Court name
High Court Main Division
Case number
CRIMINAL 11 of 2013
Title

S v Mfuka (CRIMINAL 11 of 2013) [2013] NAHCMD 82 (02 April 2013);

Media neutral citation
[2013] NAHCMD 82
Coram
Van Niekerk J
Ueitele J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case No: CR 11/2013


In
the matter between:



THE STATE



and



ANTONIO MFUKA



(HIGH COURT MAIN
DIVISION REVIEW REF NO 1623/2010)



Neutral citation: S
v Mfuka
(CR 11-2013) [2013] NAHCMD 82 (2 April 2013)



Coram: VAN
NIEKERK, J and UEITELE, J



Delivered: 2 April
2013



Flynote: Criminal
procedure
– Charge – C/Regulation 3(1) of Exchange
Control Regulations, 1961 – Essential element that the foreign
currency was taken out of Namibia without the permission of the
Treasury or a person authorised by the Treasury – Failure to
include this allegation in charge – Accused not questioned on
this element in terms of section 112(1)(b) of Criminal Procedure Act,
1977 – Conviction and sentence set aside





ORDER








The
conviction and sentence are set aside.





REVIEW JUDGMENT





VAN NIEKERK, J (UEITELE,
J concurring):



[1] The accused was
convicted by the magistrate of Karasburg on a charge of a
contravention of Regulation 3(1) of the Exchange Control Regulations,
1961 and sentenced to a fine of N$2 000 or 20 months imprisonment.



[2] The relevant part of
the charge alleges that the accused ‘unlawfully and
intentionally departed from Namibia with in his possession foreign
currency, to wit US$8 430-00 ............ without declaring to any
Customs officer.’



[3] The relevant part of
Regulation 3(1) of the Exchange Control Regulations reads as follows:



3.(1)
Subject to any exemption which may be granted by the Treasury or a
person authorised by the Treasury, no person shall, without
permission granted by the Treasury or a person authorised by the
Treasury and in accordance with such conditions as the Treasury or
such authorised person may impose:-




  1. take
    or send out of the Republic any bank notes, gold, securities or
    foreign currency, or transfer any securities from the Republic
    elsewhere;’.









[4] The relevant part of
Regulation 3(3) of the Exchange Control Regulations provides as
follows:



3(3) Every
person who is about to leave the Republic and every person in any
port or other place recognised as a place of departure from the
Republic, who is requested to do so by the appropriate officer shall




  1. declare
    whether or not he has with him any bank notes, gold, securities or
    foreign currency; and



  2. produce
    any bank notes, gold, securities or foreign currency which he has
    with him;.’









[5] Regulation 22
provides, inter alia, that any person who contravenes or fails
to comply with any provision of the regulations shall be guilty of an
offence.



[6] Having considered the
wording of Regulation 3 when the matter came before me on automatic
review, it seemed to me that the particulars in the charge fitted
better to the wording of Regulation 3(3) than to the wording of
Regulation 3(1). Yet the answers given by the accused when the
magistrate questioned him and also during mitigation suggested that
the offence committed resorted better under Regulation 3(1). I
therefore directed the following query to the trial magistrate:



1. Do the
allegations in the charge relate to a contravention of Regulation
3(1) or 3(3) of the Exchange Control Regulations, 1961?



2. If the charge relates to a
contravention of Regulation 3(3), should it not have contained the
essential allegation that the accused was requested by an
“appropriate officer”, e.g. an officer of customs and
excise, to declare whether or not he had foreign currency with him?’.



[7] The learned
magistrate responded that the allegations do relate to a
contravention of Regulation 3(3); conceded that the essential element
was missing; and that, as a result, the accused was not asked whether
he admitted this element. He suggested that the conviction and
sentence should be set aside.



[8] As the matter
concerns the correct formulation of the charge and the evidence on
which it is based, I requested the Prosecutor-General to comment on
the query raised and to suggest what the outcome of the review should
be. I am informed that this request was mislaid for a considerable
period, but Mr Small, Deputy Prosecutor-General, has now furnished an
opinion, for which the Court expresses its gratitude. The accused
appears to have paid part of the fine which means there was no real
prejudice caused by the delay.



[9] In considering the
opinion I shall only mention foreign currency, as this matter
concerns US Dollars. Mr Small agrees that Regulations 3(1) and 3(3)
create two different offences which are committed under different
circumstances. He submits that Regulation 3(1) is contravened when a
person takes or sends out foreign currency without permission of the
Treasury or a person authorised by the Treasury to do so. On the
other hand, Regulation 3(3) is contravened when a person, who is
requested to do so by an appropriate officer, fails to declare
whether or not he has foreign currency and to produce any foreign
currency that he has with him. Regulation 3(1) can be contravened
without the offender being requested to declare the foreign currency.
I agree with this exposition.



[10] Mr Small concedes
that the charge mistakenly alleges that the accused departed from
Namibia without declaring it to a customs officer. He further points
out that the magistrate, when questioning the accused in terms of
section 112(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of
1977), did not establish whether the accused admitted that the
foreign currency was taken out of Namibia without the permission of
the Treasury or a person authorised by the Treasury. This probably
happened because the prosecutor failed to include this element in the
charge.



[11] Mr Small’s
further view amounts thereto that the questioning was incomplete and
that the conviction and sentence must, strictly speaking, be set
aside and the matter referred back to the magistrate in terms of
section 312 of the Act. However, as the accused is a foreigner who
left Namibia, he suggests that it would serve no purpose and agrees
with the magistrate that the conviction and sentence merely be set
aside as they do not accord with justice. I agree with these views.



[12] The result is, then,
that the conviction and sentence are set aside.








_________________



K van Niekerk



Judge


















_________________



S F I Ueitele



Judge