S v Runds

• Jurisdiction: South Africa
• Judge: Jansen JA, Rabie JA and Corbett JA
• Judgment Date: 31 July 1978
• Citation: 1978 (4) SA 304 (A)
• Hearing Date: 08 May 1978
• Court: Appellate Division

Jansen JA:

The appellant was tried in the Witwatersrand Local Division by IRVING STEYN J on two counts: one of fraud and one of contravening (in a number of respects formulated in the alternative) the Exchange

Jansen JA

Control Regulations 1961 (as amended). He pleaded not guilty to both charges but at the end of the State's case he, without leading any evidence, tendered a plea of guilty to the second count, which plea was A then accepted by the prosecutor, as also the original plea of not guilty in respect of the first count. In the result, in view of the prosecutor's attitude, the appellant was then acquitted on the first count and convicted of contravening reg 10 (1) (c) on the second count, ie that he had entered into a "transaction whereby capital or any right to capital is directly or indirectly exported from the Republic" without permission granted by the Treasury or by an authorised dealer. Thereupon the Court B was informed that the appellant had no previous convictions and counsel for the appellant addressed the Court in mitigation of sentence, inter alia, furnishing some information in regard to the appellant's personal circumstances. The appellant was sentenced

C "to pay a fine of R10 000 or, in default thereof, 12 months' imprisonment, plus a further 12 months' imprisonment".

An application for leave to appeal against the sentence was refused by the trial Judge, but the appellant now proceeds by virtue of leave granted in terms of s 316 (8) (c) (ii) of Act 51 of 1977.

In the absence of any evidence on behalf of the appellant, the facts of D the case must be gathered from the evidence from the State, read with certain concessions made by the prosecutor and also what appears to be common cause as gathered from the plea and cross-examination. They may be summarised as follows:

(1)

Towards "the end of November or the beginning of December 1976" Mr E Morris Israel of Johannesburg, who was anxious to open a banking account in Israel, was given a telephone number and a password by an acquaintance.

(2)

Israel telephoned this number, apparently used the password and the appellant answered. He invited Israel to his house. Israel and F a friend went to see the appellant and the opening of accounts in Israel was discussed.

(3)

During the evening of 1 or 2 December 1976 the appellant came to Israel's house. Israel's son-in-law, Irwin Rudick, was present. After some small talk, the discussion

"came down to the question of his (the appellant) being able to G transmit money from South Africa to an overseas country... (he) outlined three schemes by which this could be done".

The appellant gave Rudick his telephone number and address.

(4)

The next day Rudick telephoned the appellant and, according to Rudick,

H "I arranged with him for the transmission of the sum of $25,000 to be sent to the United States".

The appellant told him

"that any amount could be transferred, even as high as a half-a-million rand".

The arrangement was that Rudick was to pay R25 000 for a "draft" of $25 000, payable in the USA. Rudick was to send it to his brother in New York for collection.

(5)

On 6 December 1976 Rudick went to see the appellant at his house, taking R25 000 with him. It then appeared that the appellant wanted R26 500 and ultimately it was agreed that he should be

Jansen JA

given R26 000. Rudick handed over the money he had with him and an additional R1 000 was paid later that day. Rudick was given a A cheque for 25 000 dollars in exchange. It was drawn by one C H Smith on the Chemical Bank New York Trust Co, payable to Estate Management (Pty) Ltd. It was dated 24 November 1976 and endorsed in blank by the payee under date 29 November 1976.

This transaction between the appellant and Rudick constitutes the B contravention of the Exchange Regulations of which the appellant was convicted.

(6)

That night Rudick telephoned his brother in New York and asked him to make enquiries about the banking account of the drawer of the cheque. He reported back that same night that the account in question had only 100 dollars standing to its credit.

(7)

C Early the next morning, 7 December 1976, Rudick went to the appellant and told him the position. The appellant then said

"it was impossible, and that there was more than adequate funds to meet this cheque four times over... that he would contact his principals and ensure that the cheque was paid".

D The appellant promised to telephone later that day, which he did. He then said

"he was leaving for overseas, but that there was no problem at all with the cheque, and that it would be paid in the United States".

Rudick thereupon posted the cheque to his brother,

"asking him to deposit the cheque on the strength of the accused's statement that it would be met".

(8)

E On or about 18 December Rudick left on vacation to St James. Whilst there he received a telegram from his brother to the effect that "the cheque had been deposited but was unpaid, due to insufficient funds". Rudick could not locate the appellant from St F James and he instructed a business associate, M R Levy, to approach the appellant and to try and recover the money. Levy saw the appellant on two occasions and spoke to him over the telephone on "two to three occasions". At one stage the appellant...