S v Temple

• Jurisdiction: South Africa
• Judge: Boshoff AJP
• Judgment Date: 06 March 1978
• Citation: 1978 (3) SA 185 (W)
• Hearing Date: 02 March 1978
• Court: Witwatersrand Local Division

Boshoff AJP:

In this matter the accused, a British subject, was charged that he on 24 May 1977 and at Johannesburg acting through officials of a company, Proud, Wild and Leitz RSA (Pty) Ltd, wrongfully and unlawfully D sent out of the Republic of South Africa foreign currency in an amount equivalent to R54 028,62 in contravention of reg 3 (1) (a) of the Exchange Control Regulations published in Government Notice R1111 dated 1 December 1961 in Government Gazette Extraordinary 123. He pleaded guilty in respect of an amount of R48 625,06. A statement of fact was handed in E in terms of s 112 of the Criminal Procedure Act 51 of 1977 and the Court also questioned the accused with reference to the alleged facts in the case in terms of the last-mentioned section in order to ascertain whether he admits the allegations in the charge to which he had pleaded guilty. The Court thereupon convicted the accused.

Evidence was led in respect of sentence and it is now the duty of the F Court to mete out punishment. In order to do so the Court has to consider such factors as the nature of the offence, the circumstances in which it was committed and the circumstances personal to the accused. The Court then has to determine a punishment that will meet the deterrent, preventive, reformative and retributive ends of criminal justice. In so G doing the Court will have regard to the fact that the punishment must not only fit the crime and the criminal but must also serve the interests of society. The crime is a very serious one and is so regarded by the lawgiver because the sentence provided by reg 22 is a maximum of five years' imprisonment or a fine of R10 000 or the value of the foreign currency involved, whichever is the greater, or both such imprisonment and fine. The offence is regarded as a serious one because it concerns foreign H currency which is the money of countries outside the Republic and is used by the Republic to enable it to continue trade and financial transactions with foreign countries. The balances held by the Republic in foreign currency are referred to as our foreign currency reserves. The Republic earns foreign currency by exporting goods and services and spends foreign currency to pay for imports from foreign countries and to pay for services rendered by foreign countries. Foreign currency is the lifeblood of any country. Without it or with a shortage of it a country cannot develop or prosper. It is therefore vitally

Boshoff AJP

necessary that the Republic should exercise control over its holdings of foreign currency.

In terms of the Exchange Control Regulations, Orders and Rules 1961, control over South African foreign currency holdings and accruals and the A spending thereof is vested in the Treasury. The regulations define the Treasury as the Minister of Finance. In terms of the regulations the Minister had appointed the South African Reserve Bank to carry out certain functions assigned to the Treasury and as such the Bank is responsible for the day-to-day administration of exchange control. The Minister has also B appointed certain banks to act as authorised dealers. This appointment gives these banks the right to buy and sell foreign currency, but only under conditions and within limits prescribed by the South African Reserve Bank. This appointment enables the banks concerned to dispose of the bulk of their customers' day-to-day commercial and financial transactions C involving foreign currency. As a developing country South Africa is a net user or spender of foreign currency. That is to say, South Africa needs more foreign currency for its development than it earns. To ensure continued growth South Africa has to supplement its earnings in foreign currency, by local borrowing from foreign countries...