations in that upon or about 15 December 1976, and at or near Johannesburg, in the district of Johannesburg, the accused did wrongfully and unlawfully draw, or cause to be drawn, or negotiated a bill of exchange, so that a right on the part of accused No 1 or any other person to receive a payment in the Republic was created or transferred as consideration for the receiving by accused No 1 or any

Viljoen AJA

other person of a payment, or a right (whether actual or contingent), on the part of accused No 1 or any other person to receive a payment outside the Republic, to wit Switzerland;

A First alternative count:

The accused wrongfully and unlawfully conspired to contravene reg 3 (1) (d) of the regulations; in that during or before the period 1 September 1976 to 15 December 1976, and at or near Johannesburg, in the district of Johannesburg, the accused wrongfully and unlawfully conspired with each other and Rodrigues to contravene reg 3 (1) (d) of the said regulations by wrongfully and unlawfully arranging for B the drawing or negotiation of a bill of exchange, so that a right on the part of accused No 1 or any other person to receive a payment in the Republic would be created or transferred as consideration for the receiving by accused No 1 or any other person of a payment or a right C (whether actual or contingent) on the part of accused No 1 or any other person to receive a payment outside the Republic, to wit in Switzerland;

Second alternative count:

The accused wrongfully and unlawfully conspired to contravene reg 2 (1) of the regulations; in that during or before the D period 1 September 1976 to 15 December 1976, and at or near Johannesburg, in the district of Johannesburg, the accused wrongfully and unlawfully conspired with each other and Rodrigues to contravene reg 2 (1) of the regulations by wrongfully and unlawfully arranging for Rodrigues to buy on behalf of accused No 1 foreign currency to the equivalent amount of R87 E 176,35 while neither the accused nor Rodrigues was an authorised dealer, and without permission granted by the Treasury, and/or not in accordance with conditions imposed by the Treasury;

Third alternative count:

The accused wrongfully and unlawfully contravened F reg 10 (1) (c) of the regulations, or attempted to do so in contravention of s 18 (1) of Act 17 of 1956; in that upon or about 15 December 1976, and at or near Johannesburg, in the district of Johannesburg, the accused wrongfully and unlawfully entered into a transaction whereby capital, to wit R87 176,35, or any right to capital was to be exported from the G Republic, the accused not being authorised dealers and without permission granted by the Treasury and/or not in accordance with conditions imposed by the Treasury."

This was a trap case. The trap, one Vivian José Rodrigues who, in spite of his Portuguese sounding name, is apparently Afrikaans speaking, was an important witness for the State. Another witness was Mr Johannes Henoch Neethling, a civil servant in the foreign exchange control section of the H SA Reserve Bank. Besides giving evidence that none of the accused was authorised by the Treasury to deal in foreign exchange, Neethling also testified to the prejudice suffered by the State as a result of the unauthorised outflow of capital from the country and a consequent reduction of the country's capital reserves. Other witnesses for the State were two police officers attached to the Commercial Branch of the South African Police at John Vorster Square, Lieutenant Bosman and Lieutenant Esterhuizen.

Viljoen AJA

Excluding the evidence given by Neethling; the case presented by the State, can be summarised as follows:

Swemmer was a person who had on previous occasions been involved in the A illegal smuggling of money out of the country. He and Rodrigues became acquaintances. Whether Rodrigues knew about his past activities is not clear but during or about August or September 1976, while Swemmer was out on bail subsequent either to his conviction for or his arraignment on a charge of contravening the Exchange Control Regulations, he tried to B involve Rodrigues in his schemes. Rodrigues pretended to be prepared to assist him. It seems that Rodrigues brought Swemmer under the impression that he himself was a bank official and that he could smuggle money out of the country by using the services of a corrupt bank clerk. In due course C Swemmer introduced Christos to Rodrigues. It turned out that it was Christos' money which had to be smuggled out of the country.

Rodrigues, who had in the meantime informed the police of this proposed scheme and had received certain instructions from the police aimed at setting a trap for Swemmer and Christos, had a number of meetings with these two. At a certain stage, however, Swemmer informed Rodrigues that Christos had left the country with his money, but Rodrigues soon D ascertained that that was not the truth. A few days prior to 15 December 1976 Swemmer requested Rodrigues telephonically to call at his office. When he arrived there he found Christos with Swemmer. Rodrigues then learned that somebody else, simply referred to as a Portuguese gentleman, wished to send money out of the country. Swemmer had introduced Rodrigues E to Christos as a bank manager and it is to be inferred that Christos knew that the money would not be sent out of the country legally; he must have been under the impression that Rodrigues was a corrupt bank manager or official who was prepared to participate in this illegal scheme by using the facilities of his bank for this purpose.

During this discussion it was arranged that Christos and this third person F whose money was to have been transferred would meet Rodrigues at the bank on 15 December 1976. They would bring along a cheque for the amount to be transferred as well as the other person's name and the number of the account at the foreign bank to which the money was to be transferred. The amount was discussed and Rodrigues understood that the cheque would G reflect an amount in SA currency equivalent to 100 000 American dollars. This, converted into SA currency, amounted to R87 176,35. Swemmer and Christos were under the impression that the cheque would be handed...