National Director of Prosecutions v van Rensburg (7523/19) [2021] ZAWCHC 14 (5 February 2021)

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[2021] ZAWCHC 14
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National Director of Prosecutions v van Rensburg (7523/19) [2021] ZAWCHC 14 (5 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE NO: 7523/19
In
the matter between:
THE
NATIONAL DIRECTOR OF PROSECUTIONS
Applicant
and
WILLIE
JAKOBUS VAN RENSBURG
Defendant
In
re : Application in terms of
s18(1)
of the
Prevention of Organised
Crime Act, 121 of 1998
Bench: P.A.L.GAMBLE
Heard: 26 February, 3 December 2019
Delivered: 5 February 2021.
This judgment was handed down
electronically by circulation to the parties' representatives via
email and release to SAFLII. The
date and time for hand-down is
deemed to be 10h00 on Friday 5 February 2021.
JUDGMENT
GAMBLE,
J:
INTRODUCTION
1.
On 5 September 2017 the
defendant was convicted (along with 4 others) of a series of offences
arising from his involvement in the
illegal exporting of abalone,
including a contravention of s2(1)(e) of the Prevention of Organized
Crime Act, 121 of 1998 (“POCA”).
On 19 March 2018 the
defendant was sentenced to an effective 8 years’ imprisonment
and subsequent thereto his applications
for leave to appeal his
conviction and sentence were refused by this court and the Supreme
Court of Appeal.
[1]
2.
During sentencing proceedings in this
court, the applicant launched an application in terms of s18 of POCA
for a confiscation order
in respect of certain of the defendant’s
property that was alleged to be the proceeds of crime. On 6 February
2018 this court
made an order authorizing the institution of that
application and setting a timetable for the filing of papers and the
hearing
of the application.
3.
At that stage, the defendant was
represented by counsel who had appeared for him in the trial, Adv.
D.A.J.Uijs SC on the instructions
of Legal Aid South Africa, while
the applicant has been represented throughout by Adv. M.P.Getye of
the Asset Forfeiture Unit (“the
AFU”) of the applicant.
Subsequent to being sentenced and since late May 2018, the defendant
has been represented by Adv.
H.F. van Zyl SC on the instructions of
DGF Attorneys of Bellville.
4.
This inquiry was
originally set down for hearing on 15 June 2018 but was postponed by
agreement between the parties because at that
stage the defendant’s
application for leave to appeal was still pending before the SCA. The
applicant thereafter filed a
set of supplementary papers while the
defendant also supplemented his papers and lodged a detailed
affidavit deposed to by his
wife Ms. Kim Gabrielle Jaak van Rensburg
(“Ms. van Rensburg”)
[2]
on 31 January 2019. Ms. van Rensburg filed a supplementary affidavit
dated 4 February 2019, in which she sought to clarify certain
aspects
of her earlier affidavit.
5.
In terms of s18(1) of
POCA the court which convicted the accused is required to deal with
any confiscation application which is
said by the statute to be
adjunct to the sentence imposed in the matter. The rationale behind
the trial court hearing the application
is because that court has a
full understanding of the issues at hand and, importantly, since it
is familiar with the evidence adduced
at the trial it is not required
of a new court to have to read the record of proceedings, which in
this case runs to more than
11 000 pages
[3]
.
6.
The confiscation application was
accordingly heard by this court on 26 February 2019 whereafter
judgment was reserved. During argument
Mr. van Zyl SC made
submissions on behalf of the defendant, Ms. van Rensburg and the
parties’ two minor children, all of
whom were said to be
effected by the order sought by the applicant under s18. Pursuant to
the submissions made at that hearing,
the Court made a ruling and
issued a set of directions requiring the defendant and Ms. van
Rensburg to deal with the Court’s
queries by way of further
affidavits. For the sake of convenience, that ruling is attached
hereto as Annexure A.
7.
After the parties had complied with the
Court’s directions, there was a further hearing of the matter
on 3 December 2019.
The Court was still not satisfied with the
information placed before it and on 9 March 2020, a second ruling
(Annexure B hereto)
was issued. On 1 June 2020 the defendant filed a
further affidavit pursuant to that ruling, to which the applicant did
not reply.
Thereafter the parties filed supplementary heads of
argument and confirmed to the Court in chambers on 4 February 2021
that there
were no further submissions that either side wished to
make.
8.
It is appropriate therefore to deliver a
final judgment on the applicant’s application so as to bring
this matter to finality.
For the purposes of this judgment the
factual findings referred to in Annexures A and B hereto will be
relied upon as if incorporated
herein.
FINAL DETERMINATION OF DEFENDANT’S ASSETS
9.
In his affidavit of 1 June 2020, the
defendant explained the movement of his loan account in Sea Point
Sidewalk CC (“SPS”)
as directed by the Court in its
ruling of 9 March 2020. This explanation confirms the concession made
by Mr. van Zyl SC on his
behalf in December 2019 that the only
cognizable asset which the defendant presently possesses is his loan
account in SPS in the
sum of R160 000,00. The applicant did not
file any further affidavits in reply to the defendant’s
explanation of 1 June
2020 and it appears that it now accepts his
explanation of the movement in his loan account.
10.
There is thus no countervailing evidence
from the applicant to suggest that the defendant has any realizable
assets other than the
loan account. Although these proceedings are
inquisitorial in nature and there is thus no onus on either party,
they remain motion
proceedings and in the absence of any referral of
the matter for oral evidence, the defendant’s version must
stand unless
it does not raise a genuine dispute of fact.
11.
In
Wightman
[4]
the Supreme Court of Appeal restated the approach to the
determination of facts in motion proceedings as follows.
“
Recognising that the truth
almost always lies beyond mere linguistic determination the courts
have said that an applicant who seeks
final relief on motion must in
the event of conflict, accept the version set up by his opponent
unless the latter’s allegations
are, in the opinion of the
court, not such as to raise a real, genuine or bona fide dispute of
fact or are so far-fetched or clearly
untenable that the court is
justified in rejecting them merely on the papers: Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E-635C. See also the analysis by Davis J in Ripoll-Dausa v
Middleton NO
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C) at 151A-153C with which I
respectfully agree. (I do not overlook that a reference to evidence
in circumstances discussed in
the authorities may be appropriate.)”
12.
In the present circumstances, I am unable
to conclude that the version put up by the defendant is not real or
bona fide. Furthermore,
the applicant has had sufficient opportunity
for its accounting experts to assess the relevant documentation and
explanations relevant
thereto and it has been unable to gainsay the
defendant’s version. I therefore conclude that the only asset
possessed by
the defendant which is capable of confiscation under s18
of POCA is the sum of R160 000,00 which stands to his credit in
the
books of SPS.
13.
Accordingly, the applicant is entitled to
an order under s18(1)(c) of POCA that the defendant be directed to
pay the sum of R160 000,00
to the State.
COSTS
14.
Mr. van Zyl asked the court to consider
granting a costs order against the applicant in favour of Ms. van
Rensburg in light of the
fact that she was obliged to come to court,
file affidavits and advance submissions through counsel in order to
protect her property
and that of her children. It was suggested that,
had the applicant’s investigators conducted a proper enquiry,
the true state
of affairs would have been apparent to them and they
would not have pursued the matter against the defendant in such a
manner as
to potentially compromise Ms. van Rensburg’s assets.
In effect the argument is that her opposition to the application was

reasonable in the circumstances and that she should not be out of
pocket as a consequence thereof.
15.
Mr. Getye submitted that the applicant had
been substantially successful and that the ordinary rule in respect
of costs should apply.
I did not understand Mr. Getye to suggest that
costs should be awarded in favour of the applicant – it
incurred no costs
since it was represented by a salaried employee in
these proceedings and its investigators, too, are salaried employees.
Rather,
Mr. Getye’s argument was directed at suggesting that
there was no basis for a costs order in favour of Ms. van Rensburg in

light of the fact that the applicant had achieved substantial success
in these proceedings.
16.
True, the applicant has been successful in
recovering a sum of money from the defendant but whether that may be
termed substantial
in light of the fact that it originally set out to
prove a claim of more than R43m, is open to debate. As I observed in
the ruling
of 25 April 2019, it was common cause by that date that
the award that this Court could make was capped at R7,125m and the
measurement
of success would have to be evaluated against that
figure.
17.
In
my view, the Court should have regard to the fact that the evidence
deposed to by Ms. van Rensburg in mitigation of sentence
was
inaccurate, to say the least, and had the effect of misleading the
applicant’s investigators and the Court in this enquiry.
This
resulted in the Court having to direct further enquiries which the
defendant and his wife were obliged to answer, thereby
incurring
legal expenses in the process. If the matter is viewed from that
angle then it could be said that Ms. van Rensburg was
the author of
her own misfortune.
18.
In
s18 POCA proceedings the ordinary rules which apply to civil
proceedings are applicable
[5]
and so an order for costs will follow a similar approach with the
court exercising its customary discretion having regard to all

