Summary of Judgment

1. Introduction

The judgment concerned two interrelated applications arising from the police seizure of cash. The main application was brought by Mr William R Petersen (the applicant) against the Minister of Police and the Station Commander, Mitchells Plain SAPS (the respondents) seeking an order directing the police to release cash seized from him. The related application was brought by the National Director of Public Prosecutions (NDPP), who sought to intervene in the main application and to obtain a preservation of property order under section 38 of the Prevention of Organised Crime Act 121 of 1998 (POCA) in respect of (i) the cash seized on 30 April 2019 and (ii) a further sum seized in December 2015.

The procedural context was that the cash had been seized during a police raid and retained for an extended period. By the time the matters were argued, Mr Petersen was no longer legally represented (having previously filed papers, including opposition in the POCA preservation proceedings) and appeared in person.

The general subject-matter of the dispute was whether the police were entitled to retain the seized cash under the Criminal Procedure Act 51 of 1977 (CPA) in circumstances where no criminal proceedings had been instituted, and whether—independently of any criminal prosecution—the NDPP had made out a case for the civil preservation of the cash pending contemplated forfeiture proceedings under POCA.

2. Material Facts

On 30 April 2019, the Cape Town Metro Police conducted a raid at the home of Mrs Josephs in Mitchells Plain while searching for guns and drugs. Instead of those items, they found cash in excess of R400 000 stored in a safe and a shoebox. The money was seized under the CPA. The judgment recorded that the amount initially claimed in the litigation was R480 000, but that through “various stages” it had diminished to R396 000, a feature the court noted as a concern (without resolving that issue).

It was common cause that Mrs Josephs told the Metro Police that the cash belonged to Mr Petersen, and that she was keeping it at his request because he allegedly intended to use it to buy a surprise birthday present for his wife. It was also common cause that after the seizure at Mrs Josephs’ premises, the police searched Mr Petersen’s home in Parow in his absence and allegedly found trace amounts of what was said to be Mandrax, as well as plastic bags and a sealing machine used to seal bags.

After the raids, Mr Petersen (through his attorney at the time) claimed the seized funds and stated that the money was the proceeds of his business of buying and selling used vehicles. He asserted he kept substantial cash because his business required ready access to funds on short notice and he could not achieve the same access if the money were banked. The judgment further recorded that Mr Petersen later provided an additional explanation that part of the money was intended for the purchase of a vehicle as a gift for his wife, aligning with Mrs Josephs’ account.

The respondents (the police) opposed the return of the money despite being unable to rely on pending criminal charges against Mr Petersen. At the hearing, counsel for the police confirmed that no criminal charges had been instituted against him as at that date. The police nonetheless relied on the possibility of future criminal proceedings and also referred to contemplated POCA proceedings, including an investigation (described in general terms) into alleged money laundering and proceeds of drug dealing.

In addition to the April 2019 seizure, the NDPP sought preservation of R6 000 seized on 7 December 2015. The judgment recorded that in 2015 the police had conducted surveillance, observed Mr Petersen interacting with another person, and on approaching allegedly found the cash in the vehicle together with Mandrax tablets. The other individual was said to be deceased by the time of the present proceedings. In his opposing affidavit in the POCA matter, Mr Petersen stated that the R6 000 did not belong to him and he did not oppose its preservation.

A further set of facts material to the preservation enquiry was Mr Petersen’s history of drug-related charges over approximately three decades. The court accepted that he had a “chequered history”, with a conviction in 1992, and that subsequent charges (including since 2015) had not resulted in convictions, despite references in the papers to substantial quantities of illegal drugs being found in his possession in those later matters.

3. Legal Issues

The court was required to determine, first, whether the police were entitled to continue retaining the seized cash under section 31(1)(a) of the CPA in circumstances where no criminal proceedings had been instituted and there was no concrete basis that the cash was required for evidence or for an order in criminal proceedings. This issue primarily concerned the interpretation and application of statutory provisions to largely common-cause procedural facts (notably the absence of criminal proceedings and the passage of time), coupled with an evaluative assessment of whether future charges were likely.

Second, the court was required to determine whether the NDPP had established a basis for a preservation order under section 38 of POCA, which the court approached as requiring an assessment of whether there were reasonable prospects that the State could ultimately prove the money constituted proceeds of crime, justifying preservation pending forfeiture. This entailed an application of law to fact together with an evaluative judgment about the plausibility of Mr Petersen’s explanations, the inferences arising from the circumstances of possession and storage of the cash, and the significance of his criminal history and the alleged drug-dealing paraphernalia.

A further issue, arising at the level of outcome and remedy, was how the two applications interacted: even if the police could not lawfully retain the cash indefinitely under the CPA, the court still had to decide whether the money should be returned to Mr Petersen or instead be preserved under POCA.

4. Court’s Reasoning

In dealing with the main application for return of the money, the court focused on section 31(1)(a) of the CPA, which provides that if no criminal proceedings are instituted in connection with an article (or if it appears the article is not required at trial for evidence or a court order), the article must be returned to the person from whom it was seized, provided that person may lawfully possess it. The court considered the length of time since the seizure—21 months—and the fact that no criminal charges had been instituted.

On the facts, the court formed the view that criminal charges were unlikely ever to eventuate. The court’s assessment drew support from Mr Petersen’s history: although he had faced various drug-dealing charges over many years, he appeared to have been convicted only once (in 1992), and later cases since 2015 had come to nothing. In the court’s evaluation, these features, taken with the long delay, made it improbable that criminal proceedings would follow from the April 2019 seizure.

