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[2018] ZAWCHC 107
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National Director of Public Prosecutions v Five Star Import and Export (Pty) Ltd (17837/17) [2018] ZAWCHC 107; 2018 (2) SACR 513 (WCC) (30 August 2018)
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Certain
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Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
No: 17837/17
In
the counter-application of:
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
APPLICANT
and
FIVE
STAR IMPORT AND EXPORT
(PTY)
LTD
RESPONDENT
In
re: In the matter between
FIVE
STAR IMPORT AND EXPORT
(PTY)
LTD
APPLICANT
and
THE
MINISTER OF
POLICE
FIRST
RESPONDENT
THE
DIRECTOR OF
PUBLIC PROSECUTIONS;
WESTERN
CAPE
SECOND
RESPONDENT
JUDGMENT DATED: 30 AUGUST 2018
LE
GRANGE, J
:
[1]
On
21 October 2016, a person with the name of Nabeel Mohammed Aboo
(“Aboo”), was travelling from Durban, Kwazulu-Natal,
on
Kulula Flight M702 to Cape Town. He was scheduled to fly on the same
date to Hong Kong via Dubai on an Emirates flight. At the
domestic
arrival’s hall in Cape Town, two officers of the South African
Police Services Border Unit were in the process of
conducting random
stop and search inspections.
[2]
At the time Aboo was carrying three suitcases and was stopped by the
Border Unit. According to the Police, Aboo confirmed that
the
suitcases belonged to him and that he packed the contents thereof. In
the suitcases, a large amount of cash was found.
[3]
The monies were counted at the airport in the Customs office in the
presence of Aboo and his attorney who arrived at the Customs
offices
while the counting process was underway.
[4]
The Police found an amount of R6 175 150 in cash in
dominations of R50, R100 and R200 notes, inserted in 82 unmarked
size
A4 white and brown envelopes. Each envelope contained between R50 000
and R60 000 in cash.
[5]
Arising out of these events, the Applicant (“Five Star”)
launched an application on 3 October 2017 for the return
of the
monies from the South African Police Services (“SAPS”) as
it claims ownership thereof. SAPS opposed the relief
sought. As a
result of Five Star’s application, the Asset Forfeiture Unit of
the National Director of Public Prosecutions
(“the NDPP”)
applied in November 2017, for leave to intervene as a party to the
proceedings. The NDPP also applied
in a counter-application for an
order in terms of section 38(1) of the Prevention of Organised Crime
Act 121 of 1998 (“POCA”)
for a preservation order of the
monies that was seized by the Police, and to oppose Five Star’s
application (the main application)
for the return of the property.
[6] In terms of section 38(2) of
POCA, a High Court is obliged to make an order as contemplated in
section 38(1) if there are reasonable
grounds to believe that the
specified property is either the proceeds, and or alternatively, an
instrumentality of an offence specified
in Schedule 1 in POCA, or
both. Five Star was cited by the NDPP as a party in the
counter-application. According to the NDPP,
the purpose of seeking
the preservation order was to ensure that the monies that were seized
would be preserved pending the outcome
of an application for a
forfeiture order in terms of section 48 of POCA. Five Star did not
oppose the preservation order that was
sought by the NDPP but did
oppose the forfeiture order, as contemplated in section 48 read with
section 50(1) of POCA.
[7]
In the counter-claim, Five Star remains adamant that it acquired the
monies by ordinary trade and lawful means and is the owner
thereof.
[8]
Five Star was incorporated on 23 July 2013 as a private company. Its
sole director is Petros Sibusiso Khanyile (“Khanyile”).
The basis upon which Five Star claims it is the legitimate owner of
the monies was set out in the founding affidavit, as deposed
to by
Khanyile.
[9]
The versions advance by Khanyile, on behalf of Five Star can be
summarized as follows: since January 2016 Five Star imported
agricultural tools and other hardware from various suppliers in
China;
all
custom and excise duty on these goods were paid and Five Star had
currently no liability to SARS;
in
turn, Five Star sold the imported goods to clients in South Africa
who paid in cash; Five Star as a result had a large amount
of cash at
hand; the cash enables Five Star to conclude business deals
expeditiously without the delays; this format of doing business
suits
Five Star as bank transfers where substantial sums are involved often
cause delays; the cash was utilized as soon as soon
as possible to
generate further profit; on advice from other businessmen, it was
decided by Khanyile that Five Star would purchase
prepaid cellular
phone airtime and resell it within a short period of time.; this
method of business would allow Five Star to ‘spin
the cash
quickly’ and to generate quick profit and additional cash flow;
due to Five Star’s ability to pay in cash,
ERZ Telecom CC
(“ERZ”) was prepared to sell large quantities of prepaid
airtime to it at a price of R6 000 960.