relevant circumstances.
[6]
In my view, a just result in this matter will be to make no order as
to costs.
ORDER OF COURT
Accordingly, it is ordered that:
A.
The defendant is to pay the sum of
R160 000,00 (One Hundred and Sixty Thousand Rands Only) to the
State within 60 calendar
days of this order;
B.
There will be no order as to costs.
__________________
GAMBLE, J
ANNEXURE A
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO: SS13/12
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
WILLIE
JAKOBUS VAN RENSBURG
Defendant
Coram:
P.A.L.Gamble, J
Date
of Hearing: 26 February 2019
Date
of Ruling: 25 April 2019
RULING
DELIVERED ON 25 APRIL 2019
GAMBLE,
J:
INTRODUCTION
19.
On 5 September 2017 the
defendant was convicted (along with 4 others) of a series of offences
arising from his involvement in the
illegal exporting of abalone,
including a contravention of s2(1)(e) of the Prevention of Organized
Crime Act, 121 of 1998 (“
POCA
”).
On 19 March 2018 the defendant was sentenced to an effective 8 years’
imprisonment and subsequent thereto his applications
for leave to
appeal his conviction and sentence were refused by this court and the
Supreme Court of Appeal (“
the
SCA
”).
[7]
20.
During sentencing proceedings in this court
the applicant launched an application in terms of s18 of POCA for a
confiscation order
in respect of certain of the defendant’s
property which was alleged to be the proceeds of crime. On 6 February
2018 this
court made an order authorizing the institution of that
application and setting a timetable for the filing of papers and the
hearing
of the application.
21.
At that stage the defendant was represented
by counsel who had appeared for him in the trial, Adv. D.A.J.Uijs SC
on the instructions
of Legal Aid South Africa, while the applicant
has been represented throughout by Adv. M.P.Getye of the Asset
Forfeiture Unit (“
the AFU
”).
Subsequent to being sentenced and since late May 2018, the defendant
has been represented by Adv. H.F. van Zyl SC on the
instructions of
DGF Attorneys of Bellville.
22.
This inquiry was
originally set down for hearing on 15 June 2018 but was postponed by
agreement between the parties because at that
stage the defendant’s
application for leave to appeal was still pending before the SCA. The
applicant thereafter filed a
set of supplementary papers while the
defendant also supplemented his papers and lodged a detailed
affidavit deposed to by his
wife Ms. Kim Gabrielle Jaak van Rensburg
(“
Ms. van
Rensburg
”)
[8]
on 31 January 2019. Ms. van Rensburg filed a supplementary affidavit
dated 4 February 2019, in which she sought to clarify certain
aspects
of her earlier affidavit.
23.
In terms of s18(1) of
POCA the court which convicted the accused is required to deal with
any confiscation application which is
said by the statute to be
adjunct to the sentence imposed in the matter. The rationale behind
the trial court hearing the application
is because that court has a
full understanding of the issues at hand and, importantly, since it
is familiar with the evidence adduced
at the trial it is not required
of a new court to have to read the record of proceedings, which in
this case runs to more than
11 000 pages
[9]
.
24.
The confiscation application was
accordingly heard by this court on 26 February 2019 whereafter
judgment was reserved. During argument
Mr. van Zyl SC made
submissions on behalf of the defendant, Ms. van Rensburg and the
parties’ 2 minor children, all of whom
were said to be effected
by the order sought by the applicant under s18. The court is indebted
to counsel for their heads of argument
and oral submissions in court.
THE PURPOSE OF A CONFISCATION ENQUIRY
25.
The purpose of an application such as this,
which resorts under Chapter 5 of POCA, is to procure a civil judgment
against a convicted
person for payment of a monetary award in favour
of the State. It is not an application for the preservation and
surrender of any
particular asset of the convicted person as is
contemplated in Chapter 6 of POCA. Rather, the purpose of such a
confiscation order
is –
“
..
aimed
at depriving... [POCA]…offenders of the proceeds of their
criminal conduct. Its purposes are to punish convicted offenders,
to
deter the commission of further offences and to reduce the profits
available to fund further criminal enterprises. These objectives

reflect not only national but also international policy.
[10]
”
26.
While it is referred to
as a confiscation order the process does not contemplate the
attachment and subsequent disposal of any particular
asset belonging
to the convicted person. As the Supreme Court of Appeal noted in
Rebuzzi
[11]
“
the primary object of a
confiscation order is not to enrich the State but rather to deprive
the convicted person of ill-gotten gains.”
27.
In
Shaik
O’Regan ADCJ stressed that the
confiscation process is constitutionally permissible.
“
[52]    From
this primary purpose, two secondary purposes flow. The first is
general deterrence: to ensure that people
are deterred in general
from joining the ranks of criminals by the realisation that they will
be prevented from enjoying the proceeds
of the crimes they may
commit. And the second is prevention: the scheme seeks to remove from
the hands of criminals the financial
wherewithal to commit further
crimes. These purposes are entirely legitimate in our constitutional
order…
[57]
In my view, understanding the purposes of ch 5 of the Act is best
done on the terms of ch 2 of
our Constitution and our own
legislation. Upon a proper construction of [POCA], I am not persuaded
that a primary purpose of ch
5 is the punishment of offenders. Its
primary purpose seems rather to be to ensure that criminals cannot
enjoy the fruits of their
crimes. It may well be that the achievement
of this purpose might at times have a punitive effect, but that is
not to say that
the primary purpose is punitive.”
CONSIDERATIONS RELEVANT TO THE EXERCISE OF THE
DISCRETION UNDER SECTION 18 OF POCA.
28.
O’Regan ADCJ went on to note that
there is a fundamental difference between the purposes of a
confiscation order under Chapter
5 of POCA and the confiscation of
any instrumentality of crime under Chapter 6. It is not necessary to
consider those differences
for the purposes of this judgment other
than to note that care should be taken not to apply the jurisprudence
which has developed
under Chapter 6 to Chapter 5 cases.
29.
The learned Justice made the following
observations in relation to Chapter 5 cases.
“
[69]
First, a court considering what will constitute an appropriate amount
as contemplated by s18 will have regard
to all the circumstances of
the criminal activity concerned. Secondly, in considering what would
be appropriate, a court will bear
in mind that the definition of
‘proceeds of unlawful activities’ in the Act makes it
possible to confiscate property
that has not been directly acquired
through the commission of crimes. It also makes it possible to
confiscate property that has
been acquired not through crimes of
which the defendant has been convicted, but through related criminal
activity. One of the key
considerations a court will take into
account will be the extent to which the property to be confiscated
derived directly from
the criminal activities. In most circumstances
it will be entirely appropriate that all direct profits of crimes of
which the defendant
has been convicted be confiscated. So, a bank
robber caught red-handed in possession of R50 million which he or she
has just stolen
from the bank may quite appropriately be required to
pay that money back. In the circumstances, the primary purpose of the
Act
- to ensure that a criminal does not enjoy the fruits of his or
her crime - will be directly served.
[70]
On the other hand, the more removed the deprivation of the property
from the commission of the
offence, the less likely it may be that it
will be appropriate to order the full confiscation of the property.
In taking this consideration
into account, however, a court must take
care to remember that often criminals do seek to disguise the profits
of their crime.
One of the purposes of the broad definition of
‘proceeds of unlawful activities’ is to ensure that wily
criminals do
not evade the purposes of the Act by a clever
restructuring of their affairs.
[71]
A third consideration relevant to determining what constitutes an
‘appropriate’ amount
will be the nature of the crimes
that fall within the express contemplation of the Act. The closer the
crimes or criminal activity
concerned to the ambit of organised
crime, the more likely it will be that the appropriate amount will
constitute all the proceeds
of the unlawful activities as defined in
the Act. The reason for this is that the larger the value of a
confiscation order, the
greater the deterrent effect of such an
order. The Act clearly seeks to impose its greatest deterrent effect
in the area of organised
crime; and so where organised crime is
involved, the purpose of general deterrence will often be best
achieved by a maximum confiscation
order, although of course that
will always be subject to a full consideration of all the relevant
circumstances. In asserting this
principle, too, it is important to
bear in mind the difficulty of prosecuting organised crime
successfully as is noted in the preamble
to the Act. The difficulties
are many. To name just one, crime syndicates are often organised in a
manner that makes it possible
for senior members of the syndicate to
evade prosecution, because many of the crimes committed are committed
by junior members
of the syndicate.”
30.
It is common cause that the extent of any
s18 order which this court may make is limited to the sum of R7,125m.
That figure is the
alleged benefit which accrued to the defendant as
a consequence of his involvement in the abalone smuggling ring of
which he has
been convicted and is arrived at by calculating the
volume of the abalone involved (28,5 tons of frozen abalone) at the
applicable
erstwhile rate of R250/kg. Both the volume of abalone and
the rate were accepted by Mr. van Zyl SC as correct for the purposes
of this application.
THE STRUCTURE OF THESE PROCEEDINGS
31.
In terms of ss13(1) and (5) of POCA
proceedings such as these are of a civil nature and the State is
required to establish its application
on a balance of probabilities
while s18(1) expressly prescribes that the nature of the proceedings
is an enquiry.
“
18
.
Confiscation orders.
(1) Whenever a defendant is convicted of an offence
the court convicting the defendant may, on the application of the
public prosecutor,
enquire into any benefit which the defendant may
have derived from-
(a)
that offence;
(b)
any other offence of which the defendant has been convicted at the
same trial; and
(c)
any criminal activity which the court finds to be sufficiently
related
to those offences, and, if the court finds that the defendant
has so benefited, the court may, in addition to any punishment which

it may impose in respect of the offence, make an order against the
defendant for the payment to the State of any amount it considers

