S v Pillay

• Jurisdiction: South Africa
• Judge: Trollip JA, Kotzé JA and Diemont JA
• Judgment Date: 13 September 1977
• Citation: 1977 (4) SA 531 (A)
• Hearing Date: 22 August 1977
• Court: Appellate Division

Trollip, J.A.:

This appeal concerns sentence only.

F The appellant, aged 49 years, has successfully carried on a fairly large retail business in Pretoria for the past 18 years. Its annual net profit is about R20/30 000. At the relevant time he was having his son educated in England. He used to remit about R4 800 per annum to his banking account in London for his G maintenance and education there. Towards the end of 1974 he wanted to send an additional R30 000 over there for that alleged purpose. But he well knew that he could not do that without the necessary permission of the Treasury, which, according to what his bank told him, was unlikely to be granted. Nevertheless, so he testified, he believed that it could be done through a "foreign bank". Consequently, his friend and business associate, Maynier, asked an acquaintance, H Hess, of the Union Bank of Switzerland ("U.B.S."), whether such transfer of money could be effected. The U.B.S. is not authorised to deal in foreign currency in the Republic; in fact, it only carries on its banking business in Switzerland and is merely represented here by one Jeannerat. Hess was his deputy. The latter, in answer to Maynier's enquiry, told him that he could effect the transfer for a commission of 6 per cent but that separate cheques for the R30 000 and the commission of R1 800 had to be furnished. Maynier informed appellant accordingly.

Trollip JA

On about 30 November 1974 appellant sent Hess the two cheques A through Maynier. Appellant reflected the R30 000 in the books of account of his business as a payment for goods purchased from a local oil company. Hess pocketed the commission of R1 800 for himself. He paid the R30 000 into an account under his control and thereafter issued a cheque for this amount to a Johannesburg firm of stockbrokers. In turn the latter issued their cheque for the same amount in favour of the U.B.S. The reason for these machinations of Hess was to create the false facade that the R30 000 constituted dividends payable to B overseas investors. Such dividends were freely transferable overseas.

After that nothing happened for about three months despite appellant's efforts, through Maynier and telephone calls, to expedite the transfer. Finally, appellant himself, now thoroughly alarmed, saw Hess and aroused him to immediate action by the threat - a brutem fulmen, as the Court a quo observed - that he would otherwise "report him to the authorities". So, on 10 March 1975, Hess, purporting to C act on behalf of the U.B.S., sent the stockbrokers' cheque for R30 000 to the U.B.S.'s local bank, Volkskas Ltd. This bank is duly authorised to deal in foreign currency. A letter signed by Hess accompanied the cheque requesting that the amount be credited to the U.B.S.'s "dividend transferable account". In the letter Hess fraudently misrepresented to Volkskas Ltd. that D the money was "freely transferable anywhere in the world" as dividends payable to overseas investors. Soon thereafter Volkskas Ltd., acting on instructions of the U.B.S. in Switzerland, issued at the instance of Hess, transferred an amount of $18 382,35, being the equivalent in British currency E of the R30 000, to the appellant's London banking account. It was common cause that the transfer was effected without any Treasury permission and contrary to the Exchange Control Regulations ("the Regulations"). These Regulations were promugated in G.N. R1111 of 1 December 1961 under the Currency and Exchanges Act. 9 of 1933. I should add here that Hess's F superior, Jeannerat, was unaware of the unlawful transfer of the currency and did not authorize it.

Appellant, Maynier, and Hess were jointly prosecuted in the Witwatersrand Local Division on three counts. It was alleged that they:

(1)

contravened sec. 2 of the Prevention of Corruption Act, 6 of 1958, as amended, in that appellant and Maynier corruptly gave Hess, as the agent of the G U.B.S., and he corruptly received the R1 800 as an inducement or reward for effecting the transfer of the currency, that being an act relating to the affairs or business of his principal, the U.B.S.;

(2)

committed the fraud on Volkskas Ltd. mentioned above;

(3)

contravened reg. 3 (1) (a) of the regulations, which H inter alia forbids any person to send any foreign currency out of the Republic without the permission of the Treasury or of a person authorised by the Treasury to give such permission.

At the trial Hess pleaded guilty on all courts. THERON, J., sentenced him on count (1) to a fine of R250 or nine months' imprisonment, and on counts (2) and (3), taken together, to a fine of R4 000 or two years' imprisonment and, in addition, to three years' imprisonment conditionally suspended. Maynier pleaded guilty on counts' (1) and (3). Presumably he

Trollip JA

pleaded not guilty on count (2) - the fraud charge - and that plea was accepted. The same learned Judge sentenced him on count (1) to a fine of R1 50 or six months' imprisonment and on A count (3) to R500 or 12 months' imprisonment. Appellant pleaded not guilty on all counts. His plea on count (2) was also accepted and he was acquitted on it. At the conclusion of his trial before DE VILLIERS, J., he was convicted oh counts (1) and (3). On them, taken together, he was sentenced to two years'...