[10]
Khanyile further recorded that on 21 October 2016, he liaised with
Zubair Ghood (“Ghood”) a representative of ERZ;
Ghood
required a meeting with a representative of Five Star for purpose of
depositing the funds in the bank account of ERZ and
for the release
of the prepaid cards from the MTN depot in Canal Walk; Junaid Bassa,
an acquaintance of Khanyile was Five Star’s
representative in
Cape Town; a meeting was scheduled with one Ridwaan of ERZ, to
finalise the transaction after the arrival of
Aboo in Cape Town.
[11]
Khanyile described his relationship with Aboo and the reason for his
(Aboo’s) possession of the monies as follows: they
are friends
and former neighbours. He had known Aboo in excess of ten years; Aboo
lives in Durban and often travels to Dubai to
visit his family; He
was aware that on 21 October 2016, Aboo would travel to Cape Town
from where he would travel to Dubai later
that day; as a result of
this information he requested Aboo to take the R6 000 960
in cash with him to Cape Town where
he had to deliver it to Bassa.
[12]
The meeting arrangements that needed to happen when Aboo arrived in
Cape Town was described by Khanyile as follows: He (Khanyile)
had to
contact Bassa the moment Aboo landed in Cape Town. Bassa would then
meet with Aboo at the airport.
[13]
The handling of the monies was recorded as follows: According to
Khanyile he trusted Aboo and agreed to hand him the cash.
Aboo,
signed a receipt on 21 October 2016, acknowledging receiving the
cash. Khanyile also signed the receipt. It was also recorded
that
Aboo must hand the cash in the amount of R6 000 960 to
Bassa.
[14]
According to Khanyile, Aboo was detained by the Police for a few
hours. The Police apparently seized his cellular phone and
denied him
access to it. Bassa could not get hold of Aboo at his arrival in Cape
Town. On discovering that Aboo was arrested, the
attorneys were
instructed to assist Aboo.
[15]
After the monies were counted, Aboo was released. He left the airport
with his attorney. Aboo did not continue with his onward
journey to
Dubai.
[16]
Khanyile further recorded that despite after almost a year since the
seizure of the monies, the Police had failed to established
that any
offence has been committed and demands the return of the monies.
[17]
According Khanyile despite his detailed version of proof of ownership
of monies, and the fact that the Second Respondent on
1 September
2017 decided that they will not institute any prosecution in
connection with the matter at that stage, SAPS refuse
to return the
monies.
[18]
According to Khanyile, large sums of cash are regularly used to pay
for supplies and are often transported from one city to
another in
business generally. It was further stated that the interests of
justice can certainly not demand that in each instance,
such a
customary transport of money for business purposes, will give rise to
reasonable grounds to believe that the money is concerned
in the
commission or suspected commission of an offence.
[19]
The Police version of what transpired after Aboo was confronted at
the airport is somewhat different to what Khanyile stated,
and can be
summarized as follows. Aboo confirmed that all three suitcases
belonged to him and that he packed it himself; he informed
the Police
that the monies belonged to his boss and that he needed to deliver it
to a person in Cape Town; Aboo could not or was
unwilling to provide
any further identification or information as to the person(s) who
gave him the monies or to whom he needed
to deliver it.
[20]
Aboo also failed to inform them that he was on his way to Dubai and
showed no urgency to get on the flight which at that time
was
starting to board. The Police accidentally came upon his passport
with his travel itinerary. According to the Police they formed
the
view that Aboo attempted to remove the cash from the country in
contravention of the Exchange Control Regulations (section
9 of the
Currency and Exchanges Act 9 of 1933
) which makes it a criminal
offence to remove cash in excess of R 25 000 when visiting
countries outside our borders.
[21]
The monies were counted in the presence of Aboo. His attorney arrived
whilst the counting was in process. The total amount
counted was
R6 175 150. The monies were seized in terms of section 20
of the Criminal Procedure Act 51 of 1977 (“the
CPA”). A
criminal docket was registered and further investigation took place.