appropriate and the court may make any further orders as it may deem
fit to ensure the effectiveness and fairness of that
order.
32.
In
Ramlutchman
[12]
the SCA observed that there was no question of the State bearing any
onus in such an enquiry and that the presiding officer was
duty bound
to intervene in the enquiry if necessary and, for example, call for
further evidence or hear further submissions from
interested parties
in order to exercise the wide powers which POCA confers on the
convicting court to make orders that are effective
and fair in the
circumstances.
33.
As s18(1) directs, the
focus of the enquiry is to establish whether the convicted person has
received any benefit arising out of
the crime(s) in question or any
other criminal activity sufficiently closely linked to such crimes.
To establish whether there
has been any such benefit one looks,
firstly, to s12(3)
[13]
and then to s1 of POCA for the definition of what constitutes the
proceeds of such unlawful activities.
[14]
34.
The aforesaid definition of unlawful
activities is cast in wide language and is designed to encompass any
–
·
property
·
service
·
advantage
·
benefit, or
·
reward
which has been –
·
derived
·
received, or
·
retained
directly or indirectly, in the Republic or elsewhere,
before or after the commencement of POCA –
·
in connection with,
·
or as a result of
any
unlawful activity
carried out by
any
person and includes
any property “representing” (i.e. which has replaced) the
original property. One cannot conceive
of a definition which has much
wider import than this and it is apparent that it was the intention
of the Legislature to give the
courts the wide powers required to
achieve one of the cornerstones of POCA, namely that “
(t)
he purpose of confiscating proceeds of crime is to ensure that
criminals realize that they cannot benefit from the ill-gotten
gains
and that crime does not pay.
”
[15]
35.
Finally, in deciding what property is
capable of confiscation under Part 2 of Chapter 5, s14 is also of
wide compass, incorporating
–
·
any property held by the convicted
person; and
·
any property
held by a person to whom the accused has made, directly or
indirectly, an “
affected
gift
” as
defined in s12(1) of POCA.
[16]
36.
Presently, and subject to what is set forth
hereunder, the defendant does not appear to personally own or control
any assets of
substance. There are, however, instances where the
defendant has disposed of his interest in corporate entities in
favour of his
wife (which ultimately accrued for the benefit of his
minor children) at times which may or may not be relevant in relation
to
the progress of the criminal case brought against him. The nature
of these dispositions fall to be considered in the context of
whether
they constitute affected gifts as defined and/or property
representing such affected gifts, as contemplated under the
definition of the proceeds of unlawful activities.
THE ASSETS SOUGHT TO BE CONFISCATED
37.
In presenting her case to the court, the
applicant has relied on an affidavit made by Mr. Deon de Jager which
serves as the prescribed
statement made in terms of s21 of POCA. Mr.
de Jager says that he is a captain in the SA Police Service with 29
years’ experience
as an investigator into general and organized
crime and has been designated as the financial investigator in this
matter. As alluded
to above, Mr. de Jager’s first affidavit was
deposed to on 19 February 2018. After the defendant had filed an
answering affidavit
dated 11 May 2018, Mr. de Jager conducted certain
further investigations and deposed to a supplementary affidavit on 10
January
2019. Thereafter, the defendant signed a supplementary
answering affidavit on 19 January 2019 while Ms. van Rensburg deposed
to
an affidavit on 31 January 2019 in which she sought to protect her
own proprietary interests and those of her minor daughters, aged
13
and 10. As noted above, this affidavit was supplemented on 4 February
2019.
38.
In his first affidavit, Mr. de Jager lists
the defendant’s interests in property in 3 distinct categories
– immovable
property, movable property and an interest in
certain businesses.
Immovable property
39.
In the founding statement of 19 February
2018 Mr. de Jager refers to 2 immovable properties in which he says
the defendant had an
interest, namely Erf 93, Gansbaai on which a
shopping centre is located in Main Road, Gansbaai, and Erf 797,
Hermanus which similarly
incorporates a shopping centre in central
Hermanus. Both properties are owned by a close corporation, Infoteam
Investments 66 CC
(“
Infoteam
”).
40.
Then, in his supplementary statement of 10
January 2019 Mr. de Jager states that he conducted further searches
and established that
there were a further 3 properties in Gansbaai
owned by Infoteam – Erven 119, 120 and 2925. In that
supplementary statement,
Mr. de Jager also refers to 11 sectional
title units in a sectional title scheme in Goodwood acquired by Ms.
van Rensburg on 23
October 2010. Lastly, in the supplementary
statement Mr. de Jager refers to Erf 1737 Gansbaai which was
purchased on 3 May 2018
and registered in the name of an entity
called Sea Point Sidewalk CC (“
SPS
”).
Movable Property
41.
Mr. de Jager lists 4 vehicles which he says
are owned by the defendant-
·
An Isuzu KB 280 bakkie, with
registration number CEM […];
·
An Opel Corsa bakkie, CEM […];
·
A trailer, CEM […]; and
·
A Mercedes Benz ML 63 SUV, CA […].
The Mercedes is registered in the name of Infoteam and
the other vehicles are registered in the name of the defendant
personally.
Interests in Businesses
42.
Having conducted a companies’ search,
Mr. de Jager says in the founding statement that he established that
the defendant originally
(on 24 January 2003) held 100% of the
members’ interest in Infoteam. Later, (on 23 August 2004) Ms.
van Rensburg acquired
50% of that interest and eventually (on 1
February 2007) she acquired the entire 100% thereof.
43.
In the supplementary statement, Mr. de
Jager says that a further companies’ search revealed that on 21
June 2005 the defendant
acquired 100% of the members’ interest
in Sea Point Sidewalk CC (“
SPS
”).
When the defendant resigned as the sole member of SPS on 3 March
2015, Ms. van Rensburg acquired the entire members’
interest.
Mr. de Jager says that on 1 December 2015 Ms. van Rensburg gave up
her membership in SPS in favour of the parties’
2 daughters who
then held 50% each
I shall deal with the various assets separately
commencing with the movables.
MOVABLES
44.
During the criminal proceedings it was said
by the witness Salvin Africa that the defendant drove a Mercedes Benz
motor vehicle
at some stage while the witness A.J.Theunissen
recounted how the defendant and the erstwhile accused no 5, Mr.
Liebenberg, arrived
together at his premises on more than one
occasion in 2006 driving a Mercedes Benz ML class SUV. It is not
clear in whose name
the latter vehicle was registered.
45.
In the founding statement Mr. de Jager
dealt with the 4 vehicles referred to above and attached the relevant
licensing documents
which track their registration. These reflect
that –
·
the trailer, CEM […], was
acquired by the defendant personally in 2000 and was accordingly an
asset owned by him at the time
of his arrest in November 2006;
·
the Isuzu bakkie, CEM […],
was acquired as a second hand vehicle by the defendant personally on
16 February 2013, more than
5 years after his arrest when it was
owned by one van der Riet;
·
The Opel Corsa bakkie, CEM […],
was acquired as a second hand vehicle by the defendant personally in
May 2014, having been
owned by one Baldwin at the time of his arrest.
There is no current valuation of any of these vehicles
reflected in the papers.
46.
In regard to the Mercedes Benz ML 63 series
SUV, CA […], the documents reflect that it is a 2011 model
which was acquired
by Infoteam in April 2013 from a Mercedes Benz
agency at Century City. The documents suggest that the vehicle had
been repossessed
in January 2013 by Wesbank and was later sold by the
agency as a used vehicle financed by Mercedes Benz.
47.
The financial statements for Infoteam for
the tax year ended February 2014 financial year show that the company
then owned a “
Toyota 2,7
”
vehicle (presumably a bakkie) which had been bought for R198 738, a
Mercedes Benz which had been previously been bought
for R900 000
and was sold during that financial year for R870 000, and then
replaced by another Mercedes Benz which cost
R980 000 and was
financed in the amount of R599526,59.
48.
The financial Statements of Infoteam for
the tax year ended February 2006 annexed to Ms. van Rensburg’s
affidavit reflect
that in the period 2005/6 Infoteam owned a Mercedes
Benz ML 500 SUV which was purchased for R608 850. This suggests
that the
Mercedes Benz SUV which Mr. Theunissen saw the defendant
driving was owned by Infoteam (of which the defendant was then a
member)
and not his abalone export company, S&W Fishing.
49.
In my view, and in light of the definition
in s1 of POCA of “
proceeds of
unlawful activities
”
which render the replacement of assets at any time capable of
confiscation, it is necessary that the defendant and Ms. van
Rensburg
clarify the acquisition and disposal of these luxury vehicles over
the years.
ERF 93 GANSBAAI
50.
Mr. de Jager says that Erf 93 Gansbaai was
bought on 16 January 2004 for R1 105 800 and was partly
financed with a mortgage
bond of R700 000. Its current municipal
valuation is said to be R2 070 000. In his answering
affidavit of 11 May
2018 the defendant confirms the purchase price of
this property and the provision of bond finance and goes on to
explain that the
balance of the purchase price was financed by a loan
from him to Infoteam. He says that he does not know property’s
current
value and points out that it was bought and paid for before
the date on which the first offence listed in the indictment was
allegedly
committed. Such an allegation is however irrelevant if
regard be had to the definitions referred to and, in any event, does
not
afford the defendant a defence to the claim for confiscation. The
defendant does not say in that affidavit how Infoteam sourced
the
funds used for the balance of the purchase price (R405 800).
51.
In his supplementary affidavit of 19
January 2019 the defendant refers to the affidavit of his wife of 31
January 2019 and seeks
to rely on the contents thereof to correct the
earlier allegation that he contributed the balance of the purchase
price of Erf
93 Gansbaai on loan account to Infoteam. He says that he
was mistaken and had confused that loan with another loan which he
had
made in respect of the purchase of another property in Hermanus,
Erf 772, to which I shall refer later. The defendant’s
supplementary
answering affidavit suggests that the complete answer
to the applicant’s allegations is to be found in his wife’s
