On 19 July 2006, the four appellants met Alfred Robert Laidlaw and an undercover police agent at the Good Hope Centre parking lot in Cape Town. The first appellant had contacted Laidlaw (an old acquaintance) previously indicating he was looking for a buyer for counterfeit money. During a meeting on 12 July 2006, Laidlaw was shown a counterfeit banknote and offered to purchase large quantities at 50% of face value. At the 19 July meeting, the appellants showed a sports bag containing numerous counterfeit R100 notes. Both Laidlaw and the police agent knew the notes were counterfeit. When the appellants spotted a Metro police vehicle, they fled. A high-speed chase ensued until police arrested them. The counterfeit notes were never actually handed over to the buyers. All parties knew the notes were counterfeit when the offer to sell was made.
1. The appeal is upheld. 2. The order of the court below is set aside and substituted with: (a) The appeal is allowed; (b) The convictions and sentences of the appellants are set aside.
The binding legal principle established is that 'tendering' counterfeit money as prohibited by section 34(1)(b) of the South African Reserve Bank Act 90 of 1989 requires an intention to pass off or offer the counterfeit currency as genuine legal tender. There must be an element of deception or misrepresentation that the counterfeit money is genuine. Merely offering to sell counterfeit money to a buyer who knows it to be counterfeit does not constitute 'tendering' within the meaning of section 34(1)(b), as there is no passing off as genuine currency and therefore no unlawful tender. The word 'tender' in this context must be given the same meaning as in section 17(1) of the Act, namely offering money as legal tender for payment.
The court made non-binding observations regarding the poor drafting of the charge sheet, noting that references to coins (when only banknotes were involved), to section 2 of the Prevention of Counterfeiting of Currency Act 16 of 1965 (which does not apply to banknotes under the Reserve Bank Act), and to allegations of 'uttering' and 'accepting' (which were never part of the State's case) were all misplaced and irrelevant. The court also expressed surprise and concern that the appellants, who appeared clearly to have been involved in counterfeiting activities, were not charged with other statutory offences, at least in the alternative, though the court noted that the question of prosecutorial remissness was not one it needed to answer in this case.
This case is significant in South African criminal law as it definitively clarifies the meaning of 'tendering' counterfeit money under section 34(1)(b) of the South African Reserve Bank Act 90 of 1989. The judgment establishes that tendering counterfeit notes requires an element of passing them off as genuine currency, similar to the offence of uttering. It overrules the broader interpretation adopted in S v Modisakeng and confirms that offering to sell counterfeit money to someone who knows it is counterfeit does not constitute the offence of tendering. The decision emphasizes the importance of proper statutory interpretation and the need for criminal intent in currency-related offences. It also highlights the importance of proper charge drafting and the need for prosecutors to consider all applicable offences when dealing with counterfeiting activities.