The attorney that arrived did not engage the
Police on the monies.
Aboo was released with the understanding that the Police would
require his co-operation in the investigation.
Aboo did not proceed
to Dubai. On further investigation, Aboo could not be located at the
address he provided to the Police.
[22]
In respect of the further investigation, the Police recorded the
following: on 2 November 2016, the attorneys of Aboo were
requested
to help locating him; the Police needed to obtain further information
from Aboo as to the origin of the monies; the response
from the
attorneys on 17 November 2016 was they are waiting for further
instructions from their client.
[23]
On 10 January 2017, the attorneys of Aboo were again contacted to
assist, as the Police needed to obtain a warning statement
from him.
This was apparently necessary to forward the police docket to the
Director of Public Prosecutions. No further communication
was
received from the attorneys until early March 2017. Upon that date
the Police collected certain documents from the attorneys.
An
affidavit which was deposed to by Khanyile was part of the documents.
In that affidavit Khanyile recorded that he was the owner
of the
monies seized. The affidavit was however silent on the amount of
monies Khanyile claimed to be the owner of. In fact, a
space was left
open on the page in the affidavit where the amount needed to be
reflected. It was further explained that the monies
were generated
due to the import and export business of Five Star.
[24]
In the counter-application the NDPP had set out a detail version why
they were of the view that the factual matrix in this
instance was
typical of the
modus
operandi
criminal syndicates would adopt in transnational offences, which
includes offences like money laundering and terror financing.
[25]
The version advanced by the NDPP can be summarized as follows: There
had been a significant increase in incidents of transnational
crimes
which among others include the smuggling of vast amounts of cash
through the International Airports of South Africa; the
amount of
cash seized at the various border posts during the period 2015 to
2016 amounted to approximately R225 million; in most
of these
instances the organized crime syndicates would normally employ
couriers or “mules” to transport their criminal
proceeds
out or into the Country; in most cases the crime syndicates would be
protected from investigation and or prosecution as
most couriers
would have no direct knowledge of the operations of crime syndicate;
in this instance the conveyance of the cash
was not done in a manner
that is expected or observed in the normal course of legitimate
personal or business operations as it
was not deposited into a bank
account and/or transferred electronically to another party or a
cheque drawn.
[26]
According to the NDPP, Aboo travelled a route, and to a destination
that is known for terror financing, money laundering
and for
Black Market Exchange systems where cash monies need to be laundered;
the actions of Aboo’s was indicative of a deliberate
attempt to
avoid the organized banking and money regulatory environment; the
Immigration Movement Control Information on Aboo has
established that
since 21 February 2016 until September 2016 he entered and exited
South African borders 21 different times being
out of the country for
not more than two or three days at a time; He travelled to Dubai and
Hong Kong often which trips had short
turnaround times and could only
be indicative of illegal activities where cash or contraband was
merely couriered to the foreign
destination with no paper trail; such
actions are consistent with persons involved in unlawful activities.
[27]
According to the NDPP, the fact that Aboo arrived at 15h30 from
Durban and was due to fly to Dubai at 18h05 supports the views
that
the cash was destined to be taken out of South Africa as there was
insufficient time between the two flights to still meet
a third party
to hand over the suitcases as alleged by Khanyile; the NDPP was
adamant that the cash is the proceeds of unlawful
activities of money
laundering in that it was acquired and/or possessed by persons, who
in the absence of anything to the contrary,
knew or ought reasonably
to have known that the cash was or formed part of the proceeds of
unlawful activities.
[28]
The NDPP has also applied to SARS for the relevant Income Tax and VAT
information relating to Aboo; Khanyile; Five Star and
ERZ Telecom. It
was established from SARS that Aboo and Khanyile at the time were not
registered with SARS for Income Tax and VAT.
Five Star was registered
with SARS for Income Tax from 2015 but the information relating to
its gross income, source of income
and assets from 2015 were
outstanding as it never submitted any tax returns. Furthermore, Five
Star was registered with SARS for
VAT from 2014 but did not submit
any VAT returns since the date of its registration.
[29]
ERZ Telecom was registered with SARS for Income Tax from 2010 and has
declared information relating to its gross income, source
of income
and assets. ERZ Telecom was registered with SARS for VAT from 2009
and its first return period due was 2009 to 2011.
