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[2018] ZAWCHC 121
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National Director of Public Prosecutions v Joseph and Another (8271/2018) [2018] ZAWCHC 121 (7 September 2018)
Republic
of South Africa
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
Number:
8271/2018
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Applicant
and
ALDENO
JOSEPH
First
Respondent
A
AND C AID (PTY)
LIMITED
Second
Respondent
DATE:
07 September 2018
J U D G M E N T
MACWILLIAM
AJ:
THE
APPLICATION
[1]
The Plaintiff brought the present
application in terms of Section 38 of the Prevention of
Organised Crime Act, 121 of 1998
(“POCA”) for an order
preserving the amounts of R20 000,00 and R232 051,20, being
the amounts of cash which
were seized from the First Respondent on
15 July 2017 and 2 January 2018 by members of the South
African Police Services
stationed at Grassy Park Police Station.
[2]
The application was commenced by way of an
ex parte
order in terms of which,
inter alia
,
all persons with knowledge of the order were prohibited from taking
possession of this money. This order also provided for
the
manner in which service was to be effected and for affected persons
to oppose the application in due course.
[3]
The First and Second Respondents thereafter
gave notice of their intention to oppose the application and filed an
Opposing Affidavit.
[4]
The Applicant now applies for an order
preserving the amounts of R20 000,00 and R232 051,20 in
cash (“the property”)
in terms of Section 38 of
POCA, pending the outcome of an application for a forfeiture order in
terms of Section 47 of
POCA.
[5]
In their Heads of Argument, the Respondents
opposed the granting of this order on a number of grounds which will
be dealt with later
in this judgment.
SECTION
38 OF POCA
[6]
Section 38 of POCA provides that:
“
(2)
The High Court shall make an order referred to in sub-section (1) if
there are reasonable grounds to believe that the property
concerned -
(a) is an
instrumentality of an offence referred to in Schedule 1;
(b) is the proceeds of
unlawful activities; or
(c) is property
associated with terrorist and related activities.”
[7]
In this matter the Applicant relies only on
Section 38(2)(b) of POCA, i.e. that the property
“
is
the proceeds of unlawful activities”
.
[8]
The proceedings in this matter were
commenced by way of an
ex parte
application in accordance with the terms of Section 38(1) of
POCA, which expressly authorises this procedure.
[9]
In
terms of Section 38(2) of POCA, if there are reasonable grounds
to believe that the property concerned is the proceeds of
unlawful
activities, the Court must make a preservation order. See
National
Director of Public Prosecutions v Mohamed N.O.
[1]
THE
STANDARD OF PROOF
[10]
The authorities which both parties referred
me to related almost exclusively to forfeiture orders and not to
orders in terms of
Section 38 of POCA.
[11]
The
applicable principles in relation to the standard proof to be applied
when an application is heard in terms of Section 38
of POCA are
set out in
NDPP
v Starplex 47 CC and Others
[2]
in the following terms:
“
[8]
As regards the standard of proof required in order to obtain a
preservation order, in National Director of Public Prosecutions
v
Kyriacou
2004 (1) 379 (SCA) [also
reported at
[2003] 4 All SA 153
(SCA) - Ed], Mlambo AJA, on
behalf of the majority of the court, rejected the notion that
disputed evidence in such applications
must be dealt with in
accordance with the principles set out in Stellenbosch Farmers Winery
Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C) [also reported at
[1957] 1 All SA 123
(C) - Ed] and
Plascon Evans Paint Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) [also reported at
[1984] ZASCA 51
;
[1984] 2
All SA 366
(A) - Ed]. He stated as follows (at 384I-385B):
‘
Section
25(1)(a) confers a discretion upon a court to make a restraint order
if, inter alia, “there are reasonable grounds
for believing
that a confiscation order may be made ...”. While a mere
assertion to that effect by the appellant will
not suffice ..., on
the other hand the appellant is not required to prove as a fact that
a confiscation order will be made, and
in those circumstances there
is no room for determining the existence of reasonable grounds for
the application of the principles
and onus that apply in ordinary
motion proceedings. What is required is no more than evidence
that satisfies a court that
there are reasonable grounds for
believing that the court that convicts the person concerned may make
such an order.’
