S v Magidson

• Judge: Gordon J and Ackermann J
• Judgment Date: 14 May 1984
• Hearing Date: 15 March 1984
• Court: Transvaal Provincial Division

Ackermann J:

The appellant, a 41 - year-old White male (to C whom I shall refer as "the accused") was charged in the regional court at Kempton Park of a contravention of s 21 (d) read with s 21 (c) of the Reserve Bank Act 29 of 1944 ("the Act"). He pleaded not guilty but was convicted and sentenced to three months' imprisonment suspended for three years on appropriate conditions. The accused was legally represented D throughout his trial. The present appeal is against the conviction only. Section 21 (c) and (d) of the Act reads as follows:

"Any person who -

(c)

without the authority of the bank, engraves or makes upon any material whatsoever any words, figures, letters, marks, lines or devices, the print whereof resembles in whole or in part any words, figures, letters, marks, lines or devices peculiar to and used in or upon any notes of the bank; or

(d)

E without the authority of the bank, uses or knowingly has in his possession any material whatsoever upon which has been engraved or made any such words, figures, letters, marks, lines or devices;

... shall be guilty of an offence and liable on conviction -

(i)

...

(ii)

in the case of an offence referred to in paras (c) and (d), to imprisonment for a period not exceeding five years;

F ..........."

It is common cause that on 10 January 1983 the accused was found in possession of 421 identical keyrings. One such keyring was handed in as exhibit "A". The keyring consists of a metal loop on which a key can be fastened. Fixed to this metal loop G is a short linking chain at the other end of which are attached five rectangular plastic tags varying in size from a tag of approximately 58 mm by 30 mm to a tag of approximately 17 mm by 14 mm. On each of these plastic tags is reproduced on one side the face, and on the other side the back, of a South African Reserve Bank banknote. On the smallest plastic tag a former R1 note is reproduced and the R2 note, R5 note, R10 note H and R20 note are reproduced in similar fashion on the other tags in ascending order to size and value. The reproductions are in colour and are very close, if not identical, reproductions, although greatly reduced in size, of the actual banknotes they depict.

I It was conceded on appeal by Mr Witz, who appeared on behalf of the accused (and quite correctly so in my view) that the "print" of the "words, figures, letters, marks, lines or devices" appearing on the keyring tags resembled the "words, figures, letters, marks, lines and devices peculiar to and used in or upon" notes of the Reserve Bank. He contended, however, that the tags attached to the keyrings did not constitute "material" as envisaged by s 21 (c) or (d) of the Act. He

Ackermann J

submitted that the intention of the Legislature in enacting s A 21 (d), seen against the background of s 21 (a) and (c), was to prevent deception and forgery, therefore, so his argument ran, the "material" referred to in s 21 (d) (and even s 21 (c) for that matter) had to be of such a size and nature as to be likely to be mistaken for a banknote. He submitted that it was B never the intention of the Legislature that s 21 (d) should be applied to a "gimmick" such as the plastic tags in the present case.

The preamble to the Act in question states that it was enacted:

"to consolidate and amend the laws relating to the South African Reserve Bank and to make provision for matters incidental to the regulation of the monetary system of the Union".

The Act inter alia provides for the establishment and C management of the South African Reserve Bank and confers certain powers on it. In terms of s 8 (1) (a) of the Act one of the bank's powers is to

"make or cause banknotes to be made and issue banknotes".

In terms of s 10 (1)

"the bank shall have the sole right to issue banknotes in the Union".

D Section 21 (a) of the Act makes it an offence if any person

"forges, alters or unlawfully issues a note of the bank or purporting to be a note of the bank"

and s 21 (b) makes it an offence if any person

"utters, tenders or accepts any such note which is being forged, altered or unlawfully issued, knowing it to be forged, altered or unlawfully issued".

E It is of course a well-known canon of statutory construction that:

"A statute should be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant."

(The Queen v Bishop of Oxford 4 QBD at 261 per COCKBURN CJ, as quoted with approval in Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 at 436.) It F seems to me that s 21 (c) and (d) deals with entirely different matters than s 21 (a). Inherent in s 21 (a) is the idea of deception and fraud; the Oxford English Dictionary defines "forge" as

"make (money etc) in fraudulent imitation, especially write (document, signature) in order to pass it off as written by another".

Section 21 (c) and (d) is couched in the widest possible terms G and there is no suggestion in the wording of these sections that any of the acts therein described, including "possession" in terms of s 21 (d), need to be accompanied by any particular intention. On the plain grammatical wording of the sections even a single word, if the print thereof resembled that of any H word "peculiar to and used in or upon a note of the bank" would be covered by these sections. I moreover think that the unlimited ambit of the phrase "any material whatsoever" is destructive of Mr Witz' submission. It seems to me that whereas s 10 (1) of the Act confers a monopoly on the bank to issue notes, s 21 (c) and (d) grants a monopoly to the bank of the use of the style of print of the words, figures etc peculiar to I and used upon a banknote. Section 21 (c) and (d) is not in my view concerned with deception, nor with the size, form, nature or shape of the "material" upon which the offending marks appear.

I am fortified in this view by the judgment in S v White 1973 (4) SA 174 (W). In that case the accused was charged with a contravention of

Ackermann J

A s 21 (a), alternatively with a contravention of s 21 (c) of the Act. The accused had been found in possession of a large number of sheets of paper on which were reproduced parts of, or the whole of, a R10 note. The evidence of the accused, which was accepted for purposes of the judgment, was that he at no B stage had any fraudulent intent to issue these notes. He said that the reproductions had been made with the sole purpose of using them as a "gimmick" on certain advertising pamphlets which he used in his profession. The Court found as a fact that the reproductions were made on cheap paper which would on inspection, sight, touch and handling not easily mislead even an ignorant or illiterate person. The accused was acquitted of C a contravention of s 21 (a) of the Act but was convicted of a contravention of s 21 (c) thereof. The following conclusions of MARAIS J at 178A - D are in my view germane to the present enquiry:

"Op grond van hierdie gesag is ek oortuig daarvan dat die korrekte uitleg van art 21 (a) is dat, by die vervalsing, verandering of onwettige uitreik van 'n banknoot, daar 'n D bedoeling moet wees om bedrog te pleeg, en dat dit die taak van die Staat is om daardie bedoeling om te bedrieg te bewys. In hierdie bepaalde geval het die Staat dit nie bewys nie. Daar kan dus geen skuldigbevinding...