BDFM Online
Thursday, November 16, 2006
Legal Affairs Correspondent
THE Constitutional Court will next week hear a challenge to the constitutionality of certain provisions of the Foreign Exchange Control Regulations drafted under the Currency Exchange Act.
The main question posed to the court is whether an official employed by the South African Reserve Bank may punish, without any judicial oversight, an individual who has had his or her money seized in terms of the exchange control regulations.
Two applicants whose foreign currency was seized in terms of regulation 3(5), argue that allowing an official to decide on whether to refund or forfeit an individual's money was inconsistent with the constitution in three aspects: the right of access to court, the right not to be arbitrarily deprived of property and the constitutional principle which vests judicial authority in the courts, not officials.
One of the men, Malcolm Armbruster, was about to fly overseas in June 2004 when his alleged "illegally acquired" foreign currency, equivalent to about R102000, was seized.
Foreign currency transactions must be conducted through an authorised dealer. He failed in a Pretoria High Court application to have the decision of the Reserve Bank declared inconsistent with the constitution.
The other applicant, Gary van der Merwe, was arrested at the Cape Town International Airport in July 2004 as he was about to board a flight to Spain.
After an inspection of his luggage, a police inspector seized an amount of €130000 and just more than $21000. "To date, I have not been found guilty of any crime," Van der Merwe said in his founding affidavit.
He said there were differing views in different divisions of the high court concerning the interpretation and application of a significant aspect of the exchange control regulations.