[30] According to the NDPP, having
regard to the information of SARS, it is an inevitable conclusion to
draw that the flight tickets
of Aboo could only have been paid from
unlawful activities as he (Aboo) was not registered with SARS as a
taxpayer but managed
to travel over 16 times overseas in 2016.
Furthermore, according to the NDPP, Five Star has from date of
registration with SARS
failed to submit any tax or VAT returns and
the reasonable inference from that fact is that Five Star did not
generate any significant
sales or income during that period.
According to the NDPP it follows that Five Star could not have
lawfully generated sales or
profit of R6 175 150.
[31]
According to the NDPP the allegation that Five Star entered into an
agreement with ERZ Telecom and would utilize the cash to
buy prepaid
airtime is also highly questionable. According to the NDPP Five Star
could easily have deposited the cash amount into
the account of ERZ
in Durban. Furthermore, the email by Ghood to Five Star dated 21
October 2016 contradicts the version by Khanyile
that it was to be a
cash sale, as Ghood disclosed that his representative would accompany
Five Star to deposit the monies into
a bank account. The NDPP has
further questioned the sales order invoice from ERZ dated 21 October
2016 as they have established
from MTN that it does not sell card
airtime vouchers in denominations of R 25 and R 50 as reflected on
the sales order invoice.
[32]
The NDPP was also adamant that Five Star cannot be the lawful owner
of the monies as there is a discrepancy in the amount that
Five Star
claim being R6 000 960 as owner and the amount that was seized
by the Police being the amount of R6 175 150.
[33]
Against this factual matrix, the question to be decided is whether
the monies in terms of section 20 of the CPA were unlawfully
seized
from Aboo by the Police and whether in terms of section 31(1)(a) of
the CPA, Five Star is lawfully entitled to the return
of the monies.
[34]
Adv. Van Rooyen, SC assisted by Adv N Mbangeni, appeared for Five
Star. Adv. H Cronje, assisted by Adv. U Gcilishe appeared
for SAPS
and Mr. M Kagee appeared for the NDPP.
[35]
The principle submissions that were made on behalf of Five Star were
the following: SAPS and the NDDP failed to advance any
cogent reasons
why the seized monies should not be returned to Five Star; more than
sixteen months had lapsed since the monies
were seized and
nobody
had been charged and no specificity regarding any alleged offence has
been divulged; since March 2017, SAPS and the NDPP
were aware of the
origin and source of the monies and have known who the relevant
role-players were but failed to advance proper
reasons why the
investigation has not been completed. Moreover, no criminal
proceedings have been instituted and it has been shown
on a balance
of probabilities that there is not a reasonable likelihood of
criminal proceedings in the foreseeable future. Furthermore,
SAPS has
failed to discharge the onus to show on a balance of probabilities
that Five Star may not lawfully possess the money
.
[36] Section 20 of the CPA reads as
follows:
“
The
State may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter referred to as an article)-
(a)
which is concerned in or is on reasonable grounds believed to be
concerned in the commission or suspected commission of an offence,
whether within the Republic or elsewhere;
(b)
which may afford evidence of the commission or suspected commission
of an offence, whether within the Republic or elsewhere;
or
(c)
which is intended to be used or is on reasonable grounds believed to
be intended to be used in the commission of an offence.”
[37]
Section 20 has been considered in many cases by the Courts. In
Ndabeni
v Minister of Law and Order
1984 (3) SA 500
(D) at 511D-E, it was held that section 20 ‘
calls
for the existence in fact on reasonable grounds and whether these
exist in a given case must be determined objectively
’.
It is trite that in interpreting section 20 of the CPA, the onus is
on the Police to prove, objectively viewed, the existence
of
sufficient facts upon which the Police had based the reasonable
belief, which facts must exist at the time when the Police acted
without a warrant, and not at a later stage. See also
Mnyungula
v Minister of Safety and Security & others
2004 (1) SACR 219
(TkH) at paras 8-9.
[38]
In the present instance, on the objective facts, the Police’s
reasonable belief that Aboo at the time attempted to remove
the cash
from the Country in contravention of the Exchange Control Regulations
(section 9 of the
Currency and Exchanges Act) which
makes it a
criminal offence to remove cash in excess R 25 000 when visiting
countries outside our borders, can hardly be criticized
and or
faulted.
