REPUBLIC OF SOUTH AFRICA

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case Number  :  548 / 04

In the matter between

MAURICE ALPHONSE JACQUESSON
APPELLANT

and

MINISTER OF FINANCE
RESPONDENT

Coram :
HARMS,  STREICHER,  MTHIYANE,  LEWIS  et  PONNAN  JJA

Date of hearing :

4 NOVEMBER 2005

Date of delivery :
16 NOVEMBER 2005

SUMMARY

Condictio sine causa – moneys declared forfeit to the State:  on the facts, not
affected by the grant of amnesty in terms of s 20(1) of the Promotion of
National Unity and Reconciliation Act 34 of 1995.

___________________________________________________________________

J U D G M E N T
___________________________________________________________________

PONNAN  JA
[1] The issue in this appeal is whether, by virtue of the amnesty
granted to him on 10 May 2001 in terms of s 20(1) of the Promotion of
National Unity and Reconciliation Act 34 of 1995 (‘the Act’), the appellant
is entitled to repayment from the respondent (the Minister of Finance) of
certain funds that were declared forfeit to the State on 4 March 1994 in
terms of Regulation 22B of the Exchange Control Regulations (‘the
ECR’).1

[2] In chronological sequence the undisputed facts are:
(a)
During 1958 the appellant's father started a family business known
as Jacques Film Distributors ('JFD') in Johannesburg.  Subsequent to
the death of his father the appellant took over all of the assets of the
business, assumed responsibility for all of its liabilities and ultimately
became its sole proprietor.
(b)
On 21 September 1987 the Exchange Control Department of the
South African Reserve Bank instructed Standard Bank to block the
accounts of JFD.  Standard Bank confirmed having done so on 29
September 1987.

1 Made under s 9 of the Currency and Exchanges Act 9 of 1933.  The Regulations are published in
Government Gazette Number R1111 of 1 December 1961.

(c)
On 22 January 1988 the appellant was arrested and indicted
before Didcott J in the Durban and Coast Local Division of the then
Supreme Court on a total of 3 255 charges.
(d)
On 26 January 1988, four days after the appellant's arrest, the
Deputy Governor of the South African Reserve Bank ordered attachment
in terms of Regulations 1, 22A, 22C, 22D and 22E of the ECR of all
funds standing to the credit of JFD which at that stage totalled R1 252
648.75.
(e)
On 3 February 1988 those funds were transferred to the
Corporation for Public Deposits, a juristic person established in terms of
s 2 of the Corporation for Public Deposits Act 46 of 1984.
(f)
On 17 September 1992 the appellant was convicted on 1 058
counts of fraud (being all of the main charges) and sentenced to
imprisonment for a term of seven years.
(g)
On 1 December 1992, just over two months after the appellant's
conviction, the Senior Deputy Governor of the Reserve Bank
despatched a letter in terms of Regulation 22B to the appellant (‘the audi
letter’).  There was no response to the audi letter.
(h)
On 1 March 1994 the funds together with all the interest that had
accrued thereon was declared forfeit to the State.  By that stage the
amount had grown to R2 861 651.  The order of forfeiture was published
in Government Gazette Number 15529 on 4 March 1994.  On 7 April

1994 the funds were deposited into the State Revenue Fund in terms of
Regulation 22B of the ECR.
(i)
On 2 June 1994 and whilst the appellant was still incarcerated, he,
together with five other applicants, launched an application for the
setting aside of the notice of forfeiture and the release of the forfeited
moneys.  On 12 July 1994 three of the six applicants were ordered by
the Pretoria High Court to furnish security. On 15 February 1995 the
application was withdrawn and payment of the respondents’ costs
tendered.
(j)
On 5 November 1994 the appellant was released from prison
under correctional supervision.
(k)
On 20 December 1996 the appellant made application for amnesty
in terms of s18 of the Act.
(l)
On 21 November 1997 the applicant launched an application (‘the
second application’) to secure repayment of the forfeited funds. This
application was opposed. On 19 March 1999 Mynhardt J dismissed the
second application on a point in limine, namely that the appellant’s claim
had become prescribed by virtue of the Prescription Act No 68 of 1969.
(m) On 10 May 2001 the appellant was granted amnesty in terms of
s 20(1) of the Act in respect of

'  .... all offences and delicts resulting from the export to the United Kingdom of
capital in contravention of the South African Exchange Control Laws, committed
during or about the period 1982 to 1987'.

[3] Following upon the grant of amnesty to him, the appellant sought
in the application, which is the subject of the present appeal, an order
directing the respondent to pay to him the amount of R2 861 651 as also
interest and costs.  The application was dismissed by Mynhardt J in the
Pretoria High Court and with leave of the learned judge the matter is
before this court on appeal.