[9]
Although the Kyriacou
case (
supra
)
dealt with restraint orders under chapter 5 of the Act rather
than preservation orders under chapter 6, the two procedures
are
analogous inasmuch as they are temporary orders pending the
institution and determination of a forfeiture action. In
National Director of Public Prosecutions v Phillips and others
2002 (4) SA 60
(W) [also reported at 2002 (a)
BCLR 41 (W) - Ed] in dealing with the question of what degree of
proof is required of the applicant
in section 26 ie restraint
proceedings in terms of chapter 5 of the Act, Heher J, as
he then was, stated as follows
at paragraph [12]:
‘
In
my view an application for a restraint order is analogous (although
not identical) to an application for an interim interdict
and
attachment pendente lite. Insofar as such relief contains
elements of finality, the Legislature could never have intended
that
it should be defeated by reason of conflicts of fact per se.
Nor would a reference to evidence be appropriate:
that might
well anticipate the enquiry at the criminal trial and impinge on the
right of silence. The prima facie case is
proof of a reasonable
prospect of obtaining both a conviction in respect of the charges
levelled against the respondent and a subsequent
confiscation order
under section 18(1). It is appropriate in determining
whether the onus has been discharged to apply
the long accepted test
of taking the facts set out by the applicant together with any facts
set out by the respondent which the
applicant cannot dispute and to
consider whether, having regard to the innate probabilities, the
applicant should on those facts
obtain final relief at a trial (for
this purpose, the confiscation hearing). The facts set up in
contradiction by the respondent
should then be considered and, if
serious doubt is thrown upon the applicant’s case, he cannot
succeed.’
This
approach was endorsed by this Court in the case of
National
Director of Public Prosecutions v Van Heerden and others
2004 (2) SACR 26
(C) (at 33-34) [also reported
at
[2003] 4 All SA 459
(C) - Ed], where
Meer J
stated as follows:
‘
A
preservation order under section 38 of POCA is akin to an
interim interdict. Its aim is to preserve property for up
to 90
days pending proceedings for a forfeiture order under section 48
of POCA ... The appropriate standard of proof
at the
preservation order stage must therefor be the well established one of
prima facie proof applicable to interim interdicts.
In Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189 as qualified in Gool v
Minister of Justice
1955 (2) SA 682
(C) at 688C-D the degree of proof
required was formulated as follows:
“
In
an application for a temporary interdict the applicant’s right
need not be shown on a balance of probabilities; it
is
sufficient if such right is
prima
facie
established, though open to
some doubt. The proper manner of approach is to take the facts
set out by the applicant together
with any facts set out by the
respondent which applicant cannot dispute and to consider whether,
having regard to the inherent
probabilities, the applicant should
(not could) on those facts obtain final relief at a trial. The
fact set up in contradiction
by the respondent should then be
considered, and if serious doubt is thrown upon the applicant’s
case, he could not succeed.”
At the preservation
stage therefore the applicant is required to establish under
section 38(2) no more than a prima facie case
that there are
reasonable grounds to believe that the property concerned is (a) an
instrumentality of an offence referred to in
schedule 1;
and [sic] (b) is the proceeds of unlawful activitiesc [sic]. It
is only at forfeiture stage under
section 48 that proof on a
balance of probabilities is specified by the Legislature. Had
the intention been for the
higher standard to have applied also at
the preservation stage, the legislature would also have specified.
It provided instead
for reasonable grounds to believe.’
I
am in agreement with the approach to standard of proof as set out in
Phillips’s
and
Van Heerden’s
cases
(
supra
).”
[12]
I too, am in agreement with the approach to
the standard of proof as set out in both
Phillips’
and
Van Heerden’s
cases, as endorsed in the
Starplex
case.
THE
FACTS WHICH ARE ALLEGEDLY COMMON CAUSE
[13]
In paragraph 56 of the Applicant’s
Amended Heads of Argument, the Applicant’s counsel summarised
the facts which he
alleged were common cause, namely:
“
56.
it is common cause that:
56.1 cash in the
amounts of R20 000 and R232 051.20 was seized from first
respondent;
56.2 first respondent
has not presented documentary proof of the source of the cash that
was seized;
56.3 On 15 July 2017
cash in the amount of R20 000 was seized with dagga from the
first respondent;
56.4 First respondent
later pleaded guilty on this case;
56.5 During the period
between 2008 and 2012 first respondent was arrested for drug related
criminal activities (although First
Respondent plays down these
cases’ relevance to the current application);
56.6 It is submitted
that the first respondent derives his money from unlawful activities
which placed him in a position to possess
large quantities of cash
that is not banked.”
