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[2015] ZAWCHC 155
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National Director of Public Presecutions v Bailey (19611/2013) [2015] ZAWCHC 155 (21 October 2015)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no. 19611/2013
DATE: 21 OCTOBER 2015
In the matter between:
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
.........................................
Applicant
And
SAMANTHA JACOBA
BAILEY
.........................................................................................
Respondent
JUDGMENT
DATED 21 OCTOBER 2015
Before: The Hon. Mr Justice Binns-Ward
BINNS-WARD J:
[1]
The
National Director of Prosecutions has applied in terms of s 48
of the Prevention of Organised Crime Act 121 of 1998 (‘POCA’)
for an order declaring certain immovable property owned by the
respondent forfeit to the state on the grounds that it is an
instrumentality
of an offence referred to in Schedule I to the Act,
namely any offence referred to in s 13 of the Drugs and Drug
Trafficking
Act, 1992 (Act 140 of 1992).
[1]
The offences comprehended in s 13 of the Drugs Act include
unlawfully possessing and dealing in dependence producing
substances
and dangerous dependence producing substances. Section 50(1)(a)
of POCA provides that ‘the High Court
shall, subject to section
52, make an order applied for under section 48 (1) if the Court finds
on a balance of probabilities that
the property concerned is an
instrumentality of an offence referred to in Schedule 1’.
[2]
The
expression ‘instrumentality of an offence’ is defined in
s 1 of POCA to mean ‘any property which is concerned
in
the commission or suspected commission of an offence at any time
before or after the commencement of this Act, whether committed
within the Republic or elsewhere’. It is well
established, however, that a constitutionally compliant reading of
the
statute requires that a restrictive meaning has to be given to
the term; see
National
Director of Public Prosecutions v R O Cook Properties (Pty) Ltd;
National Director of Public Prosecutions v 37 Gillespie
Street Durban
(Pty) Ltd and Another; National Director of Public Prosecutions v
Seevnarayan
2004
(2) SACR 208
(SCA),
2004 (8) BCLR 844
,
[2004] 2 All SA 491.
The
interpretation of the term given in the appeal court’s judgment
in
Cook
Properties
was endorsed by the Constitutional Court in
Mohunram
v National Director of Public Prosecutions (Law Review Project as
Amicus Curiae)
[2006] ZASCA 12
;
2007 (4) SA 222
(CC),
2007 (2) SACR 145
,
2007 (6) BCLR 575.
At
para 44 of her judgment in
Mohunram
,
Van Heerden AJ summed up the import of the term as follows:
In
…
Cook Properties
, Mpati DP and Cameron JA said that
‘(i)t is clear that in adopting this definition the Legislature
sought to give the phrase
a very wide meaning’. They
held, however, that in order to ensure that application of the
forfeiture provision does
not constitute arbitrary deprivation of
property in violation of s 25(1) of the Constitution
‘
.
. . the words “concerned in the commission of an offence”
must . . . be interpreted so that the link between the crime
committed and the property is reasonably direct, and that the
employment of the property must be functional to the commission of
the crime. By this we mean that the property must play a
reasonably direct role in the commission of the offence. In a real
or
substantial sense the property must facilitate or make possible the
commission of the offence. As the term “instrumentality”
itself suggests . . . the property must be instrumental in, and not
merely incidental to, the commission of the offence. For otherwise
there is no rational connection between the deprivation of property
and the objective of the Act: the deprivation will constitute
merely
an additional penalty in relation to the crime, but without the
constitutional safeguards that are a prerequisite for the
imposition
of criminal penalties.’
In
other words, the determining question is
‘
.
. . whether there is a sufficiently close link between the property
and its criminal use, and whether the property has a close
enough
relationship to the actual commission of the offence to render it an
instrumentality’.
Reference may also
usefully be had in this regard to para 14 of the judgment in
Cook Properties
, where it was noted that ‘[t]he purpose
of Chapter 6’s forfeiture provisions is signalled in the
part of the Act’s
Preamble that states that “no person
should benefit from the fruits of unlawful activities, nor is any
person entitled to
use property for the commission of an offence”.
The “use” of property “for” the commission of
crime
denotes a relationship of direct functionality between what is
used and what is achieved.’ (The provisions of POCA
bearing on the current application resort under Chapter 6 of the
Act.)
[3] The evidence
upon which the applicant relies in support of the relief sought is
the results of a number of raids conducted by
the police and the City
of Cape Town metro police at the property during the period 2009 to
2013, in the course of which various
persons were found in possession
of varying quantities of drugs, including mandrax (methaqualone)
methamphetamine (‘tik’)
and cannabis, and varying amounts
of cash. The particulars were summarised in the founding
affidavit of Mr Gcobani Bam, a
senior deputy director of public
prosecutions and the regional head of the Western Cape office of the
Asset Forfeiture Unit of
the National Prosecuting Authority.
