THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 881/2011
Reportable

In the matter between:

MARK MINNIES

First Appellant
IEKERAAM HINI

Second Appellant
MARK ADAMS

Third Appellant
LINFORD PILOT

Fourth Appellant

and

THE STATE

Respondent

Neutral citation:
Minnies v State (881/2011) [2012] ZASCA 102 (1 June 2012)

Coram:
Mthiyane DP, Leach and Tshiqi JJA and Petse and Ndita AJJA

Heard:
10 May 2012

Delivered:
1 June 2012

Summary: Criminal law – contravention of s 34(1)(b) of the South African Reserve
Bank Act 90 of 1989 – offering counterfeit money for sale (not as legal tender) to a
buyer who knew it to be counterfeit, not constituting tendering in contravention of
s 34(1)(b).

___________________________________________________________________

O R D E R
___________________________________________________________________

On appeal from: Western Cape High Court, Cape Town (J H Erasmus J and
Matojane AJ sitting as court of appeal):

The appeal is upheld.
The order of the court below is set aside and in its place is substituted the
following order:
‘(a)   The appeal is allowed.
(b)  The convictions and the sentences of the appellants are set aside.’

___________________________________________________________________
J U D G M E N T
__________________________________________________________________

LEACH JA and PETSE AJA (MTHIYANE DP,TSHIQI JA AND NDITA AJA
concurring)

[1] Arising out of events which occurred on 19 July 2006, the appellants were
tried in the Specialised Commercial Crime Court, Bellville on a charge of unlawfully
tendering counterfeit money in contravention of s 34(1)(b) of the South African
Reserve Bank Act 90 of 1989 (‘the Act’). They were convicted as charged and
sentenced to various terms of imprisonment. The appellants appealed against both
their convictions and sentences to the Western Cape High Court, Cape Town. The
appeal was dismissed but, with leave of the high court, the appellants appeal now to
this court against their convictions only.

[2]   The State’s case on the relevant facts, accepted by the trial court, is the stuff of
a low grade Hollywood thriller. It may be summarised as follows. The principal state
witness, Alfred Robert Laidlaw, was an acquaintance of the first appellant whom he
had not seen for many years; the first appellant contacted Laidlaw and told him that
he was looking for a buyer for counterfeit money; this led to a meeting between
Laidlaw and the first, third and fourth appellants on 12 July 2006 during which
Laidlaw was shown a counterfeit bank note; an offer was made to sell a large
quantity of similar counterfeit bank notes at 50% of their face value; Laidlaw
thereafter contacted the police who decided to set a trap; pursuant thereto to at
midday on 19 July 2006 Laidlaw proceeded to the parking lot of the Good Hope
Centre in Cape Town accompanied by a police agent who was posing as a potential
purchaser; they met the four appellants who showed them a sports bag containing a
considerable number of R100 counterfeit notes; at the time a number of other
policemen were lurking nearby ready to pounce as soon as the transaction was
concluded; however at the moment critique the appellants saw a nearby Metro
police motor vehicle, panicked and took flight, speeding away from the scene in one
of the two motor vehicles they had used to come to the scene; the police pursued
them; a high speed car chase took place through the streets of the city until they
eventually forced the appellants to stop and arrested them

[3] It is apparent from this that the counterfeit banknotes which the appellants
were wishing to sell were not handed over to Laidlaw and his companion but had
merely been offered to them. The State however contended that this was sufficient
to constitute an offence under s 34(1)(b) of the Act which provides that any person
who ‘utters, tenders or accepts any . . . note . . . which has been forged, altered or
unlawfully issued, knowing it to be forged, altered or unlawfully issued’ commits an
offence. Consequently the State alleged the following in the charge sheet:
‘That the accused are guilty of the crime of contravening the provisions of section 34(1)(b)
read with section 1 of the South African Reserve Bank Act 90 of 1989 and further read with
section 2 of the Prevention of Counterfeiting of Currency Act 16 of 1965─
TENDERING OF COUNTERFEIT MONEY
In that on or about 19/07/2006 and at or near Cape Town in the regional division of the
Cape, the accused did unlawfully tender, accept or utter any notes or coins to Alfred Robert

Laidlaw which had been forged, altered or unlawfully issued, knowing it to have been forged,
altered or unlawfully issued, to wit 3 648 x R100 RSA notes.’
[4]   This charge was poorly drawn. As the State’s case related solely to counterfeit
banknotes, the reference in the charge to coins was of no relevance. By the same
token, reference to s 2 of the Prevention of Counterfeiting of Currency Act 16 of 965
was also misplaced. As appears from s 1 thereof, that Act does not apply to
banknotes allegedly issued under the South African Reserve Bank Act 90 of 1989.
Moreover, the allegations that the accused unlawfully accepted or uttered notes to
Laidlaw are irrelevant as the State has never contended that the appellants were
guilty of uttering or accepting.