affidavit
of 31 January 2019 and I shall accordingly deal with that
affidavit separately.
ERF 797 HERMANUS
52.
In the founding statement Mr. de Jager says
that Erf 797 Hermanus was bought on 12 September 2005 for R8,8m and
that a bond of R6m
was registered over the property. The current
municipal valuation is said to be R9,5m. In his answering affidavit
of 11 May 2018
Mr. van Rensburg confirms the purchase price and the
bond finance but says that he does not know what the current
municipal valuation
is. He goes on to point out that the balance of
the purchase price was advanced to Infoteam by Ms. van Rensburg on
loan account.
As pointed out above, at that stage the defendant and
his wife each held 50% of the members’ interest in Infoteam. In
his
supplementary founding statement Mr. de Jager says that the value
of the property in January 2019 was R10m and that there is still
a
bond of R6m registered over it.
ERF 772 HERMANUS
53.
The defendant says in his answering
affidavit of 11 May 2018 that all properties bought by Infoteam over
the years were intended
to be income-producing commercial assets
whose rentals were used to service the respective bonds passed over
them. He says that,
to this end, in 2004 Infoteam bought Erf 772
Hermanus for R1,5m. A bond of R700 000 was registered to partly
finance the purchase
and the balance of R800 000 was sourced
from “
private loans
”.
54.
The defendant says that this property was
sold “
a few months later
”
for R2m. It is common cause that up to 23 August 2004 the defendant
held the full members’ interest in Infoteam, whereafter
he
transferred 50% thereof to his wife. The defendant’s affidavit
does not establish, however, when in 2004 either the purchase
or sale
of this property took place, nor from whom the private loan of
R800 000 was sourced.
ERVEN 119, 120 AND 2925 GANSBAAI AND UNITS 1-11 IN
GOODWOOD SECTIONAL TITLE SCHEME 27467
55.
The Goodwood properties were all acquired
directly by Infoteam in October 2010 at a time when Ms. van Rensburg
held 100% of the
members’ interest therein. She has stated in
her affidavit of 31 January 2019 that, since the applicant does not
allege that
the acquisition of these properties are to be construed
as “
affected gifts
”
as defined under POCA, she declines to deal with them further.
56.
Annexure DDJ 9 to Mr. de Jager’s
supplementary statement contains a printout by an entity called
“
Datasearch
”
which details the acquisition of,
inter
alia,
the remaining 3 Gansbaai
properties referred to above. This search reflects that Erf 119
Gansbaai was acquired by Infoteam on 15
August 2007 at a cost of R3
372 714, that Erf 120 was purchased by Infoteam on the same day
for R3 438 642, as also
Erf 2925 for R13 688 642.
The seller of each of these 3 properties was the Basie Wessels
Familie Trust and the combined
deal (with an aggregate value of
R20 499 998) was evidently financed with a covering
mortgage bond registered in favour
of ABSA Bank in the amount of
R5 916 666. The printout does not reflect how or where the
balance of the purchase price
(R14 583 332) was sourced.
57.
Ms. van Rensburg’s response to the
acquisition of these properties is similar to the Goodwood
properties: that she held the
entire members’ interest in
Infoteam as of August 2007 and that since the applicant made no
allegation that these were “
affected
gifts
”, she did not intend
dealing therewith either.
SEA POINT SIDEWALK CC (“
SPS”
)
58.
In his supplementary affidavit of 10
January 2019 Mr. de Jager refers the court to a companies’
search on SPS and furnishes
details of its corporate history. SPS was
registered on 19 May 2005 with a certain Anel de Morney as the sole
member until 21 June
2005 when the defendant acquired the entire
interest therein. Given the manner in which shelf-companies are often
formed it is
not uncommon for the initial interest in the company to
be registered in the name of a person employed by the entity
registering
the shelf-company. In this case, Annexure DDJ 14 to the
founding statement reflects that Ms. de Morney’s residential
address
was located at commercial premises in Bellville. Furthermore,
on 21 June 2005 the name of the company was changed from “
High
Tide Trade 45
” to SPS. SPS was
clearly then a shelf company when it was acquired by the defendant.
59.
Annexure DDJ 14 also reflects that the
registered address of SPS changed from time to time – from
residential addresses in
Green Point and Fresnaye to Killarney
Gardens, which is a commercial area. Further, it demonstrates that
100% of the members’
interest in SPS was held by the defendant
until 3 March 2015 when he resigned as such. From then until 1
December 2015 Ms. van
Rensburg is reflected as the only member of SPS
although the printout suggests that she made no member’s
contribution in
respect of the acquisition thereof since her “
Member
size
” is reflected as “
0%
”.
60.
Then, from 1 December 2015 until 26 April
2018, the entire 100% of the members’ interest in SPS was held
by Mr. Clive Eric
Coetzee, whose residential address is reflected as
being in the Cape Town suburb of Edgemead. The document suggests that
Mr. Coetzee
acquired that interest for R100. On 26 April 2018 the
defendant’s daughters, Zara van Rensburg (then aged 12 years)
and Gabrielle
van Rensburg (then aged 9) each acquired 50% of the
members’ interest in SPS, with a member’s contribution of
R50 each.
61.
In the supplementary founding statement Mr.
de Jager notes further that SPS purchased Erf 1737 Gansbaai on 3 May
2018 for R3m, ostensibly
for cash: there is no bond registered over
that property. Annexure DDJ 15 to his supplementary affidavit
reflects the seller of
this property as Infoteam which appears to
have purchased it a year before from Hermanus Liquor Store CC on 2
February 2017 for
R3m. There is no evidence reflecting either
ownership or control of this latter close corporation.
MS VAN RENSBURG’S EXPLANATORY AFFIDAVIT
62.
As indicated earlier, the defendant’s
supplementary answering affidavit is short and relies, in the main,
on the explanatory
affidavit of his wife. This is understandable
given that the defendant is serving a sentence and the furnishing of
instructions
to his current legal representatives may be hamstrung
accordingly.
63.
Ms. van Rensburg says that she and the
defendant were married on 19 March 2004 out of community of property.
She says that she grew
up in a home in which property transactions
were everyday – her late father, Mr. Carlos Sabbe, owned a very
successful coastal
estate agency known as Carit Estates which was
involved in various property developments throughout the Western
Cape. When Mr.
Sabbe died in 2016 his estate was said to be worth in
excess of R300m.
64.
Ms. van Rensburg herself has also been
involved in the property business for many years, holding a B.Comm
degree and various diplomas.
She says that when she married the
defendant in 2004 she was already successfully established in the
industry and ran a thriving
business called Hermanus Estate Agency.
For that very reason she says her father advised her that she marry
the defendant out of
community of property with exclusion of the
accrual system. Ms. van Rensburg offers the following explanations in
relation to various
of the assets which the applicant has targeted
for confiscation in these proceedings.
Erf 93 Gansbaai
65.
Ms. van Rensburg says that she fortuitously
came upon this property in November 2003 while valuing another
property in Gansbaai.
After discussing the matter with her father,
says Ms. van Rensburg, she decided to buy the property for R970 000
plus VAT
of R48 500 as it presented a good commercial
opportunity.
66.
At the time, she says, the defendant owned
Infoteam which was a dormant company – it did not even have a
bank account –
and they decided to house Erf 93 Gansbaai
therein. Ms. van Rensburg says that she accordingly lent R498 000
to Infoteam to
finance the purchase of the property and the defendant
put in R2000 of his own. A bank loan was secured on mortgage for the
balance
of the purchase price.
67.
Attached to Ms. van Rensburg’s
affidavit of 31 January 2019 are various contemporaneous financial
statements of Infoteam which
reflect loans to the corporation by her
in the amount of R500 000 and by her mother in the amount of
R84 834,10, as also
documents supporting the allegation
regarding the purchase of the property and the opening of Infoteam’s
bank account on
1 December 2003.
68.
Ms. van Rensburg points to an error in the
defendant’s answering affidavit of 11 May 2017 in which he
stated that he had lent
money to Infoteam, which together with a bond
from ABSA bank had been used to finance the acquisition of Erf 93
Gansbaai. She attributes
this mistake to the peculiar circumstances
surrounding the drafting of that affidavit – her husband’s
recent incarceration
and the stress which accompanied it, as well as
a possible misunderstanding on the part of Adv Uijs SC (who drafted
the affidavit)
regarding his instructions.
69.
In his supplementary affidavit of 19
January 2019 the defendant explains the mistake in his earlier
affidavit and says that he confused
the alleged loan to Infoteam in
respect of Erf 93 Gansbaai with a later loan in relation to the
purchase of Erf 772 Hermanus.
Erf 772 Hermanus
70.
In her affidavit of 31
January 2019 Ms. van Rensburg says that in September 2004 Infoteam
purchased Erf 772 Hermanus for R1,5m.
She says that the defendant
made a payment of R429 900 into the account of Infoteam and these
funds were used in part to finance
the purchase of this entity. She
says that those funds were sourced from the defendant’s
erstwhile abalone exporting company
(Ligitprops 3016 CC
[17]
) while the balance of the purchase price was made up from a bank
loan with ABSA advanced on mortgage as well as “
funds
from Infoteam”
which
were evidently monies loaned to Infoteam by Hermanus Estate Agency.
71.
Ms. van Rensburg goes on to say that in
April 2005 Infoteam received an offer on the property of R2,2m (which
included commission)
and that she and the defendant decided to sell
it, making a quick gross profit of R 500 000 on the deal. Capital
gains tax in the
amount of R 72 500 was paid and Infoteam accordingly
realised a net profit of R427 500. Ms. van Rensburg attaches to
her affidavit
the financial statements for Infoteam for the tax year
ended 28
February
2006 from which, she says, this transaction may be verified.
Erf 797 Hermanus
72.
Ms. van Rensburg says that during September
2005 her father came to know of the availability of Erf 797 Hermanus
on the market.
He regarded it as a property with business potential
and advised her to purchase it. The asking price was high (R8,8m) and
because
the bank did not value it as highly as that, Ms. van Rensburg
says that she was required to provide self-funding of approximately