[4] Mr Bam
described the seizures effected in the police raids as follows:
1.
the
seizure of 20 packets containing 49,2 grams of
tik
from the bedroom of the property in the presence of the respondent
during a search that the SAPS conducted thereat on 26 March
2009, the
evidence of which is contained in a police docket registered as
Bellville South CAS 261/03/2009;
2.
the
seizure of 8 units of
tik
and cash amount of R11 540 both that were found in the
possession of one Jonathan du Plooy during a search that members of
the City of Cape Town [?metropolitan police] conducted at the
property on 22 September 2009. …[The] details of [the]
evidence [are] contained in a police docket registered with the SAPS
under Bellville South CAS 202/09/2009;
3.
the
seizure of 13 packets of
tik
from certain male persons (Clayton Pietersen, Issac Morris, Maurice
Florence and Walda Windvogel) that the SAPS found at the property
during a search that they conducted thereat on 20 March 2010. On the
said date the SAPS also seized a sum of R1 408 in cash
that was
in the possession of one Clayton Pietersen aforementioned from whom 3
of the aforesaid 13 packets of tik were recovered.
The evidence
relating to the said seizure is contained in a police docket
registered with the SAPS under Bellville South CAS 325/03/2010;
4.
the
seizure of a cigarette-like roll of dagga from one Justin Dirks that
the SAPS found on the property during a search that that
they
conducted thereat on 22 July 2010. …[The]
details of [the] evidence [are] contained in a police docket
registered as Bellville South CAS 242/07/2010;
5.
the
seizure of nine tablets of
mandrax
and five packets of
tik
together with R680 in cash from one Clayton February who was amongst
a group of certain people that were at the immovable property
during
a search that the SAPS conducted thereat on 20 October 2010. …,
the said group of people refused to open the
gate of the immovable
property when members of the SAPS demanded entry and the latter had
to force their way into the property.
6.
the
seizure of 10
mandrax
tablets and R3 240 in cash from one Delmarie Kiewiets who was
amongst a group of female persons who were at the immovable
property
during a search that the SAPS conducted thereat on 20 October 2010.
It is alleged that the said tablets were wrapped
in a certain foil
that Kiewiets hid behind a certain cupboard at the property.
…[A] police docket … is registered
under Bellville
South CAS 230/10/2010;
7.
the
seizure of two packets of
tik
and R411, in cash from February aforementioned during a search that
the SAPS conducted at the immovable property on 2 May 2011.
…
[D]etails of [the] evidence [are] contained in a police docket
registered under Bellville South CAS 22/04/2011;
8.
the
seizure of four packets of
tik
from the respondent, February aforementioned as well as one Janine
Bailey (Bailey) who were hiding in the lavatory of the house
in the
property during a search that the SAPS conducted thereat on
22 October 2011. On the said occasion, an amount
of
R3 730, in cash was found in the possession of the said Bailey.
The evidence relating to the said seizure is contained
in [the]
police docket registered with the SAPS as Bellville South
CAS 257/10/2011 …;
9.
the
seizure of nine packets of
tik
and two and a half
mandrax
tablets that were hidden under a washing machine at the property
during a search that the SAPS conducted at the immovable property
on
6 February 2012 in the presence of Bailey aforementioned, one
Jonathan January and one Marius Kirchner. In this
regards…[there
is] a police docket registered under Bellville
South CAS 83/02/2012;
10.
the
seizure of 34 packets of
tik
from one Jason Willemse that the SAPS found at the property during a
search that they conducted thereat on 24 February 2012.
…
[T]he evidence [is] contained in a police docket registered under
Bellville South CAS 322/02/2012;
11.
the
seizure of a packet of
tik
that was sold to a certain police agent by two male persons who were
at the property of 21 February 2012 during an operation that
the SAPS
conducted thereat in terms of
section 252A
of the
Criminal Procedure
Act, 51, 1977
, as well as a sum of R280, in cash that the SAPS seized
from Willemse aforementioned during a follow-up investigation at the
immovable
property after Willemse had allegedly been pointed out as
the person who sold the aforementioned packet of
tik
to the police agent. [T]he details of the said operation ..[are]
contained in a police docket that is registered under Bellville
South
CAS 323/02/2012;
12.