[14]
Paragraph 56 was not addressed in the
Respondents’ argument.
[15]
Paragraph 56.2 is not entirely accurate.
While no such documentary proof was attached to the Respondents
Opposing Affidavit,
certain documentation obtained from the First
Respondent was attached as part of the Applicant’s founding
papers. I
deal with this documentation later in this judgment.
[16]
The facts referred to in paragraph 56.5
cannot be so simply stated. The allegations made in the affidavits
filed of record reveal
that:-
[a]
in paragraph 22 of the Founding Affidavit
of Van Zyl, he states that the relevant facts appear from paragraphs
8 to 24 of a further
affidavit of Abrahams-Hans to the effect that
the property was the proceeds of unlawful activities as defined in
Section 1
of the POCA;
[b]
in paragraph 16 of the Opposing Affidavit,
the First Respondent states no more than that
“
I
have no knowledge of the allegations contained in these paragraphs
[which included paragraph 24]
,
cannot confirm or deny same, and put the Applicant to the proof
thereof”
;
[c]
at no time did the Respondents attempt to
deal with the specific allegations made in paragraphs 8 to 24 of
Abraham-Hans’ affidavit;
[d]
in paragraph 24 of Abraham-Hans’
affidavit, she described four prior
“
drug
dealing related case dockets [which] were registered against the
First Respondent”
;
[e]
it is apparent from the annexures to
Abraham-Hans’ affidavit that at best, they substantiate that
the Appellant was in possession
of drugs on a number of occasions;
[f]
in any event, it appears from the annexures
that in at least two of the matters the First Respondent paid
admission of guilt fines;
[g]
in paragraph 44 of the Founding Affidavit,
Van Zyl states that
“
it further
appears that First Respondent has paid a number of admission of guilt
fines for drug-related offences”
.
In their Opposing Affidavit, the Respondents admit that the First
Respondent had
“
paid a number of
admission of guilt fines for drug-related offences”
;
[17]
Insofar as paragraph 56.6 is concerned, it
is not apparent how the contents thereof could be said to be common
cause, in circumstances
where the Respondents deny that the cash was
sourced from unlawful activities, albeit that this denial amounts to
no more than
a bare denial.
THE
RESPONDENTS’ ORAL ARGUMENT
[18]
At the commencement of the application, the
Respondents moved an application for condonation which was granted.
More specifically,
the Respondents’ counsel, Mr Houze,
moved an application for condonation for the late filing of the
Respondents’
revised Heads of Argument which had only been
filed the previous day. Notwithstanding that condonation was
granted, it is
striking that Mr Houze was simply unable to give
a satisfactory explanation as to why his Heads of Argument were filed
late.
[19]
Thereafter, and during the course of his
argument, it became apparent that Mr Houze’s knowledge of
the papers was woefully
inadequate.
[20]
Not only that, but when asked to justify a
submission which he had made with reference to a particular passage
in his clients’
Opposing Affidavit, it transpired that he did
not even have a copy of his clients’ Opposing Affidavit with
him in Court.
He was requested to obtain it during the tea
adjournment.
[21]
He only returned to Court 45 minutes after
the commencement of the tea adjournment. When asked for his
explanation for the
delay, he stated that he was not aware that the
tea adjournment was only 15 minutes, notwithstanding that he stated
that he had
been at the Bar for the last 4 years.
[22]
When he was thereafter asked to refer the
Court to a passage in the Applicant’s Founding Affidavit in
support of another submission
made by him, he was unable to do this.
As it turned out, he did not have the Founding Affidavit before him
and it was clear
that he had not had it during the proceedings up
until that time. He stated that it was, however, in his case.
As a
result, the matter had to be paused for some time while a
copious number of documents were retrieved by him from his case and
he
searched through them for the Founding Affidavit.
[23]
As it turned out, the reference which he
was looking for was not in the Founding Affidavit. When it was
pointed out to him
by the Court that the passage in question was in
the supplementary affidavit of Abrahams-Hans, he once again had to
pause in order
to search through the aforesaid pile of documents to
find the supplementary affidavit.