R2m. Acting on the advice of her father she says she decided to house
that property in Infoteam but was only prepared to do so
on condition
that she owned the entire members’ interest in the CC.
73.
To do this Ms. van Rensburg says it was
necessary to settle the defendant’s loan to Infoteam and during
the period 12 to 22
September 2005 four payments of R100 000
each and one payment of R30 000 were allegedly made to the defendant.
An Infoteam
bank statement for that period is attached to the
affidavit reflecting payment of four alleged tranches of R100 000.
However,
the identity of the recipient of those payments does not
appear from the statement nor is there proof of the alleged payment
to
the defendant of R30 000 on 22 September 2005. Nevertheless,
the financial statements of Infoteam for the 2005 and 2006 financial

years do reflect a loan by the defendant to Infoteam in the amount of
R429 000 and the subsequent liquidation of the indebtedness
to
him via drawings
qua
member.
74.
Ms. van Rensburg goes on to say that with
repayment of this member’s loan, the defendant no longer had
any financial interest
in Infoteam and he accordingly agreed to
transfer his 50% members’ interest to her. Because Infoteam’s
liabilities
then exceeded its assets, the parties apparently agreed
that there was no value in the defendant’s interest which was
transferred
to Ms. van Rensburg without payment of any consideration.
Because of administrative delays in the offices of the registrar of
companies,
says Ms. van Rensburg, the change of membership was only
eventually recorded with effect from 1 February 2007.
75.
Ms. van Rensburg says that since the
repayment of the defendant’s loan in September 2005 he has had
no further involvement
in the affairs of Infoteam, notwithstanding
the fact that the transfer of his interest only occurred almost 18
months later and
just a couple of months after his arrest on the POCA
charges. She has attached to her affidavit a variety of documents
which she
says indicate that it was she alone who acted on behalf of
Infoteam in purchasing Erf 797 Hermanus including an acknowledgment
of debt drawn in favour of her late father, Mr. Sabbe, for a loan of
R2m, allegedly used to make up the balance of the purchase
price, the
deed of sale and correspondence with the transferring attorneys.
76.
In support of the allegation that there was
no value in Infoteam at the time of the transfer of the defendant’s
50% interest
to her, Ms. van Rensburg says that she recently procured
an opinion from a certain Mr. Keith Bowman, a director of the
accounting
firm BDO Cape Incorporated, which she attaches to her
affidavit. The document in question is in the form of a short,
cryptic statement
signed by Mr. Bowman but it is not an affidavit. In
that statement it is said that certain adjustments were made by Mr.
Bowman
to the audited financial statements issued at the time by
Infoteam’s Accounting Officer, J.de W. Koegelenberg of
Hermanus,
who also happened to be the Accounting Officer for the
defendant’s erstwhile abalone business, S&W Fishing.
SPS
77.
The defendant makes no mention of SPS in
his first affidavit and there is only a brief mention thereof in his
second affidavit,
leaving it to his wife to deal with SPS. Ms. van
Rensburg says that from the time that the defendant acquired
ownership of SPS
in June 2005 until she acquired it in March 2015,
the corporation was dormant. She says that in 2015 she was
contemplating buying
a shopping centre in Bloubergstrand and was
advised by her father to use a separate corporate entity for such a
venture. Ms. van
Rensburg says that she “
accordingly
acquired a members’ interest in SPS to act as a vehicle in this
transaction.”
However, that deal
did not materialize.
78.
Ms. van Rensburg says that Mr. Clive
Coetzee is a family friend and at dinner one night he mentioned that
he wanted to start a business
venture. She says that since she was
not “
using
”
SPS at the time she offered the members’ interest to Mr.
Coetzee. He appears to have accepted the offer since Ms.
van Rensburg
says that she transferred the interest to him on 1 December 2015.
79.
Ms. van Rensburg goes on to say that,
although Mr. Coetzee’s business was initially successful, “
in
2017 it started picking up financial problems which resulted in its
closure in March 2018 with an assessed tax loss.”
Ms.
van Rensburg claims that she wished to acquire a vehicle to house
certain investments on behalf of her daughters and, since
SPS had an
assessed tax loss which she could make use of, she and Mr. Coetzee
agreed that the members’ interest could be
transferred to the
two young girls in equal shares at no cost.
80.
The daughters’ investments were
ostensibly the product of effective tax planning on Ms. van
Rensburg’s behalf for purposes
of limiting her own estate duty.
She says that since 2008 she and the defendant’s mother have
made use of a statutory tax
benefit in terms whereof an amount of
R100 000 could be donated annually to each child without
attracting donations tax. Initially,
these amounts were allegedly
deposited into a money market account and later into Infoteam where
they evidently attracted better
rates of interest. The financial
statements of Infoteam reflect such loans and the children’s’
income tax returns are
attached to Ms. van Rensburg’s affidavit
in an endeavour to demonstrate that all is above board. It is alleged
that by 28
February 2018, each child had a loan account in Infoteam
of R1,42m.
81.
Ms. van Rensburg says that she subsequently
bought Erf 1737 Gansbaai in the name of SPS, thereby securing an
effective 50% interest
for each child in that property. She does not
say how the property was financed other than to allege that the
purchase price was
paid by Infoteam and that the children’s’
loan accounts would be adjusted accordingly. Once the latest
financial statements
for SPS and Infoteam are prepared, says Ms. van
Rensburg, they will reflect a loan by each child to SPS of R1,5m
each. She denies
that the acquisition by SPS of Erf 1737 or her
children’s’ interest in SPS constitutes an affected gift
under POCA.
THE DEFENDANT’S CURRENT ASSETS
82.
In para 29.2 of his affidavit of 11 May
2018 the defendant refers, in relation to his current assets, to “
my
interest in the goodwill of the business in which I am presently
involved.”
He does not, however,
furnish any details in relation to such business. In the
circumstances the court is unable to fully evaluate
whether the
defendant in indeed still possessed of assets which are the proceeds
of crime, or any assets which have replaced such
proceeds.
EVIDENCE GIVEN IN THE CRIMINAL TRIAL
83.
The veracity of the
explanations put up by the defendant and his wife fall to be
considered in the context of the evidence adduced
at the trial.
Firstly, it was common cause that the defendant was arrested on 14
November 2006 when he surrendered himself to the
SAPS in Bellville
South. There were thereafter various appearances in the lower courts
in 2007 before this matter came before the
High Court on trial in 6
October 2008.
[18]
The transfer by the defendant of his 50% interest in Infoteam and
entire membership in SPS must accordingly be considered in light
of
the fact that he had been arrested and faced serious charges under
POCA for which he was successfully prosecuted and convicted.
84.
After certain of the accused had tendered
guilty pleas, and after some had skipped bail, the trial before this
court (in which the
defendant was arraigned as accused number 2)
commenced on 10 August 2014. While the defendant did not testify in
the trial there
were 2 interlocutory rulings which went against him
and which would have had significant implications for his assessment
of the
case. The first was a ruling on 2 September 2015 (the
so-called “
ECTA Ruling
”)
which effectively rendered evidence regarding cellphone traffic
between certain of the accused and State witnesses admissible.
The
second was a ruling on 16 February 2016 (the so-called “
Passport
Ruling”
) which had important
consequences for the defendant’s denial that an identified
cellphone number had been used by him. The
rearranging of the
financial affairs of the defendant and Ms. van Rensburg must be
considered in light of these dates.
85.
Then there is the defence put up by the
erstwhile accused no 4, Mr. Toni Peter du Toit, to explain his
regular cellphone contact
with the defendant. It was said that the
defendant operated a business in Killarney Gardens which manufactured
security spikes
and that in 2006 Mr. du Toit assisted with the
installation thereof. This was said to account for the cellphone
traffic between
the 2 men during the period April to October 2006.
86.
After conviction in
September 2017 the defendant adduced the evidence of his wife in
mitigation of sentence in February 2018. In
that evidence
[19]
Ms. van Rensburg dealt,
inter
alia
, with the
business of SPS. She said that at the time that she and the defendant
were married in March 2004 he and Mr. Coetzee were
already in
business importing steel products from China, including wall-mounted
security spikes
[20]
.
Ms. van Rensburg pointed from the witness box to Mr. Coetzee who was
sitting at the back of the court room and identified him.
The court
was then able to identify Mr. Coetzee by name: he was a very familiar
face having been in court throughout the trial
almost on a daily
basis.
87.
Ms. van Rensburg
testified that the steel business was called “
CKW
Steel
”
[21]
and had originally been the trading name of SPS. She went on to say
that Mr. Sean Smith used the defendant’s arrest under
the POCA
charges as a mechanism to work him out of S&W Fishing. When this
happened, said Ms. van Rensburg, the defendant started
his own
abalone exporting business but continued in the steel business
through his association with Mr. Coetzee in SPS.
88.
While the defendant
says nothing about the steel importing business, the impression is
created through this evidence of Ms. van
Rensburg that SPS (allegedly
trading as CKW Steel) was an active company
[22]
that was profitable, even before the defendant’s arrest in
November 2006
[23]
.
This would accord with the evidence of Mr. du Toit that he and the
defendant had spoken with each other telephonically about the