the
seizure of two plastic bags one containing
tik
and another containing dagga that the SAPS recovered on 18 April 2012
from a shack situated at the property. It is alleged
that the
said recovery was made in the presence of Windvogel aforementioned
who was in the company of one Jason Pretorius and one
Maurice
Florence. [The] details thereof as contained in a police docket
registered under Bellville South CAS 204/04/2012;
13.
the
seizure of two halves of
mandrax
tablets that were wrapped in a silver paper that the respondent tried
to hide behind a TV cabinet in the presence of members of
the SAPS
who were conducting a search at the immovable property on 28 February
2012. … [A] police docket [is] registered
under Bellville
South CAS 467/09/2012. It is alleged that on the said occasion
the respondent admitted that she was selling
(dealing-in) the
mandrax
)
concerned (but that is denied by the respondent, who has not been
convicted of the alleged offence);
14.
the
seizure of eight packets of
tik
and a R100 note that was in the pockets of a pair of trousers of one
Basil Davids who was at the property when the SAPS conducted
a search
thereat on 12 October 2012. The evidence in this regard, [is]
contained in a police docket registered under Bellville
South CAS
136/10/2012;
15.
the
seizure of three halves of
mandrax
tablets, two packets of
mandrax
powder and two packets of
tik
from Basil Davids mentioned in the latter paragraph during a search
that the SAPS conducted at the property on 18 October 2012.
It is
alleged that Davids attempted to run away when he saw the SAPS on the
date in question but the members of the SAPS managed
to apprehend
him. …[The] evidence [is] contained in a police docket
registered under Bellville South CAS 222/10/2012;
16.
the
seizure of four packets of
tik
from three male persons and two female persons who were at the garage
of the property during a search that the SAPS conducted thereat
on 28
July 2013. It is alleged that one of the packets was recovered
from February aforementioned and three thereof were
recovered from
one Steven Christians who was amongst the said group. The
evidence relating to the seizure is contained in
a police docket that
is registered under Bellville South CAS 367/07/2013 ..;
17.
the
seizure of 12 packets of
tik
from Steven Christians mentioned in the latter paragraph during a
search that the SAPS conducted at the property on 20 August 2013.
…[A] police docket ... is registered under the SAPS under
Bellville South CAS 316/08/2013; and
18.
the
seizure of four packets of
tik
from one Simon Bantam (Bantam) who was at the immovable property
during a search that the SAPS conducted thereat on 15 October
2013.
It is alleged that the said Bantam had hidden the said packets in a
certain packet containing dog food and that when
he saw the members
of the SAPS he attempted to throw it away. …[A] police
docket [is] registered under Bellville South
CAS 220/10/2013.
[5] It was further
alleged that ‘in perpetuating the unlawful activity’
[apparently drug-dealing], the respondent uses
messengers, the
so-called “runners” to sell the prohibited drugs from the
property on her behalf. Some of the
respondent’s
messengers are February and Windvogel aforementioned who were also on
certain occasions arrested for selling
the drugs on behalf of the
respondent at the immovable property’. The difficulty
with these allegations is the absence
or paucity of evidence to
support them. The mere fact that persons in possession of
varying amounts of prohibited substance
were found at the property on
a number of occasions over a period of years does not establish that
any of them were the respondent’s
‘messengers’, or
that the property was being used as a ‘drug shop’.
There is no factual evidence
to support the characterisation of
February and Windvogel as the respondent’s 'messengers'.
A conclusion has been stated
in the affidavits. The court is
given no means of determining the substance of the allegations.
[6] The area in
which the property is situated is known to be afflicted by
gangsterism and a high level of crime, including drug-related
offences. It is plain that the respondent’s property was
regularly frequented by a number of dubious characters.
It is
also evident on a balance of probability that the respondent herself
has been found in unlawful possession of small quantities
of
prohibited dependence-producing substances at the premises and that
she habitually keeps company at the house with others
who use
and possess drugs, and who might even deal in them. Such
behaviour does not make her house an instrumentality of
crime in the
sense comprehended in chapter 6 of POCA in respect of drug-dealing,
as alleged by the applicant. That cognisance
may properly be
had to the nature of the area in assessing the facts in cases of this
nature is illustrated by the remarks in
National Director of
Prosecutions v Parker
2006 (3) SA 198
(SCA), at para 29, drawing
a distinction between the character of a private residence in a
residential area and a hotel in a red
light district. The mere
fact that persons in possession of prohibited substance frequent the
house does not make the property
a functionality of the crime of
possession, and, absent sufficient evidence thereanent, of the crime
of dealing in drugs.
More is required to satisfy the
requirement of a directly functional relationship between the use of
the property and the commission
of the offences. In this regard
evidence
is needed; it is not enough for the applicant
in cases like this just to show grounds for suspicion.