[39]
Aboo, when confronted by the Police confirmed that all three
suitcases belonged to him and that he packed them himself. The
Police
were also told by Aboo that the monies belonged to his boss and that
he needed to deliver it to a person in Cape Town. Aboo
could not, or
was unwilling to, provide any further identification or information
as to the person(s) who gave him the monies or
to whom he needed to
deliver it. Aboo also failed to inform the Police that he was on his
way to Dubai and showed no urgency to
get on the flight which at that
time was starting to board. The Police accidentally came upon his
passport with his travel itinerary.
On these facts, the reasonable
belief by the Police that Aboo was involved in unlawful activities
can hardly be faulted.
[40]
Moreover,
Five
Star elected not to oppose the preservation order brought by the NDPP
in terms of
section 38
of POCA. It needs to be mentioned that a
preservation order may only be granted on ‘
reasonable
grounds to believe that the property is concerned’
with
the commission of an offence as per
section 38(2)
of POCA. Five
Star’s election not to oppose the preservation proceedings
could only mean it has accepted the Police
must have established
reasonable grounds that an offence had been committed at the time the
cash was seized.
[41]
In all these circumstances, the challenge that the seizure of the
cash was executed in an unlawful manner by the Police is
without
merit and falls to be dismissed.
[42]
With regard to
section
31(1)(a)
of the CPA, the relevant provisions read as follows:
‘
If no criminal proceedings
are instituted in connection with any article referred to in
section
30(c)
or if it appears that such article is not required at the trial
for purposes of evidence or for purposes of an order of court, the
article shall be returned to the person from whom it was seized, if
such person may lawfully possess such article, or, if such
person may
not lawfully possess such an article, to the person who may lawfully
possess it.
’
[43] It is trite that in the context
of the provisions of
section 20
of the CPA (
which permits the
seizure of certain articles by the State
) reads with
section 31
(
which permits the return of a seized article to the a person who
may lawfully possess it
), the main objective of the seizure
authorized by Chapter 2 in the CPA is obviously to enable the Police
to obtain possession of
the articles for the purpose of investigating
crime and to prosecute suspected offenders. In
Ntoyakhe v
Minister of Safety and Security and Others
1999 (2) SACR 349
(E) at 355H-356A, the Court held as follows:
“
The
provisions of
s 20
, read with
s 31
, indicate that the main objective
of the seizure authorised in chap 2 is to enable the police to obtain
possession of articles
for the purpose of investigating crimes and
prosecuting suspected offenders. The chap 2 provisions however do not
confer on the
State the right to deprive a person of the lawful
possession of an article indefinitely. Considerations of fairness and
reasonableness
which underlie our criminal justice system, dictate
that the criminal proceedings contemplated in
s 31
shall be
instituted within a reasonable time. What constitutes a reasonable
period will of course depend on the facts of each case.
In such
regard it seems to me, furthermore, that on general principles the
police are required to place facts and circumstances
before the court
on which the reasonableness of the further detention shall be
adjudged.”
[44]
It is evident that the provisions of
section 31
of the CPA do not
confer on the State the right to deprive a person of the lawful
possession of an article indefinitely. Consideration
of fairness and
reasonableness dictate that criminal proceedings as contemplated in
Chapter 2 (seizure and forfeiture) of the CPA
must be instituted
within a reasonable time. What constitute a reasonable time would
obviously depend upon the circumstances of
each case. There can be
little doubt that the length of the period during which a seized
article had been detained without any
reasonable
likelihood of criminal proceedings in the foreseeable future is an
important consideration. In this regard see
Dookie
v Minister of Law and Order and Others
1991 (2) SACR 153
(D).
[45]
It is clear that section 31(1)(a) calls for two enquiries. The first
is for an applicant to show on a balance of probabilities
that no
criminal proceedings have been instituted and that there is no
reasonable likelihood of such proceedings in the foreseeable
future,
as contemplated in the section 31(1)(a): ‘
if
no criminal proceedings are instituted’
.
If the former onus is discharge then the second enquiry is whether
the Police can prove on a balance of probabilities that an
applicant
may not lawfully possess the article seized. In this regard see
Dookie
supra at 156-7.