installation of spikes in 2006. Further, it is said that the company
was VAT registered which suggests that it must have attained
a fair
level of turnover to meet the relevant fiscal threshold.
89.
Ms. van Rensburg also
testified
[24]
that in December 2016 they had
“
problems with the name, Sea
Point Sidewalk, so we then decided to actually take our trading
name
[25]
and register it. We registered it, the VAT applications, the import
and export licenses and
with
(sic)
the intention
to transfer it all over to that company, and that was it, ja.”
90.
The “
partners
”
in that new business (“
CKW
Steel
”) were
said to be the defendant and Mr. Coetzee
[26]
.
However, Ms. van Rensburg almost immediately thereafter contradicted
herself and said that the sole member of SPS was Mr. Coetzee
and the
sole shareholder of CKW Steel was the defendant
[27]
.
She went on to say that SPS was still then (in February 2018) trading
in steel products but that it was facing poor “
economic
factors
” and
might be forced to close down if the defendant was not around to run
it.
[28]
This decision would depend on various considerations that allegedly
would be assessed at the end of the financial year in question.
91.
In her evidence the witness constantly
referred to the steel business using the pronoun “
we
”,
suggesting a degree of involvement from her side in the affairs
thereof. Be that as it may, there was no question when
Ms. Van
Rensburg testified in February 2018 (at the time of the launch of the
s18 application) that within a couple of months the
business would be
closed and the company used as a shell to house an investment for the
children. It is fair to infer that this
plan would have been known to
her when she testified.
92.
Ms. van Rensburg also
testified that the defendant had an interest in a business that
manufactured fiberglass storage tanks for
the abalone industry. This
business was apparently also conducted through CKW
[29]
with the defendant being the only person with an interest therein.
When asked by the court what the defendant’s assets were
at
that stage, Ms. van Rensburg said that it was just his interest in
CKW. She was unsure what the value of that interest was but
suggested
that it was probably negligible
[30]
.
93.
The financial statements for Infoteam for
the tax year ended February 2006 reflect that Ms. van Rensburg
introduced cash of R2m
into the business during that year on loan
account. Documentation annexed to her affidavit shows that she
electronically transferred
that sum of money to the conveyancing
attorneys attending to the transfer of Erf 797 on 18 November 2005.
However, the source of
these funds is not verified with reference to
any bank statements.
94.
In her evidence in
mitigation of sentence Ms. van Rensburg also referred to the success
of S&W Fishing at the time of the defendant’s
arrest and
said that a turnover figure of around R30m was bandied about by the
defendant and Mr. Smith.
[31]
The financial statements for Ligitprops for the tax year ending
February 2005, however, only reflect a turnover of some R5,2m.
While
this figure certainly represents a substantial increase over the
previous year’s turnover of R1,9m, it is a far cry
from the
amounts mentioned in evidence. It is necessary therefore for the
court to be satisfied that income from the unlawful disposal
of
abalone has not been laundered by the defendant, for example, through
Infoteam.
95.
Lastly, Ms. van
Rensburg was asked about the parties’ accommodation at the time
of the defendant’s arrest. She said
that the defendant then
owned residential property in Hermanus which they occupied throughout
the year in conjunction with a flat
in Clifton which they were
required to vacate during the summer months (November to
February)
[32]
.
She added that at the time of his arrest the defendant owned the flat
in Hermanus – at no.2 Breakwater in Westcliff Road
[33]
- which was sold quite a while after the birth of their first child
in 2006
[34]
.
96.
The property at no.2
Breakwater was not identified by either of the parties with reference
to its erf number but it cannot be either
Erf 797 nor Erf 772, which
are said in the Deeds Office searches conducted by Mr. de Jager to be
at 133 Main Road, East Cliff and
13 Aberdeen Street, East Cliff
respectively
[35]
.
Further, the companies’ search in respect of Infoteam conducted
by Mr. de Jager on 4 December 2018
[36]
reflects the residential address of both the defendant and Ms. van
Rensburg to be at No 2 Breakwater Lodge, Marine Drive, Hermanus.
97.
The evidence given by Capt. Brink in the
criminal trial suggests that this property was visited immediately
after the defendant’s
arrest as part of the process to verify
the latter’s residential address. It would appear, therefore,
that there is a residential
property which was owned by the defendant
personally in 2006 which has not yet been identified by either Mr. de
Jager, the defendant
or his wife and whose history and current
ownership is unknown to the court.
INTERIM CONCLUSIONS
98.
It will be apparent from the aforegoing
that there are significant inconsistencies in the evidence of Ms.
Sabbe given in the criminal
trial and deposed to in this application.
There are also certain facts which are required to be clarified
before the court can
come to a proper conclusion in this application
for confiscation. During argument I understood counsel to accept that
the powers
which the court exercised in an enquiry such as this were
wide enough to permit the court to issue directives with which the
parties
were required to comply before a final determination on the
confiscation application was arrived at.
99.
In the result it seems to me that the
interests of justice will be served if the applicant, the defendant
and Ms. van Rensburg are
directed to take the following additional
steps set forth below. In light of the fact that the defendant is
incarcerated at a prison
outside of the city it seems fair to grant
the parties an extended period of time in which to do so. Further, it
is proper that
Mr. Coetzee formally be given notice of these
proceedings in order that he may protect any of his interests which
may potentially
be effected by any order made herein. Finally, should
any of the parties require electronic extracts from the transcript of
the
proceedings in the criminal trial, they may do so on written
application to this court’s registrar
IN THE CIRCUMSTANCES THE FOLLOWING DIRECTIONS ARE
HEREBY ISSUED
A.
A copy of the full set of papers herein is
to be served by the applicant on Mr. Clive Coetzee at his residential
address being No
2 The Bend, Edgemead, 7441, Western Cape;
B.
Mr. Coetzee is given leave to file an
affidavit in these proceedings in relation to any issue which he
considers might affect his
proprietary interests, such affidavit to
be filed with the court and served on all other parties by close of
business on Friday
28 June 2019;
C.
The Defendant is directed to file a further
supplementary affidavit with the court and to serve same on all other
parties by close
of business on Friday 28 June 2019 and to inform the
court as follows –
i.
When he acquired the immovable property
situate at No 2 Breakwater Lodge, Marine Drive, Hermanus;
ii.
What the purchase price thereof was;
iii.
Whether such property was thereafter held
in the defendant’s name or through some other legal entity, and
if so, the full
details of such entity;
iv.
How the acquisition of such property was
financed;
v.
When such property was disposed of, to whom
and for what consideration;
vi.
Whether capital gains tax was paid on the
disposal, and if so, when, and in what amount;
vii.
When he disposed of his interest in
Ligitprops 3016 CC (“
Ligitprops
”),
to whom and for what consideration;
viii.
To furnish the Court with copies of the
annual financial statements of Ligitprops for the period 1 March 2006
until the disposal
of the defendant’s interest therein;
ix.
To furnish the court with copies of the
income tax returns of Ligitprops for the period 1 March 2005 until
the disposal of the defendant’s
interest therein;
x.
The name of the entity (in which the
defendant was directly or indirectly involved) and which traded in
steel products during the
period 1 January 2004 to 28 February 2018,
as alleged by Ms. Kim van Rensburg in her evidence in the criminal
trial before this
court on 5 and 6 February 2018;
xi.
To furnish the court with copies of the
annual financial statements, income tax returns and bank statements
for any such entity
which traded in steel products as aforesaid for
the period 1 January 2004 to 28 February 2018;
xii.
What the source was of the funds referred