[5] Be that as it may, the parties were agreed that the charge should be
construed as merely alleging that the appellants had unlawfully tendered counterfeit
banknotes in contravention of s 34(1)(b) despite the evidence clearly establishing
that when the offer to sell the counterfeit money in question was made and the
money shown to Laidlaw and his companion, all concerned knew that the banknotes
were counterfeit and not genuine.

[6] The following issues were argued before us during the hearing of the appeal:
(a) whether in the legal and factual context of this case the word ‘tender’ should be
construed as synonymous with the word ‘utter’; (b) whether the court below erred in
holding that a conviction of ‘tendering’ counterfeit notes was permissible despite the
absence of evidence of an intention on the part of the appellants to offer or pass off
the same as genuine notes; (c) whether in any event the court below erred in relying
on the evidence of Laidlaw who was not only a single incriminating witness but also
whose evidence was fraught with contradictions and inconsistencies which detracted
from its truthfulness and reliability; (d) whether the court below should have drawn
an adverse inference against the State consequent upon its failure to call the
witness David to corroborate Laidlaw’s testimony. From what appears below, it is
unnecessary to decide all these issues.

[7]   The cardinal legal issue to determine is whether offering to sell the counterfeit
banknotes in these circumstances amounted to an unlawful ‘tendering’ as envisaged

by the section. The reason why the trial court concluded that an unlawful tender of
the counterfeit notes had taken place is not clear.  However, in dismissing the
appellants’ appeal, the high court accepted the correctness of the decision in S v
Modisakeng 1998 (1) SACR 278 (T). In that matter the appellant had handed a
counterfeit banknote to a police trap who had expressed interest in purchasing
forged currency. He did so in order to allow the trap to sample the forgeries he had
for sale. The court held that because the trap had known that the note was forged,
the appellant had not committed the offence of uttering. It went on to conclude that
the intention of the legislature was to cast the net as widely as possible in s 34(1)(b)
and that, as ‘tendering’ as envisaged by the section must be taken as something
different from ‘uttering’, the word ‘tender’  should be construed as  embracing the
appellant’s actions in handing over the note despite both he and the trap knowing
that it was false.

[8] In dismissing the appellants’ appeal, the high court accepted the correctness
of the Modisakeng decision. On a similar process of reasoning it concluded that the
appellants’ offer to sell counterfeit money to Laidlaw and his companion amounted to
a tender as envisaged by the section, despite the relevant parties being aware that
the money that was being offered for sale was counterfeit. The correctness of this
decision was at the core of the debate in this court.

[9] In attempting to support the reasoning of the judgment in Modisakeng,
counsel for the State argued that it was necessary to read the words ‘utters’,
‘tenders or accepts’ in 34(1)(b) disjunctively  and to thereby ascribe a different
meaning to each. Accordingly, while accepting that a crime of uttering in the context
of counterfeit banknotes connotes intentionally passing off the false notes by
representing them as genuine to the actual potential prejudice of another1 - and that
for this reason the appellants’ actions fell short of establishing an uttering 2 - it was
contended that this was not necessarily the case with tendering.

1 Compare Snyman Criminal Law 5th Edition 543.
2 Cf R v Toni 1949 (1) SA 109 (A) at 113 and Kolia v Rex 1937 NPD 105.

[10]   There is a close relationship between uttering and tendering. Indeed in many
instances the act of uttering will involve the tender of money. Thus the learned
authors of South African Criminal Law  and Procedure Vol 33 in referring to uttering
or otherwise dealing in counterfeit forgeries, state:4
‘. . . that an uttering involves a parting with (money) or an offering of it. In this sense an
uttering would include a tendering. Nevertheless the words ‘uttering’ and ‘tendering’ should
be read disjunctively, mainly it seems, to obviate difficulties where the accused does not
specifically tender counterfeit money in payment of goods but rather passes a counterfeit
coin in return for good coin tendered to him.’
As support for this latter contention, the learned authers refer to R v Franks5 where
the accused tendered a genuine coin and on receiving a genuine coin as change, by
sleight of hand substituted a counterfeit coin which he then returned, claiming that it
was counterfeit, and demanding a genuine coin. On being given a further genuine
coin he again substituted a counterfeit coin which he again returned. He was found
to have uttered counterfeit coins.