[46]
Counsel for SAPS had a different view on the latter point. According
to the argument advanced the onus had not shifted upon
SAPS to show
on a balance of probabilities that Five Star may not lawfully possess
the money in question. For its proposition,
Counsel for SAPS relied
upon on the Constitutional Court case of
Van
der Merwe & Another v Taylor NO & Others
2008 (1) SA 1
(CC)
at paras 58-9 where the following was held:
“
The
return of an article under section 31(1)(a) prior to the completion
of criminal proceedings may, as indicated earlier, be prejudicial
to
trial. For that reason, the burden is on applicants who seek its
return to show on a balance of probabilities that the requirements
of
s 31(1)(a) have not been met and the State is therefore not entitled
to hold the article.
However,
in this case Mr van der Merwe claims the return of his euros in terms
of the rei vindicatio and not under s 31(1)(a) of
the CPA. Once Mr
van der Merwe proves ownership, the burden, unlike s 31(1)(a), is on
respondents to show why the currency should
not be returned
forthwith…
”
[47]
In my view the Constitutional Court did not reverse the burden of
proof in section 31(1)(a) where the question of the lawful
owner or
possessor of a seized item, is concerned. On the contrary, the
Constitutional Court indeed accepted the reasoning in
Dookie
as authority, that section 31(1)(a) calls for a two-stage enquiry. In
the first enquiry, the onus is on an applicant and in the
second, it
is on the Police. In this regard see
Van
der Merwe
at para 59, footnote 67.
[48]
Returning to the present instance, the first enquiry is obviously
whether Five Star on a balance of probabilities has proven
that no
criminal proceedings have been instituted and that there is no
reasonable likelihood of such proceedings in the foreseeable
future,
as contemplated in the section 31(1)(a): ‘
if
no criminal proceedings are instituted’
.
If Five Star succeed in discharging the onus as mentioned above, then
‘
the article shall be
returned to the person from whom it was seized, if such person may
lawfully possess such article, or, if such
person may not lawfully
possess such an article, to the person who may lawfully possess it’.
In the latter enquiry the
onus would then ordinarily shift to the Police to show on a balance
of probabilities that Five Star may
not lawfully possess the monies
seized.
[49]
In the present instance, it seems clear to me that SAPS had
insufficient evidence at their disposal to warrant the prosecution
of
any individual unless they can get hold of Aboo to obtain further
information. Aboo’s current whereabouts are unknown
to the
Police and it appears that there is no likelihood of him being
located in the foreseeable future. The Second Respondent
has also
decided, after almost a year of police investigation, in September
2017, not to institute any prosecution at the time,
due to the
insufficient evidence at their disposal. On these stated facts, I am
satisfied that Five Star has succeeded in proving
that this is a case
where ‘
no criminal
proceedings are instituted
’
within the meaning of the section.
[50]
Turning to the second enquiry, whether Five Star may lawfully possess
the monies that were seized, on a conspectus of all the
evidence, I
am satisfied that SAPS had indeed discharge its onus and established
on a balance of probabilities that Five Star may
not lawfully possess
the monies.
[51]
Khanyile of Five Star, throughout the founding and replying
affidavits, asserts that Five Star is the owner of the cash and
is
entitled to possess the cash. In support of its claim to ownership of
the cash, Five Star had contended that from January 2016,
it imported
agricultural tools and other hardware from various suppliers in the
East, mainly China, which it then sold for cash
to clients in South
Africa.
[52]
To this end, Khanyile had annexed more than 200 pages of documents to
substantiate the claim that Five Star had purchased and
paid customs
duty on various goods imported from India and China. Khanyile also
stated that it had paid all its custom and excise
duty on these goods
and had currently no liability to SARS.
[53]
Sadly, all of the paper produced by Khanyile lacked one fundamental
truth and that is it fails to establish real ownership
of the amount
of monies found in the possession of Aboo. No invoices have been
annexed to substantiate the claim that Five Star
had received any
cash from sales on the items it imported or that Five Star had sales
in the amount of R6 000 960. In fact, on
the information from SARS,
Five Star has since inception failed to render income tax and VAT
returns. It has not paid any income
tax or VAT on the sales that Five
Star alleges generated the amount of R6 000 960 in cash. The
information from SARS clearly refutes
the claim by Khanyile that Five
Star has no liability to SARS.