[7]
It is not enough that the applicant’s witnesses describe the
property as a well-known ‘drug shop’. As
Cameron JA
remarked in
Parker
supra, at para 45, ‘…the fact that the property was
widely reputed to be a drug outlet does not in my view add to
its
character as a criminal instrumentality. It is true that the
property's reputation as a known drug outlet led directly to the
commission of offences there, since the reputation drew purchasers to
the location. But that is the point: they were drawn by the
reputation,…’. In
Parker
,
the reputation of the property as a ‘drug shop’ was
nevertheless a significant factor in the factual matrix supporting
the conclusion that it was indeed an instrumentality. The
evidence in that case demonstrated that a number of drug sales
had
been concluded at the property over a period of time. That sort
of evidence is sadly lacking in the current case.
Only one
so-called ‘sting’ operation was carried out at the
premises, in which a police agent purchased some ‘tik’
at
the property from a person, Willemse, who had previously been found
at the property when drugs were discovered there.
(The sting
operation relates to the matter described in para 4.10 and 4.11,
above.) In the current case, apart from
the single incident
just described, there is no evidence of anyone having been
successfully prosecuted for dealing in drugs at
or from the
property. The state’s approach to the prosecution of
persons arrested at the property seems to have been
somewhat
lackadaisical. A number of charges appear to have been
withdrawn for want of prosecution and in those cases in which
a
conviction has been obtained, it was, without exception, for
possession of the prohibited substances involved, not for dealing
in
them.
[2]
Evidence of a
course of dealing, as distinct from a single transaction, is
necessary if it is to be established that premises
are being used as
a shop; cf.
Parker
supra,
at para 43.
[8]
The
evidence is that the property has been exceptionally well secured.
Photographs annexed to the applicant's papers bear
this out.
The outer perimeter of the property has been ordered in such a way
that it would be virtually impossible to see
into the property from
the street. The respondent maintains that the property has been
secured because of the high crime
rate in the area. Nothing is
made of it in the affidavits, but it would appear from the
photographs that something that looks
like a tarpaulin has been
stretched over the roofing of the dwelling house and surrounding area
so that it would also be impossible
to obtain an aerial view of
activity at the property. The effect is undeniably sinister,
but what is to be made of it in
assessing the functionality of the
property in the context of the evidence as a whole? Nothing
within the property has been
identified as an adaptation to support
the notion that it has been set up or furnished to serve the
particular purpose of a drug
shop (in this respect the case falls to
be distinguished on its facts from matters like
National
Director of Public Prosecutions v Prophet
[2006] ZACC 17
;
2003 (6) SA 154
(C),
2003 (8) BCLR 906
;
2005 (2) SACR 670
(SCA),
2006
(1) SA 38
;
2006 (2) SACR 525
(CC),
2007 (6) SA 169
,
2007 (2) BCLR 140
and
National
Director of Public Prosecutions v Van der Merwe and Another
2011 (2) SACR 188
(C)).
[9]
In
Parker
,
at para 38, it was remarked that where evidence of adaptation or
storage is lacking, the characterisation of the property as an
instrumentality is a matter of degree. It depends on an
assessment of the evidence as a whole. In that case the
characterisation
of the residential premises in question as a 'drug
shop' was primarily based on the number of drug deals shown by the
evidence
to have been transacted there, together with evidence
demonstrating that these had occurred under the centralised
organisational
control of the person admittedly in charge of the
property. There is no evidence of that nature in the current
matter.
[10]
The
fact that the perimeter security has been used on occasion to delay
or frustrate policemen from entering the premises when raids
on it
have been carried out is not enough, by itself, or in the context of
the other evidence adduced, to demonstrate a sufficiently
direct
connection between the use of the property and a dealing in drugs
there. It is readily conceivable that persons on
the property
in unlawful possession of drugs would seek to obstruct police entry
irrespective of whether or not they were trading
in the prohibited
substances from the property.
[11]
The
current application was preceded, in accordance with the scheme of
chapter 6 of POCA, by an
ex
parte
application for a preservation order. The averments of one
Ricardo Rhoda, a senior financial investigator in the Asset
Forfeiture
Unit, in the principal affidavit in support of the
preservation order application were incorporated by reference in
support of
the current application. The answering affidavit of
the respondent, who at that stage was legally represented, was
directed
entirely at the allegations in Rhoda’s affidavit.