to by Ms. van Rensburg in para 8.16 of her affidavit of 31 January
2019 filed herein and
which emanated either directly or indirectly
from the defendant. In this regard, the defendant is directed to
identify such sources
with reference to the Annexures to Ms. van
Rensburg’s affidavit or any other relevant documentation which
he may have at
his disposal;
xiii.
To identify (with reference to bank
documents in respect of any accounts held by him) receipt of the
amounts allegedly repaid by
Infoteam to the defendant, as alleged by
Ms. van Rensburg in para 8.19.1 of her aforesaid affidavit;
xiv.
Copies of the annual financial statements,
income tax returns and bank statements in respect of Sea Point
Sidewalk CC for the period
19 May 2005 to 3 March 2015;
xv.
The identity of the business referred to in
para 29.2 of the defendant’s affidavit of 11 May 2018;
xvi.
To the extent that the particulars
furnished above may not do so, the defendant is to furnish full
details of the business known
as “CKW Steel” including
but not limited to –
·
The name of the entity in which the
business was housed;
·
The date of incorporation or
establishment thereof;
·
A full history of the business of
the entity;
·
Details of its bank accounts;
·
Copies of all bank statements for
the period 1 January 2004 to 28 February 2018; and
·
Copies of all income tax and VAT
returns for the period 1 January 2004 to 28 February 2018.
D.
The defendant is directed to verify all
factual allegations made in response to the issues set out above with
reference to relevant
documentation.
E.
Ms. Kim van Rensburg is directed to file a
supplementary affidavit by close of business on Friday 28 June 2019
and to inform the
court therein of the following -
i.
When Infoteam Investments 66 CC
(“
Infoteam
”)
acquired an interest in Erf 1737 Gansbaai;
ii.
From whom, and for what consideration, such
interest in the said Erf 1737 was acquired by Infoteam;
iii.
What the source of the funds was for such
acquisition of the said Erf 1737 by Infoteam;
iv.
When Infoteam disposed of such interest in
the said Erf 1737 and to whom such disposition was made;
v.
Whether capital gains tax was paid by
Infoteam in respect of such disposition and if so, when and in what
amount;
vi.
What consideration accrued to Infoteam in
respect of such disposition;
vii.
What became of the proceeds of any such
consideration received by Infoteam;
viii.
What the commercial rationale was for the
disposal by Infoteam of the said Erf 1737;
ix.
To furnish full details of any Mercedes
Benz or other luxury vehicle registered in the name of Infoteam
during the period 24 August
2004 to 28 February 2018 including but
not limited to –
1.
The registration number of each such
vehicle;
2.
The date and cost of acquisition thereof;
3.
The date of disposal thereof and the amount
accruing to Infoteam upon such disposal;
4.
The name of the person who had the
day-to-day use of such vehicle.
F.
Ms. Kim van Rensburg is directed to verify
all factual allegations made in response to the issues set out above
with reference to
the relevant documentation.
G.
Ms. Kim van Rensburg is directed to procure
the opinion expressed in Annexure KvR 17 to her affidavit of 31
January 2019 in an affidavit
and to ensure that the opinion so
expressed is contained in clear and understandable form in such
affidavit;
H.
The applicant will be entitled to file a
further supplementary replying affidavit in response to any further
affidavits filed by
the defendant (or on his behalf), Ms. van
Rensburg and/or Mr. Clive Coetzee by close of business on Friday 26
July 2019.
I.
The consideration of all issues of costs
will stand over for later determination.
__________________
GAMBLE, J
ANNEXURE
B
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE NO: SS13/12
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
WILLIE
JAKOBUS VAN RENSBURG
Defendant
Coram:
P.A.L.Gamble, J
Date
of Hearing: 3 December 2019
Date
of Ruling: 9 March 2020
FURTHER
DIRECTIONS ISSUED ON 9 MARCH 2020
GAMBLE,
J:
INTRODUCTION
100.
On 25 April 2019 this Court issued a ruling
in this application brought in terms of s18 of the Prevention of
Organised Crime Act,
121 of 1998 (“
POCA
”)
for the confiscation of certain identified assets of the defendant.
Pursuant thereto the defendant and his wife (“
Ms.
van Rensburg
”) filed further
affidavits as did the applicant. The Court heard further argument on
3 December 2019 whereafter judgment
was reserved.
101.
The further affidavits have clarified a
number of issues as I shall demonstrate shortly but there is still
one issue which requires
a further explanation from both the
defendant and Ms. van Rensburg, hence this further directions’
ruling.
102.
It is clear now that, save for what is set
out hereunder, the defendant personally owns no property capable of
confiscation to satisfy
the benefit to him as a consequence of his
conviction in the agreed amount of R7,125m. What requires
clarification now is the question
of certain alleged affected gifts.
MOTOR VEHICLES
103.
Having considered the various affidavits
filed of record I am satisfied that none of the motor vehicles
referred to in para 21 of
the s21 statement of Mr. Deon de Jager of
19 February 2018 belong to the defendant or are affected gifts as
contemplated under
s12(1) of POCA. They are therefore not capable of
confiscation.
INFOTEAM
104.
As far as Infoteam Investments 66 CC is
concerned I am similarly satisfied that the position has been
properly explained to the
Court, that the defendant currently has no
interest therein and, further, that when he transferred his remaining
interest of 50%
therein to his wife in 2007, he did so for value.
There can therefore be no question of the disposal of the defendant’s
remaining
interest in Infoteam being categorized as an affected gift
to his wife.
GOODWOOD SECTIONAL TITLE UNITS
105.
I am satisfied that the defendant has no
interest in any of the Goodwood properties as referred to in para. 24
of Mr. de Jager’s
supplementary statement of 10 January 2019.
The properties were all acquired by Ms. van Rensburg in her own right
and for value
given by her. It has not been shown that any part of
the defendant’s assets found their way into those properties.
SEA POINT SIDEWALK AND CKW STEEL
106.
The circumstances surrounding the
acquisition, the running and the disposal of Sea Point Sidewalk CC
(“SPS”) continue
to lack clarity. As pointed out in the
earlier ruling, the defendant studiously avoided any reference to SPS
in his first affidavit
dated 11 May 2018. At that stage he no longer
held the sole membership of SPS, having disposed of same to his wife
on 3 March 2015
whereafter Ms. van Rensburg retained the sole
membership until 1 December 2015.
107.
From 1 December 2015 to April 2018 Mr.
Clive Coetzee, a family friend, held the entire membership in SPS
before transferring it
to the van Rensburgs’ two minor
daughters (Z[…] and G[…]) who henceforth each held (and
continue to hold) 50%
of the membership. Notwithstanding service of
the papers herein on him, Mr. Coetzee has not sought to intervene or
file any papers
in this application.
108.
During her evidence in mitigation of
sentence on behalf of the defendant in the criminal trial (given on 5
and 6 February 2018)
Ms. van Rensburg referred to three commercial
entities in which the defendant had been involved during the period
2005 to 2018
– S & W Fishing, SPS and CKW Steel. S & W
Fishing was an abalone and rock lobster export enterprise in which
the
defendant was involved with Mr. Shaun Smith at the time of his
arrest. It was said by Ms. van Rensburg that Mr. Smith used the
defendant’s arrest as a ploy to work him out of that business.
No further comment or investigation regarding S & W is
necessary
as the defendant no longer has any interest therein.
109.
Ms. van Rensburg
testified that her husband and Mr. Coetzee were interested in setting
up a company that would import steel products
from China around the
time of their marriage in 2004. Certainly, the evidence in mitigation
deposed to by Ms. van Rensburg establishes
that by the time of the
defendant’s arrest in November 2006, the steel business was
fully functional.
[37]
She said that the steel business was conducted through the medium of
SPS with both the defendant and Mr. Coetzee as “partners”.
[38]
110.
Ms. van Rensburg
suggested at one stage that CKW was the trading name of SPS
[39]
.
But it was pointed out to her by the prosecutor during cross
examination that CKW Steel (Pty) Ltd was only registered in 2016
[40]
and that she had already testified that SPS had been established
round about the time that she and the defendant were married –