[24]
Even more astounding was the fact that
Mr Houze argued, as part of his own clients’ case, that in
terms of Section 38
of POCA, the onus of proof was on the
Respondents, although no-one had suggested this up until that stage
and his argument was
seriously adverse to his clients. When the
court expressed its surprise at this submission, Mr Houze
reiterated that
“
the First
Respondent has the onus to prove that the cash was not the proceeds
of unlawful activities”
.
[25]
Mr Houze made this argument, he said,
with reference to the definition of an
“
instrumentality
of an offence”
which is defined
in 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 not apparent in what possible way this definition gave rise to
Mr Houze’s argument.
[26]
When Mr Houze was then asked how his
clients had satisfied this onus which he argued his clients bore, he
could only refer
to two passages in his clients’ Opposing
Affidavit, being the following passages:
[a]
“
5. I respectfully submit that, in
my founding affidavit for a spoliation order under case number
RCC/WYN/104/18
,
which is pending in the Wynberg Regional Court, I have established
that:
(a) I was in peaceful
and undisturbed possession of the property; and
(b)
that I was forcibly and wrongfully deprived of the property.
Therefore I submit that I am entitled to a spoliation order
in terms
of the property, and that this current application for a preservation
order is both improper and misconceived, and stands
to be dismissed,
with punitive costs”
.
Quite plainly, all this
passage related to was the possession of the property and the First
Respondent’s deprivation thereof.
It did not in any way
substantiate that the property was sourced from lawful activities.
[b]
Paragraph 25 of the Opposing Affidavit,
which states that:
“
25.
Save to admit that I was requested to accompany the SAPS to Grassy
Park Police Station to count the confiscated cash, I deny
that such
cash was the proceeds of drug dealing activities.”
Plainly,
a denial that the cash “
was the
proceeds of drug dealing activities
”
does not constitute positive evidence to discharge the onus which
Mr Houze had argued his client bore.
[27]
Further, Mr Houze was unable to point
to any other paragraph in the Respondents’ Opposing Affidavit
in which the Respondents
gave any explanation for the First
Respondent’s possession of the large sums of cash which were
found in his car and home.
[28]
In the result, the inevitably consequence
of Mr Houze’s concession must have been that the
Respondents had no defence
to the present application.
[29]
However, for the purposes of this judgment,
I will disregard Mr Houze’s argument and/or concession.
THE
APPLICANT HAS DISCHARGED THE ONUS RESTING ON IT
[30]
In any event, I have come to the conclusion
that the Applicant has, on the papers before the Court, succeeded in
proving that
“
there are reasonable
grounds to believe that the property concerned … is the
proceeds of unlawful activities”
.
In particular:
[a]
The amount of R20 000,00 was seized
from the First Respondent on 15 July 2017. It was seized
at the same time that
11 bank bags of dagga were seized from him.
The money and the dagga were found together in his motor vehicle.
R20 000,00
is a large sum of cash to have in one’s motor
vehicle. In the opposing papers, no attempt was made to explain
why that
sum of money was found in his motor vehicle together with
the quantity of dagga that was found there.
[b]
The Respondents have taken no action to
recover that R20 000,00 from the police. In fact, no
explanation was given in
the Respondents Opposing Affidavit why the
Respondents were content to let the seizure of the R20 000,00 go
unchallenged for
so long. This is especially puzzling if in
fact the R20 000,00 was received by the Respondents in the
lawful course
of business.
[c]
R232 051,20 is a very large sum of
money for anyone to have in cash secreted on his property. Not
only that, but according
to the Respondents, this cash had been on
the First Respondent’s property since November 2017.
Furthermore, he alleged
that he left this cash on his property while
he was away on holiday.
[d]
A portion of this cash was found in a
plastic bag in the First Respondent’s fridge. Not only is
this a very odd place
in which to keep so large a sum of money, but
the evidence from the Applicant is that when they recovered this
packet of money
from the fridge, it was not cold: the inference
being that it had recently been placed there and that it may have
been the
same packet which the First Respondent was seen by the SAPS
members removing from his motor vehicle and taking inside his house
shortly before the cash was found. The fact that the packet was
in the fridge, but was not cold, is curious, as is the Respondents’
failure to address this issue in their Answering Affidavit.
[e]
A significant amount of cash was found in
the First Respondent’s stove under the plates. One would
have thought that
this was the last place that one would keep money
which had been obtained from a lawful source, if for no other reason
that one
would not want the risk that the bank notes might be burnt.
