Maurice Alphonse Jacquesson v Minister of Finance

The appellant's father started a family business (Jacques Film Distributors - JFD) in 1958, which the appellant later took over as sole proprietor. On 21 September 1987, the Exchange Control Department instructed Standard Bank to block JFD's accounts. On 22 January 1988, the appellant was arrested and indicted on 3,255 charges. Four days later, on 26 January 1988, the Deputy Governor of the South African Reserve Bank ordered attachment of all JFD funds totaling R1,252,648.75 under Regulations 1, 22A, 22C, 22D and 22E of the Exchange Control Regulations. On 17 September 1992, the appellant was convicted on 1,058 counts of fraud and sentenced to seven years imprisonment for a systematic scheme involving the illegal exportation of R103,260,576 to the United Kingdom under false pretenses. On 1 March 1994, the attached funds (which had grown to R2,861,651 with interest) were declared forfeit to the State under Regulation 22B and deposited into the State Revenue Fund on 7 April 1994. On 10 May 2001, the appellant was granted amnesty under section 20(1) of the Promotion of National Unity and Reconciliation Act 34 of 1995 in respect of all offences and delicts resulting from the export of capital to the United Kingdom in contravention of Exchange Control Laws during 1982 to 1987. The appellant then sought repayment of the forfeited funds, claiming entitlement based on the amnesty granted.

• Whether the grant of amnesty under section 20(1) of the Promotion of National Unity and Reconciliation Act 34 of 1995 entitled the appellant to repayment of funds that were declared forfeit to the State under Regulation 22B of the Exchange Control Regulations
• Whether the appellant had a valid claim under the condictio sine causa for recovery of the forfeited moneys
• Whether the causa for the forfeiture had fallen away as a result of the amnesty granted
• Whether forfeiture under the Exchange Control Regulations requires a criminal conviction as a prerequisite
• Whether the scope of the amnesty granted extended to the forfeited moneys

The appeal was dismissed with costs, including costs consequent upon the employment of two counsel.

The binding legal principles established are: (1) Forfeiture under Regulation 22B of the Exchange Control Regulations does not require a criminal conviction or criminal prosecution as a prerequisite - it requires only a contravention or reasonable suspicion of contravention of the Regulations; (2) The wrong contemplated by the Exchange Control Regulations for purposes of forfeiture is the contravention or suspected contravention of the Regulations itself, not a criminal conviction arising from that contravention; (3) Amnesty granted under section 20(1) of the Promotion of National Unity and Reconciliation Act 34 of 1995 does not entitle a person to recovery of funds forfeited under administrative proceedings where the causa for forfeiture is independent of and unconnected to the offences for which amnesty was granted; (4) For a successful condictio sine causa claim, the claimant must establish that the original causa for the transfer has indeed fallen away; where funds are forfeited based on a contravention or suspected contravention of regulations independent of criminal charges, the setting aside of criminal convictions through amnesty does not cause the causa for forfeiture to fall away; (5) The scope of amnesty must be interpreted according to its express terms - amnesty granted for offences during a specific period and relating to specific conduct does not extend to administrative actions taken outside that period or relating to different conduct.

The court noted that while it may be desirable for a criminal conviction to precede a forfeiture under the Exchange Control Regulations, a valid forfeiture is not dependent upon a criminal conviction or prosecution. The court also observed, without deciding, that two possibilities existed regarding the attachment: either the moneys were connected to some other contravention of the Exchange Control Regulations not covered by the indictment before Didcott J, or the attachment and forfeiture was unlawful and invalid at inception because it was effected in the erroneous belief that those moneys were connected to contraventions covered by the indictment. The court declined to determine whether the forfeiture was invalid at inception and therefore impeachable on that basis, citing Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA). The court emphasized that amnesty granted under the Act must be interpreted in a most liberal and generous way, citing Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC), even though such liberal interpretation did not assist the appellant in this case.

This case is significant in South African law for clarifying: (1) the relationship between criminal convictions and administrative forfeiture proceedings under the Exchange Control Regulations; (2) that forfeiture under Regulation 22B does not depend on a criminal conviction but only on a contravention or reasonable suspicion of contravention of the Regulations; (3) the scope and limits of amnesty granted under the Promotion of National Unity and Reconciliation Act 34 of 1995; (4) that amnesty for offences does not automatically result in the return of property forfeited under separate administrative proceedings where the causa for forfeiture is independent of the offences for which amnesty was granted; and (5) the requirements for a successful condictio sine causa claim, particularly the need to establish that the original causa has indeed fallen away. The case demonstrates that administrative sanctions and criminal sanctions, while they may arise from related conduct, operate independently and the nullification of one does not necessarily affect the other.