2004, she explained that SPS was registered for VAT and so a
commercial decision was taken to transfer the business of CKW Steel

to SPS
111.
Ms. van Rensburg explained that after he
fell out with Smith at S&W Fishing, the defendant had directed
his attention to the
running of CKW Steel which imported mainly steel
wire from China for onward sale to local industries, wine farms and
the like.
Mr. Coetzee was the face of the business as he got on well
with the customers while the defendant seems to have been the person

with the commercial and financial experience and involvement. Ms. van
Rensburg gave the court to understand that CKW Steel had
done well
initially but after the defendant was required to attend court
proceedings from 2014 onwards its profitability had suffered.
She
said (at the time of giving evidence on 6 February 2018) that SPS
(which she claimed traded in steel products) was being wound
down as
it was no longer profitable.
112.
In a supplementary affidavit in these
proceedings dated 28 June 2018, the defendant gave the following
explanation regarding SPS.
He said that his mother runs a boutique in
Hermanus called “
Sidewalk
”
and in 2004/5 he and his wife formed SPS with the intention that she
would run a boutique (presumably in Sea Point) under
the name “
Sea
Point Sidewalk”.
But when Ms. van
Rensburg fell pregnant shortly thereafter, the couple abandoned the
plans to run a boutique and SPS became dormant.
113.
The defendant says that he thereafter
became involved in the importation of wire products and used SPS as
the corporate vehicle
for this business. He attaches to that
affidavit the financial statements of SPS commencing with the
financial year ending 29 February
2008 (i.e. calendar year 2007).
This would tie-in roughly with the parting of the ways with Smith.
The successive financial statements
for the following years up until
28 February 2018 (i.e. calendar year 2017) are also attached.
114.
When these financial statements are
considered by way of overview, they certainly tie in with the
structure of a company buying
and selling products. So, for instance,
one sees that for the 2015 financial year a gross revenue of R17,34m
and the costs of sales
at R14,135m, while in 2016 those figures
increase to R18,342m and R15,371m respectively. The expenditure
reflected in the various
income statements are consistent with the
wire business described by both Ms. van Rensburg and the defendant.
115.
The financial statements for 28 February
2018 show a significant decline in the business of SPS: from gross
revenue of R13,523m
in 2017 to R6,918m in 2018. As far as the 2019
financial year is concerned the defendant has placed before the court
only a set
of management accounts which show that the income of SPS
has all but dried up. On the expenses side the management accounts
reflect
interest payments of R30 000 to the defendant and
R75 000 to each of Zara and Gabrielle.
116.
As noted in para 62
et
seq
of my ruling of 25 April 2019, Z[…]
and G[…] were the beneficiaries of lawful, tax-efficient
donations made to them
by their mother and grandmother over the
years. This resulted in each child acquiring a loan account in
Infoteam in the amount
of R1,42m. In her supplementary affidavit
dated 9 July 2019, Ms. van Rensburg says that on 3 May 2018 Infoteam
sold Erf 1737 Gansbaai
to SPS for R3m. The purchase price was
evidently settled by effectively transferring the girls’ loan
accounts in Infoteam
to SPS. As a consequence of these loan accounts,
each child is now credited with an annual interest payment on her
loan account
as the financial statements reflect. The simple
mathematics is that the girls’ loans have attracted interest at
5% per annum,
hence the sum of R75 000 accruing to each of them.
117.
However, when the
financial statements of SPS are reviewed over the years it will be
noted that there are recurring long term liabilities
in the form of
loans. In argument, Mr. van Zyl SC readily conceded that a sum of
R160 000,00, recorded as a loan in the management
accounts of 1
March 2019
[41]
,
was currently an asset in the defendant’s estate capable of
forfeiture. This was said to be the only cognizable asset in
the
defendant’s estate. In my view the concession was fairly made.
I should point out that the aggregate of the loans from
Z[…]
and G[…] (R3m) are separately recorded and are distinguishable
from the defendant’s loan.
118.
But the financial statements and the
management accounts raise more questions than answers. In the first
place, there are some significant
reductions in the member’s
loan repayable by SPS. So, we see the following pattern in respect of
the member’s loan
over the last 6 years –
·
28 February 2011
– R1 298 000
[42]
·
29 February 2012
– R710 000
[43]
·
28 February 2013
- nil
[44]
·
28 February 2014
– R1 600 000
[45]
·
28 February 2015
– R4 705 000
[46]
·
29 February 2016
– R3 600 000
[47]
·
28 February 2017
– R1 000 000
[48]
·
28 February 2018
– R750 000
[49]
After climbing steadily until 28 February 2015 (i.e.
calendar year 2014, which coincides with the commencement of the
criminal trial
before this court in August 2014), there is a steady
reduction in the defendant’s loan to SPS. The obvious
conclusion is
that part of his loan was repaid to the defendant
thereafter. It is necessary that this be clarified and, in
particular, that the
defendant declares what assets (if any were
acquired) with the proceeds of these loan repayments.
119.
There is a further issue in respect of the
defendant’s loan to SPS that requires clarification. As already
stated, the management
accounts for 28 February 2019 reflect interest
payments to Z[…] and G[…] of R75 000 each, with
the aggregate
of their loans being recorded as R3m. This means that
each child has received interest of 5% per annum on her loan of R1,5m
to
SPS. The interest paid to the defendant is recorded as having been
R30 000. Assuming that the same rate of interest was paid
to
each loan creditor, the payment to the defendant of R30 000 at
5% per annum implies a capital sum of R600 000 standing
to his
credit in SPS. This figure is inconsistent with the admitted asset of
R160 000 already referred to.
120.
In the result, the defendant is required to
explain the movement in his loan account over the years in question
and, further, to
deal with the apparent inconsistency in relation to
the extent of his current loan to SPS. Further, and given the passage
of time
that has elapsed since the matter was heard by the Court on 3
December 2019, it is more than likely that the audited financial
statements of SPS for the year ended February 2019 will now be
available for perusal. These should therefore be placed before the

Court by way of a further affidavit. Further, if the financial
statements for SPS for the year ended February 2020 are perchance

available, they too should be placed before the court.
121.
In light of the defendant’s
incarceration it is necessary that he be given sufficient time to
deal with the Court’s
further queries. In the event that the
defendant requires an extension of time to procure the outstanding
financial statements,
he is at liberty, through his legal
representatives to request an extension of time from the Court.
ACCORDINGLY THE FOLLOWING DIRECTIONS ARE ISSUED
A.
The defendant is to furnish the Court with
the audited financial statements (if available) of Sea Point Side
Walk CC (“
SPS
”)
for the tax years ending 28 February 2019 and 29 February 2020;
B.
The defendant is to furnish proof of the
repayment of his loan accounts in SPS for the tax years ending –
a.
28 February 2015;
b.
29 February 2016;
c.
28 February 2017;
d.
28 February 2018;
e.
28 February 2019; and
f.
29 February 2020.
C.
The defendant is to provide full details of
all assets acquired with the proceeds of the repayments of his loan
account in each
tax year as aforesaid.
D.
The defendant is directed to comply with
these directions by 1 June 2020.
_______________
GAMBLE,
J
[1]
In the indictment in the
criminal trial and in all subsequent documents generated in the
trial, the defendant was erroneously
referred to as “
Willem
Jacobus van Rensburg
.”
His identity document and ante nuptial contract correctly reflect
his names as
Willie
Jakobus
van
Rensburg. The defendant’s names have accordingly been changed
in the court heading in these proceedings to reflect
his correct
name.
[2]
Ms van Rensburg also makes
use of her maiden name “
Sabbe
”
on occasion in the course of some of her business dealings.
[3]
S v Shaik and others
[2008] ZACC 7
;
2008 (2) SACR 165
(CC) at
[65]
[4]
Wightman v Headfour (Pty)
Ltd
[2008] ZASCA 6
;
2008 (3) SA
371
(SCA) at
[12]
[5]
National Director of
Public Prosecutions v Carolus and others
1999 (2) SACR 27 (C)
[6]
National Director of
Public Prosecutions v Basson
2001 (2) SACR 712
(SCA) at [9] and [22]
[7]
In the indictment in the
criminal trial and in all subsequent documents generated in the
trial, the defendant was erroneously
referred to as “
Willem
Jacobus van Rensburg
.”
His identity document and antenuptial contract correctly reflect his
names as
Willie
Jakobus
van
Rensburg. The defendant’s names have accordingly been changed
in the court heading in these proceedings to reflect
his correct
name.
[8]
Ms van Rensburg also makes
use of her maiden name “
Sabbe
”
on occasion in the course of some of her business dealings.
[9]
S v Shaik and others
[2008] ZACC 7
;
2008 (2) SACR 165
(CC) at
[65]
[10]
R v Rezvi
[2002] 1 All ER 801
(HL) at [14] cited with approval in
Shaik
at [55]
[11]
NDPP v Rebuzzi
2002
(1) SACR 128
(SCA) at [19]
[12]
NDPP v Ramlutchman
2017 (1) SACR 343
(SCA) at [28]
[13]
12. Definitions and
interpretation of Chapter [5]. –
…
(3) For the purposes of this Chapter, a person has
benefited from unlawful activities if he or she has at any time,
whether before
or after the commencement of this Act, received or
retained any proceeds of unlawful activities."
[14]
1. Definitions and
interpretation of Act –
(1)
In this Act, unless the context otherwise indicates –
“
proceeds
of unlawful activities
" means any
property or any service, advantage, benefit or reward which was
derived, received or retained, directly or indirectly,
in the
Republic or elsewhere, at any time before or after the commencement
of this Act, in connection with or as a result of
any unlawful
activity carried on by any person, and includes any property
representing property so derived;"
[15]
Ramlutchman
[21]
[16]
“
(A)ffected gift”
means any gift –
(a)
made by the defendant concerned not more
than seven years before the fixed date; or
(b)
made by the defendant concerned at any
time, if it was a gift –
(i)
of property received by that defendant in
connection with an offence committed by him or her or any other
person; or
(ii)
of property, or any part thereof, which
directly or indirectly represented in the defendant’s hands
property received by
him or her in that connection, whether such
gift was made before or after the commencement of [POCA}...”
[17]
During the criminal trial
there was evidence that the defendant and a certain Mr. Sean Smith
were members of this CC which traded
in Hermanus as “
S&W
Fishing” –
the
acronym being derived from its members’ first names, Sean and
Willie.
[18]
See
S
v Chao and others
2009 (1) SACR 479
(C) at [8] – [16]
[19]
See the transcript of
proceedings at pp 11533 to 11594.
[20]
Record p11548.8
[21]
The name was said to be an
acronym for “
Clive,
Kim and Willie
”.
[22]
Record p11569.20 –
11570.10
[23]
Record p11541.12 - 15
[24]
Record p11570.15 - 20
[25]
i.e. CKW Steel
[26]
Record p11571.4
[27]
Record p11572.1-10
[28]
Record p11572.15-25
[29]
Record p11573.13-21
[30]
Record p11582.10-11583.11
[31]
Record p11563.17 –
11564.6
[32]
Record p11579.21-11580.2
[33]
Record p11540.10-21
[34]
Record p11541.22
[35]
See Annexure DDJ 9 to the
supplementary founding statement.
[36]
See Annexure DDJ 10 to the
supplementary founding statement
[37]
S v Miller Transcript
pp 11541.3; 11548.3
[38]
S v Miller Transcrip
t
p11571.5
[39]
S
v Miller Record
p11569.23
[40]
S v Miller Record
p11570.13
[41]
Record
p
606
[42]
Record
p 557
[43]
Ibid
[44]
Record
p
567
[45]
Ibid
[46]
Record
p585
[47]
Ibid
[48]
Record
p594
[49]
Record
p603