[4] The appellant was party to a systematic series of frauds which,
according to the Reserve Bank, resulted in R103 260 576 leaving the
country illegally under the false and dishonest guise that it was for the
purchase of films when in fact it was neither for the purchase of films nor
for any other legitimate purpose.  By the end of the appellant's criminal
trial, according to Didcott J:
'It had become common cause that a fraudulent scheme had been put into operation
for the illegal exportation from South Africa to the United Kingdom of huge amounts
of money.'

[5] Count 3 255 in the indictment concerned a contravention of
Regulation 3(1)(c) read with Regulations 1 and 22 of the ECR. It alleged
that the appellant had unlawfully and without permission of the Treasury

made payments to a person resident outside the Republic of South
Africa.  Of that charge Didcott J stated:
'Lastly, we have count 3255, an alleged contravention of the exchange control
regulations, a single count with its own single alternative.  This count and its own
alternative were cast in the indictment as an alternative to counts 1 to 1057 taken
together and read as a whole.  In other words, the contravention of the exchange
control regulations was not alleged as an alternative to each of the main counts 1 to
1057.  The result was that the State did not seek a conviction under the exchange
control regulations on any individual occasion covered by counts 1 to 1057 which
failed to produce a conviction for fraud.  It sought a conviction on count 3255 only in
the event of an acquittal of all of counts 1 to 1057.  By the stage of argument not
even that was, in the event, sought.  It is an element of the charges brought under
count 3255 that money was exported without the permission of the Treasury or
anyone authorised by the Treasury.  All the money which was exported in this case
was exported with the permission of one or other bank acting as an agent of the
Treasury.  True, the permission was said to have been fraudulently obtained.  If the
accused is proved to have obtained such permission fraudulently, he will be guilty on
the count of fraud.  If that is not proved, however, it is not proved for the purpose of
this count either.
In the end therefore the entire case revolves around counts 1 to 1057, which are all
the same, each relating to a particular instance or occasion.'

[6] The audi letter, which I set out in some detail, states:
'3.
On 22 September 1992 Mr Maurice Alphonse Jacquesson was sentenced to
seven years imprisonment in the Supreme Court in Durban after conviction on 1 058

counts of fraud committed over the period 1985 to 1987 in that he made certain
misrepresentations which enabled him to transfer R103 260 576 in foreign currency
out of the Republic of South Africa in contravention of the exchange control
regulations, more fully set forth in paragraph 4 below.
4.
As referred to in paragraph 3 above the following contraventions of the
Exchange Control Regulations have been committed or I, on reasonable grounds,
suspect that the following contraventions of the Exchange Control Regulations have
been committed, namely:   ...
7.
The purpose of this letter is, therefore, in compliance with the audi alterem
partem rule, to invite you, which I hereby do, to make representations to me –
7.1
In connection with the possibility that some or all of the money described in
paragraph 5 above together with interest earned thereon, may be forfeited to the
State and disposed of in the manner envisaged in paragraph 6 above; and/or
7.2
As to why some or all of the money described in paragraph 5 above, together
with interest earned thereon should not be forfeited to the State and be disposed of
in the manner envisaged in paragraph 6 above. ... '

[7] The relevant provisions of s 20 of the Act read:
'(7)(a) No person who has been granted amnesty in respect of an act, omission or
offence shall be criminally or civilly liable in respect of such act, omission or offence
and no body or organisation or the State shall be liable, and no person shall be
vicariously liable, for any such act, omission or offence.
(10)
Where any person has been convicted of any offence constituted by an act or
omission associated with a political objective in respect of which amnesty has been
granted in terms of this Act, any entry or record of the conviction shall be deemed to
be expunged from all official documents or records and the conviction shall for all

purposes, including the application of any Act of Parliament or any other law, be
deemed not to have taken place:  Provided that the Committee may recommend to
the authority concerned the taking of such measures as it may deem necessary for
the protection of the safety of the public.'