[54]
On the undisputed version of SAPS, an amount
R6 175 150
was found in the
possession of Aboo, who at t
he
time, informed the Police that the monies belonged to his boss. Aboo
was however unwilling or could not, provide any further
identification or information as to the person(s) who gave him the
monies or to whom he needed to deliver it. The monies were counted
in
the presence of Aboo and his attorney that arrived whilst the
counting was in process.
[55]
Surprisingly, the attorney that arrived to represent Aboo did not
engage the Police on the monies. Aboo was released
with the
understanding the Police would require his co-operation in the
investigation. If indeed there was any credence in the
version of
Khanyile, common sense dictates that Aboo and or the attorney could
simply
have informed the Police that the cash was meant to be handed over to
Abbas who would collect it at the airport. Furthermore,
it escapes
logic that Aboo decided not provide the Police with the name and
contact information of Khanyile and or Bassa, given
that he knew
Khanyile for over 10 years’ and that Bassa would be at the
airport waiting for the money.
[56]
Khanyile’s version
that
he
entrust
ed
to a
24-year-old
friend that was on his
way to Dubai with the task
of
transporting
cash
in
exc
ess
of R6 million
from
Durban to Cape Town, only to have the cash banked as
soon
as it arrived in Cape Town
is
not only highly unlikely but borders on being preposterous.
[57]
Moreover,
it
does indeed appear that Aboo travelled frequently to Dubai and Hong
Kong in 2016, in fact his passport is stamped almost on a
monthly
basis throughout 2016, evidencing frequent short stays in Dubai and
Hong Kong. For a 23-year-old (at the time), who has
no discernible
income and in fact is not even registered for income tax purposes, he
must have had access to considerable cash
to fund his visits to Hong
Kong and his alleged visits to his family in Dubai. However, on the
day in question, Aboo gave no indication
to the Police of his
imminent departure to Dubai, and left with his attorney from the
airport and his whereabouts are still unknown
to the Police.
[58]
In my view the suspicion by SAPS that Aboo’s regular travelling
to Dubai and Hong Kong which often had short turnaround
times could
only be indicative of illegal activities where cash or contraband was
merely couriered to the foreign destination with
no paper trail,
cannot be regarded as unreasonable in the face of all the objective
evidence in this case. Furthermore, the fact
that Aboo arrived at
15h30 from Durban and was due to fly to Dubai at 18h05 supports the
view that the cash was destined to be
taken out of South Africa as
there would have been insufficient time between the two flights to
still meet a third party to hand
over the suitcases as alleged by
Khanyile.
[59]
Lastly, there is another difficulty with Five Star’s claim that
it is the owner of the monies. In our law, the rule is
that once
monies are mixed with other money without the owner’s consent,
ownership in it passes by operation of law. In this
regard, see
FNB
v Perry N.O. and Others
[2001] 3 All SA 331
(SCA) at para 16. In this instance, on the
undisputed evidence, the monies Five Star are allegedly laying claim
to were mixed with
an amount of R 174 190. The mixture of these
monies clearly occurred without the consent of Five Star.
Furthermore, there
are no identifiable bank notes to which Five Star
can base its claim of ownership on. It follows that Five Star in law
cannot be
the owner of the amount of R 6 000 960.
[60]
In my view, on a conspectus of all the evidence, and for the reasons
stated, I am satisfied that SAPS has discharged the onus
resting on
it and that Five Star is accordingly not entitled to lawfully possess
the monies that were seized from
Nabeel
Mohammed Aboo on 21 October 2016 at Cape Town International Airport.
[61]
In view of the abovementioned, the reasons advanced by the NDPP in
the counter-application seeking a forfeiture order are far
more
plausible and is accepted. It follows that the NDPP’s counter-
application should succeed.
[62]
In the result, the following order is made:
1. The main
application is dismissed with costs.
2. The counter-application succeeds
with costs and the cash amount of R6 175 150 is declared
forfeited to the State.
2.1 The Registrar of this Court is
directed in terms of s50(5) of POCA to publish a Notice of this Order
in the Government Gazette
as soon as reasonably possible.
2.2 In terms of s50(6) of POCA read
with section 54(1), Lieutenant Colonel Hendrik Matheus of SAPS under
who the property is currently
held must deposit the monies into the
SAPS bank account number […] at ABSA and is further directed
to cause the cash to
be paid into the bank account of the Criminal
Asset Recovery account […] as established under s63 of POCA at
the Reserve
Bank.
________________
LE GRANGE, J