[11] Bearing in mind the close relationship between uttering on the one hand and
tendering on the other, there seems to be no reason for the legislature to have
intended to draw any material distinction between the two in respect of the criminal
intent required to commit the offence. This is especially so as, similar to uttering, in
the context of currency the ordinary use of the word ‘tender’ is to offer money in
payment.  Indeed, and significantly, the legislature in the Act referred to banknotes
as ‘legal tender’ – see eg s 34(2)(c). But more importantly, s 17(1) of the Act
provides that a tender of a banknote ‘shall be a legal tender of payment of an
amount equal to the amount specified on the note’. There is no reason to draw any
distinction between a tender as envisaged in this section and a tender envisaged in
s 34(1)(b). Accordingly tender in the latter section must be construed as an action
whereby counterfeit money is offered as genuine currency. That is the clear
meaning of the section.

3 Milton & Cowling South African Criminal Law  and Procedure Vol 3.
4 Para A2-16.
5 R v Franks (1794) 2 Leach 644.

[12] In the light of this conclusion, the fact that all relevant parties in the present
case were aware that the appellants were attempting to sell counterfeit money is
fatal to the charge levied against them. There was no use or passing off of the
banknotes as if they were genuine and therefore no ‘tendering’ of the counterfeit
notes – and on that issue, the judgment in Modisakeng was wrongly decided. As
there was no unlawful tender as envisaged by s 34(1)(b), the appellants ought not to
have been convicted on the charge on which they were arraigned and their appeal
must  succeed.

[13] In closing, we wish to add that the appellants appear clearly to have been
involved in counterfeiting activities. It is a matter of both surprise and concern that
they were not, at the very least in the alternative, charged with the commission of
some other statutory offence. Whether the prosecution was remiss or not is,
however, not the question that has to be answered in this case.

[14]   The following order is made:
1 The appeal is upheld.
2 The order of the court below is set aside and in its place is substituted the
following order:
‘(a)   The appeal is allowed.
(b)   The convictions and the sentences of the appellants are set aside.’

______________________
L E Leach
Judge of Appeal

____________________

X M Petse

Acting Judge of Appeal

APPEARANCES:

For Appellant:

J van der Berg

Instructed by:

A K Kajee & Associates, Cravenby

Webbers Attorneys, Bloemfontein

For Respondent:

E van Zyl (with her S Liedeman)
Instructed by:
The Director of Public Prosecutions,
Cape Town

The Director of Public Prosecutions,
Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
01 June 2012

STATUS: Immediate

Minnies & Others v The State 881/2011

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (the SCA) today upheld an appeal from the Western
Cape High Court, Cape Town setting aside the convictions and sentences of the four
appellants.

The Appellants were convicted under s 34 (1) (b) of the South African Reserve Bank
Act 90 of 1989. The appellants had offered counterfeit banknotes to a police
informer who was aware the money was counterfeit during a police operation. The
counterfeit money had been offered to the police informer and a third party in return
for genuine money which was to be 50 per cent of the face value of the counterfeit
money. The Specialised Commercial Crime Court convicted the appellants and the
Western Cape High Court dismissed their appeal.

The issue on appeal related to the meaning to be ascribed to the word ‘tender’ in s
34 (1) (b) of the South African Reserve Bank Act. The appellants argued that their
conduct did not constitute ‘tender’ as envisaged in s 34(1(b) because all concerned
knew that the banknotes were counterfeit and not genuine.

The SCA held that the word ‘tender’ as used in s 34(1)(b) meant that the banknotes
offered by the appellants must have been used as ‘legal tender’ by offering them as
genuine currency which was not the case in this appeal.

The SCA found the decision in the case of S v Modikaseng 1998 (1) SACR 278 (T)
which held that ‘tender’ was used in s 34 (1) (b) to cast the net as wide as possible
was wrongly decided.

The appeal was consequently upheld.

-- ends --