[8] The appellant's entitlement to repayment of the moneys derived,
so it is asserted, from the condictio sine causa.  Without attempting to
define its ambit, it is available to a claimant, it would seem, seeking to
recover money or property that had been transferred in terms of a valid
causa that has since fallen away (see B & H Engineering v First National
Bank of SA Ltd 1995 (2) SA 279 (A) at 284G – 285C; 9 Lawsa (2ed)
para 220).  Logically the first issue to be resolved therefore is whether
the causa has indeed fallen away. The order of forfeiture issued in terms
of Regulation 22B of the ECR. Regulation 22B provides:
‘… the Treasury may issue an order in writing in which it forfeits to the State any
money or goods referred to in paragraph (a), (b) or (c) of Regulation 22A(1)…’.
It is not clear from the order of forfeiture itself which of sub-paragraphs
(a), (b) or (c) underpinned the forfeiture. It is to either (a)(i) or (a)(ii) that
we must look, we were told by counsel.  To the extent here relevant,
Regulations 22A(1)(a)(i) and (ii) provide:
'(i) any money or goods,…, in respect of which a contravention of any provision of
these regulations has been committed or in respect of which an act or omission has
been committed which the Treasury on reasonable grounds suspects to constitute
any such contravention, or, …

(ii) any money or goods, notwithstanding the person in whose possession it is –
(aa)
which the Treasury on reasonable grounds suspects to be involved in a
contravention of any provision of these regulations or in a failure to
comply with any such provision, or which the Treasury on reasonable
grounds suspects to be involved in any act or omission which the
Treasury so suspects to constitute a contravention of any such
provision or a failure to comply with any such provision …'

[9] The Regulations in question do not contemplate a criminal
conviction or for that matter even a criminal prosecution as a necessary
prerequisite to forfeiture.  Whilst it may well be desirable for a criminal
conviction to precede a forfeiture, a valid forfeiture is not dependent
upon a criminal conviction or a criminal prosecution. That much was
conceded by counsel for the appellant.

[10] For a valid attachment all that is envisaged by the Regulations is
either a contravention or a suspicion on reasonable grounds that a
contravention of any provision of the Regulations has been committed.
Criminal charges and a criminal sanction may follow the contravention.
That will depend in the main on whether the contravention complained of
constitutes a criminal offence.  If a criminal prosecution follows, the
Treasury may delay its decision on forfeiture until finalisation of the trial.
Then again it may not.  The wrong envisaged by the Regulations is a
contravention or suspected contravention of the Regulations not a

criminal conviction.  That wrong may be followed by either criminal or
civil sanctions.  The question in truth that confronts the decision-maker is
thus not whether there is a criminal conviction, but rather whether there
has been a contravention or suspected contravention of the Regulations.
If there has been such a contravention or suspected contravention the
Treasury may, in the exercise of its discretion, act.

[11] The appellant was convicted of 1 058 counts of fraud, not the
alternative charge of contravening the ECR.  Those convictions related
to moneys that had already left the country.  Precisely why the funds
standing to the credit of JDR were attached does not emerge with any
clarity on the papers.  Two possibilities come to mind: First, the moneys
attached were connected to some other contravention of the ECR not
covered by the indictment before Didcott J; and, secondly, the
attachment and subsequent forfeiture was unlawful and invalid at
inception, inasmuch as it was effected in the erroneous belief that those
moneys were connected to contraventions of the ECR covered by the
indictment before Didcott J. Those two possibilities appear to be
exhaustive. Whether the forfeiture was indeed invalid at inception and
therefore impeachable on that basis need not detain us (Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others  2004 (6) SA 222
(SCA)). Plainly on either hypothetical possibility the moneys forfeited to

the State were unconnected to the allegations giving rise to the
indictment before Didcott J.  What is clear and follows logically on this
analysis is that the grant of amnesty and the consequent setting aside of
the conviction is wholly irrelevant to the moneys that were attached and
declared forfeit by the Treasury. It must thus follow that the condictio
fails as the appellant has failed to establish that the causa has indeed
fallen away.

[12] In my view, a further insuperable obstacle stands in the way of the
appellant.  Interpreting the amnesty granted in a most liberal and
generous way, as indeed I must (Azanian Peoples Organisation
(AZAPO) and Others v President of the Republic of South Africa and
Others 1996 (4) SA 671 (CC)), it cannot be said that its reach extends to
the forfeited moneys.  The amnesty granted is in respect of all offences
and delicts resulting from the export to the United Kingdom of capital in
contravention of the South African Exchange Control laws committed
during or about the period 1982 to 1987.  First, the moneys in question
were attached on 26 January 1988 - on any reckoning, outside the
amnesty period.  Secondly, the forfeited moneys do not fall into that
class of capital that was exported to the United Kingdom in
contravention of this country's exchange control laws.

[13] It follows that the appeal must fail. In the result the appeal is
dismissed with costs, such costs to include those consequent upon the
employment of two counsel.

V M  PONNAN
JUDGE OF APPEAL
CONCUR:

HARMS  JA
STREICHER  JA
MTHIYANE  JA
LEWIS  JA