While it could be suggested that this was to mislead potential
thieves while the property was unoccupied, the money was allegedly
kept in the same place after the First Respondent had returned
from
holiday.
[f]
Two further bags of money were found in a
bin outside the premises, also having been allegedly left there since
November of the
previous year. Once again, it seems
inconceivable that so large a sum of money, which had been lawfully
obtained from a reputable
source, would be dealt with in so cavalier
a fashion.
[g]
The fact is that it is difficult to accept
that with crime as it is in South Africa, almost a quarter of a
million rand, which had
been earned by way of lawful activities,
would be kept in cash and unbanked for an extended period of time, in
the circumstances
such as those described by the Respondents.
[h]
The Respondents argued that the cash
belonged to the Second Respondent and was the proceeds of its lawful
activities. However,
apart from bald denials, these allegations
were not substantiated in the Respondent’s Opposing Affidavit.
In
fact, this issue was addressed as part of the Applicant’s
founding papers, and the Applicant attached copies of the invoices
which the SAPS had received from the First Respondent, but no
argument to substantiate how these invoices supported the
Respondents’
case was addressed to the Court and I was not able
to substantiate how the amount of R232 051,20 came to be in the
First Respondent’s
possession from these documents. In
any event, if the sum of R232 051,20 was earned by way of lawful
activities there
must be a substantial body of evidence to
substantiate this - none of which was produced by the Respondents as
part of their Opposing
Affidavit.
[31]
In its Founding Affidavit, the Applicant
alleged that the First Respondent is a well-known drug dealer.
However, no facts
to substantiate this allegation were put up by the
Applicant. What there is, is the fact that 11 bags of
dagga found
in the First Respondent’s car together with
R20 000,00 and no explanation for the presence of that money in
those circumstances
was advanced by the Respondents.
Furthermore, the First Respondent has paid a number of admission of
guilt fines in respect
of possession of drugs.
[32]
In terms of Section 38(2) of POCA, the
Applicant is only obliged to establish that there are reasonable
grounds to believe
that the property concerned is the proceeds of
unlawful activities. The Applicant does not have to prove, at
this stage of
the proceedings precisely what those unlawful
activities are.
[33]
The fact is that it is notorious that
unlawfully dealing in drugs will inevitably generate large amounts of
cash. Not only
that, but there are a number of other unlawful
activities which would give rise to the accumulation of large amounts
of cash.
When this is viewed against the strange circumstances
in which the cash was found and the fact that the Respondents failed
in their
opposing affidavit to answer these allegations, I am of the
view that the Applicant has discharged the onus on it in terms of
Section 38(2)
of POCA.
[34]
The Respondents in their Heads of Argument
raised a number of specific defences, namely that:
[a]
The Applicant was not entitled to proceed
by way of urgency. However, the Applicant did not purport to
proceed by way of urgency.
The Applicant proceeded
by way of an
ex parte
application in accordance with the
procedure expressly sanctioned by Section 38(1) of POCA.
[b]
The Respondents complained that the
Applicant proceeded in terms of POCA with a view to defeating the
Respondents’ spoliation
application.
However, it is not
apparent what else the Applicant should have done when faced with the
spoliation application. In any event,
the Applicant exercised
its rights in terms of POCA to obtain an order authorising it to
retain the property. The spoliation
application in and of
itself is no bar to this application.
[c]
The Respondents referred to and relied upon
Sections 25, 26 and 28 of POCA.
However, those sections
are sections which have application to restraint orders, which are
dealt with in Part 3 of POCA.
This application is an
application in terms of Section 38 of POCA which forms part of
Chapter 6 of POCA. In these
circumstances, the
Respondents’ reliance on those sections does not assist them.
[35]
The Applicant has furnished the Court with
a draft order which sets out the relief which it seeks.
Surprisingly, that draft
order did not make provision for the
Respondents to pay the costs occasioned by their opposition to this
application, which order
I would otherwise have made.
[36]
In the circumstances, an order is made in
terms of the draft order annexed hereto marked “X”.
MACWILLIAM AJ
APPEARANCES
For
the Applicant: Adv. M P Getye
Instructed
by: State Attorneys, Cape Town
For
the Respondents: Adv. D Houze
Instructed
by: Tobin Attorneys & Associates, Cape Town
[1]
2003
(4) SA 1
(CC) at [17] p. 9H-I
[2]
[2008]
4 All SA 275
(C)