The court held that, on its reading of section 31, the police had no authority to retain the money indefinitely or permanently if a trial was not forthcoming. The court noted further that cash is not an item that cannot be lawfully possessed (unlike illegal substances or an unlicensed firearm), and therefore section 31(1)(b) was not implicated on the basis advanced in argument. The court stated that it was fortified in this view by the decision in Five Star Properties, referred to as supporting the proposition that sections 20 and 31 of the CPA do not entitle the police to hold property indefinitely unless the statutory requirements are met.

The court then turned to the NDPP’s preservation application. It accepted that preservation and forfeiture proceedings under POCA are civil in nature and do not depend on the existence of pending or past criminal proceedings as a jurisdictional requirement. The key question was whether the State had shown sufficient basis, as framed in the judgment, to justify preservation on the footing that the money was likely to be established as proceeds of unlawful activities.

In assessing the NDPP’s case, the court weighed Mr Petersen’s explanations for the cash against the surrounding circumstances. Several factors were treated as pointing away from the credibility of Mr Petersen’s version and towards the inference that the cash represented proceeds of crime. The court considered Mr Petersen’s longstanding involvement in drug dealing allegations and regarded his claimed rehabilitation as not borne out by the subsequent bringing of drug-dealing charges, even if those matters had not resulted in convictions. The court also considered the drug-dealing paraphernalia allegedly found during the April 2019 search (plastic bags and a sealing machine), and found Mr Petersen’s explanation for their presence unconvincing.

The court further reasoned that the size of the cash sum was not adequately explained by the applicant’s asserted car-trading business. The court noted that the evidence tendered of vehicle buying and selling was limited to only two vehicles over a long period, which the court considered inconsistent with the need to keep roughly R400 000 in cash. The court was also not persuaded by the explanation that the money could not be accessed through a bank. In addition, even accepting a preference for cash, the court regarded it as inadequately explained why Mr Petersen would keep such a large sum with a friend approximately 23 kilometres from his home rather than at his own residence.

The court also attached weight to what it characterised as shifting explanations for the purpose of the money: first, a business-cash explanation, and later an explanation incorporating the purchase of a birthday gift for his wife. From these circumstances, the court drew the inference that the cash was kept away from Mr Petersen’s home to avoid discovery in a police raid and was not banked to avoid creating a money trail for investigators. On this evaluative assessment, the court concluded that a preservation order should be granted in respect of the R396 000.

Regarding the R6 000 seized in 2015, the court held there was no impediment to granting preservation, particularly because Mr Petersen stated the money did not belong to him and he did not oppose preservation in respect of that amount.

Finally, the court considered costs and the broader conduct of the matter. Although it dismissed Mr Petersen’s return application, it made no costs order against him in that application. The court reasoned that the police’s reliance on section 31 did not succeed on its own terms, and in the court’s view criminal proceedings were never a realistic possibility. The court described the practical reality as the police holding the funds almost as an agent for the NDPP while awaiting POCA proceedings. It indicated that such an arrangement might be lawful for a short period, but emphasised that the police lack authority to hold property indefinitely where no criminal case will follow and the delay is merely to allow the Asset Forfeiture Unit to prepare civil proceedings. The court remarked that such matters should be pursued far more expeditiously, and expressed the view that the Asset Forfeiture Unit ought to have approached the court within months, potentially on an ex parte basis if necessary.

5. Outcome and Relief

The court dismissed Mr Petersen’s application for return of the seized money, but made no order as to costs in that application.

The court granted the NDPP’s application for a preservation order in respect of the seized monies, namely the R396 000 (seized on 30 April 2019) and the R6 000 (seized in December 2015), in the form of the draft order presented by counsel for the NDPP.

Cases Cited

Five Star Properties (as referred to in the judgment; the full law report citation was not provided in the text of the judgment)

Legislation Cited

Criminal Procedure Act 51 of 1977, section 20; section 30(c); section 31(1)(a); section 31(1)(b)

Prevention of Organised Crime Act 121 of 1998, section 38

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, given the absence of instituted criminal proceedings after a lengthy period and the unlikelihood of future prosecution, the police could not rely on the CPA to justify retaining the seized cash indefinitely. However, the court further held that the NDPP established sufficient basis, on the facts and inferences accepted by the court, for a civil preservation order under POCA in respect of the R396 000 seized in April 2019, and that preservation should also be granted in respect of the R6 000 seized in December 2015, particularly as Mr Petersen disclaimed ownership of that amount.

LEGAL PRINCIPLES

The judgment applied the principle that sections 20 and 31 of the Criminal Procedure Act 51 of 1977 do not entitle the police to retain seized property indefinitely in the absence of criminal proceedings or a demonstrated need for the property for purposes of evidence or a court order in such proceedings. Where no criminal proceedings are instituted, and the article is not required for those purposes, section 31(1)(a) contemplates return of the article to a person who may lawfully possess it.

The judgment further applied the principle that POCA preservation and forfeiture proceedings are civil in nature and are not dependent, as a jurisdictional prerequisite, on pending or concluded criminal proceedings. The court approached the preservation enquiry on the basis that the State must show a sufficient foundation—described in the judgment as reasonable prospects of ultimately proving that the property constitutes proceeds of unlawful activities—to justify preservation pending forfeiture.

In applying these principles, the court treated the credibility and consistency of explanations for possession of large cash sums, the objective circumstances of concealment or storage, the presence of items associated with drug dealing, and the person’s relevant history as factors capable of supporting an inference that cash is linked to unlawful activity for the purposes of preservation under POCA.