The preservation order was made on 29 November 2013. The papers
in the current application were served on the respondent on
5 December 2013. Thereafter, on 26 September 2014, the
founding papers were supplemented by a supplementary founding
affidavit deposed to by Mr Bam on that date. The supplementary
affidavit was directed at introducing evidence arising out of a
search of the premises allegedly undertaken on 14 April 2014 for
the
purpose of following up ‘information regarding drugs and
firearms that were unlawfully kept at the premises’.
There is no indication in the papers that the supplementary affidavit
filed of record on 26 September 2014 was delivered to
the
respondent or her attorneys of record. When I drew the matter
to her attention, Ms
Nodada-Gantolo
,
who appeared for the applicant, confirmed that the supplementary
affidavit did not appear to have been served on the respondent.
That, no doubt, explains why there was no answer to it.
[12]
The
matter dealt with in the supplementary affidavit is therefore not
properly before me in this application. Its content
in any
event left much to be desired. The affidavit stated that
‘prohibited dependence-producing drugs of various types
namely
methamphetamine and methaqualone’, six unlicensed firearms ‘of
various categories’ and R63 630 in
cash were found on the
premises when they were searched in April 2014. A forfeiture
order in respect of the cash discovered
in the April search was
obtained on 9 September 2014 in separately instituted
proceedings under case no. 10018/14. Paragraphs
12 - 14 of the
supplementary affidavit in the current matter went as follows:
12. In order not to
overburden these papers, the founding papers of the preservation of
property and forfeiture application relating
to the latter forfeiture
order are not attached. A bundle thereof will, however, be made
available to the honourable court
for the hearing of the pending
forfeiture application
if necessary
. I accordingly pray that
that the contents thereof be read as if incorporated in these
proceedings.
13. I must mention
further that prior to the launching of the proceedings for the
forfeiture order in annexure GB5 hereto* the applicant
served upon
the respondent the preservation papers and the preservation order
relating to the seizure of the aforementioned cash
and the other
exhibits referred to herein above.
14. Therefore in
view of the aforesaid I submit that the aforesaid indicates clearly
that the property is continuously used as an
instrumentality of
drug-dealing as, amongst other things, the prohibited drugs in
question were of substantial quantity and valued
at approximately R
176 412 000.
(Emphasis
supplied.)
[13]
Quite
clearly, if the applicant intended any regard to be had to the facts
set out in the most general terms in the supplementary
founding
affidavit, it was incumbent on it not only to serve the affidavit on
the respondent, but also to place the material it
sought to
incorporate by reference before the court. I do not know what
was in the material not placed before the court,
but presumably it
included particulars of the nature of the information that led to the
search, a more precise description of the
nature of the drugs found
at the premises and the circumstances in which they were found there
and furnished the basis on which
their value had been estimated at
more than R176 000. The qualification ‘if necessary’
in paragraph 12 of
the supplementary affidavit was utterly fatuous in
the circumstances; the additional material was plainly necessarily
required
reading for the judge if any regard was to be had to the
supplementary affidavit. As it was, the ‘bundle’
was
not made available, or indeed even referred to in the applicant’s
heads of argument. In terms of the practice requirements
in
this Division of the High Court, an early allocation of the matter
was required by virtue of the volume of the papers.
The
applicant complied with the practice directive and duly requested an
early allocation. The exercise did not properly
serve the
purpose, however, as an apparently important part of the papers was
not provided to the judge. The efficient hearing
of the matter
would be materially impaired were the bundle only to be presented
when the matter was called.
[14]
In
the result, I am of the view that the applicant has failed on the
papers properly before me to adduce the evidence that would
be
necessary for this court to be satisfied on a balance of probability
that the property is an instrumentality of the offence
of dealing in
drugs. This conclusion is a matter of some regret because I
have the strong feeling that if sufficient trouble
had been taken to
establish a course of dealing there, the evidence could probably
could have been found to sustain the applicant’s
case.
Nothing in this judgment prevents the applicant from instituting
proceedings afresh, if so advised, on improved evidence.
[15]
The
respondent appeared in person at the hearing, her attorneys having
withdrawn due to lack of funding. Legal costs will
have been
incurred in respect of her earlier representation. The application is
therefore dismissed with costs.
A.G.
BINNS-WARD
Judge
of the High Court
[1]
Item
22 of Schedule I.
[2]
The tendency by some prosecutors to accept guilty
pleas to charges of possession in terms of s 4(b) of the Drugs
Act, rather
than going to trial to obtain convictions on charges of
dealing in terms of s 5(b) was noted in
S v Pietersen
[2014] ZAWCHC 200
(19 December 2014) (which is accessible on the
SAFLII website), a copy of which was directed by the court to be
sent to the Director
of Public Prosecutions.