ATTORNEY-GENERAL v NURMAHOMED 1982 (2) ZLR 194 (S)

Flynote

Criminal law — Exchange control Act [Chapter 170] — sections 5 (3) (a) c and 7 — special reasons for not imposing minimum, fine and ordering forfeiture — ignorance of the law — when can amount to a special reason.

Headnote

The respondent, a resident of Malawi, imported $7 000 into Zimbabwe. He had bought it in Malawi and sewn it into the lining of a jacket because he knew it was illegal to export foreign currency from Malawi. It was found that he at least suspected that there were controls on the importation into Zimbabwe of Zimbabwe currency, but he did not trouble to find out what these were, nor did he volunteer to the Customs authorities his possession of the money. In spite of this, the magistrate found that there were special reasons for not imposing the minimum fine, of the value of the currency, and ordering forfeiture of the currency, saying that -

"The accused was unaware of the Law and there was no apparent prejudice to the country's reserves."

The Attorney-General appealed against the sentence of $1 000 that was imposed.

Held, allowing the appeal, that while ignorance of the law can constitute a special reason, this is only in the case of an unconscious contravention of the Act, reducing the accused's moral guilt to a point where it is virtually absent. The respondent did not fall into this category; strict exchange control laws apply over much of the world, particularly in Africa, and must be known by a person of any education to exist. The fact that the respondent did not know exactly what the Regulations prescribed was hardly a special circumstance.

Held, further, that it was incorrect to say that there was no apparent prejudice to the country's reserves. The object of preventing the unlicensed import of Zimbabwe currency is to prevent its illegal export. Further, importation of Zimbabwe currency would lessen the amount of foreign currency that might otherwise come in.