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[2010] ZAGPPHC 156
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National Director of Public Prosecutions v Daniels and Others (54183/2008) [2010] ZAGPPHC 156 (12 October 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA /ES
N
ORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO: 54183/2008
DATE:
12/10/2010
IN
THE MATTER BETWEEN
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
...........
APPLICANT
AND
BARBARA
DANIELS
............................................................................
1
ST
RESPONDENT
VENICIA
NAIDOO
..................................................................................
2
nd
RESPONDENT
SANOOSHA
ABRAHAMS
....................................................................
3
rd
RESPONDENT
THILOSHANEE
NAIDOO
......................................................................
4
th
RESPONDENT
JUDGMENT
BAM.
AJ
[1]
On 21 November 2008 the applicant,
ex
parte,
applied
for and obtained a preservation order, regarding certain property, in
terms of section 38 of the Prevention of Organised
Crime Act, Act 121
of 1998, hereinafter referred to as "POCA". The four
respondents were cited as such in their personal
capacities.
[2]
The property consisted of movables and immovables. I will
refer to the immovable property in order to identify same
for the
purpose of this judgment without using the formal description of the
Registrar's office. The property are as follows:
immovable
(a)
sectional title "Lana's Lane";
(b)
sectional title "Villa Mia";
(c)
sectional title "Noon's Place";
(d)
Numbi Park Erf 156;
(e)
Farm 385, Knopslaagte;
(f)
Erf 1694 Laudium;
movable
(g)
Mercedes ML500;
(h)
Mercedes AMG.
[3]
It is common cause, or undisputed, that the aforesaid property is
owned as follows:
(a)
owner Dundee Impex (Pty) Ltd, of which company the sole director is
the first respondent;
(b)
owner P & V Naidoo Family Trust (second respondent is a trustee
of the trust);
(c)
Thiloshanee Naidoo (fourth respondent);
(d)
owner is P & V Naidoo Family Trust (trustee second respondent):
(e)
owner is P & V Naidoo Family Trust (trustee second respondent);
(f)
owner is Sanoosha Abrahams (third respondent);
(g)
owner is P & V Naidoo Family Trust (trustee second respondent):
(h)
owner is P & V Naidoo Family Trust (trustee second respondent).
[4]
On 10 December 2008 the respondents gave notice of their opposition
of the forfeiture order and filed their affidavits in terms
of the
provisions of section 39(5) of POCA.
[5]
The preservation order referred to above, however, lapsed due to the
applicant not complying within the prescribed ninety days,
with the
procedure required in section 40(a) of POCA.
[6]
On 19 March 2009 the applicant, again on an
ex
parte
basis,
obtained another preservation order, based on the same facts upon
which the first application was based.
[7]
On 24 April 2009 the respondents gave notice in terms of section 39
of POCA of their intention to oppose the forfeiture order.
The four
respondents attached to the said notice their affidavits made in
terms of section 39(5).
[8]
On 29 April 2009 the respondents filed a notice of motion to
anticipate and rescind the
ex
parte
order
(section 47 of POCA). In the accompanying founding affidavit the
first respondent stated the following grounds:
"1.
the re-issuing of the preservation order is a circumvention of
the
ninety
day period and irregular;
2.
it is an abuse of process to allow the applicant to apply for a
second preservation order."
[9]
The applicant opposed the contentions of the respondents and in its
answering affidavit set out the full history of the matter
and
recorded four points
in
limine
in
opposition to the applicant's "anticipation" application to
which I will refer herein below.
[10]
I deem it apposite to deal at this stage with the respondents'
contention that the applicant was not entitled to obtain a second
preservation order in circumstances where the first one has lapsed as
in
casu.
Mr
Dodson, appearing for the applicant, with reference to
NDPPv
Braun & Another (N02)
2007(1)
SACR 556 (C), submitted that there was no reason at all, merely
because of the fact that the first preservation order has
lapsed as a
result of the time restriction, that the applicant could not
subsequently obtain a second preservation order based
on the same
facts.
[11]
1 do not think that it is necessary to consider this issue in depth.
Mr Roux SC, appearing for the respondents, during his
argument, to my
mind correctly, conceded that the applicant was indeed entitled to
obtain a second or further preservation order
based on the same facts
in the circumstances. This point was accordingly disposed of.
[12]
On 11 June 2009 the applicant applied for a forfeiture order in terms
of the provisions of section 48 of POCA pertaining to
the
aforementioned properties attached by the applicant in terms of the
second preservation order.
[13]
Section 39 read with sections 48(2) to (4), 52 and 54 of POCA creates
a mechanism in terms of which persons with legitimate
interests in
property could oppose the application for the forfeiture of the said
property. It seems to be necessary to keep in
mind that POCA with
regard to the forfeiture procedure, chapter 6 of the Act, establishes
a two stage asset forfeiture mechanism.
The preservation order is the
first stage of the proceedings, with the second phase involving an
application to the court for the
forfeiture of the preserved
property. See
National
Director of Public Prosecutions
v
Parker
2006(1)
SACR 284 (SCA) at 291 par [13].
[14]
The applicant submitted that the persons listed herein below were the
only persons that may claim to have an interest in the
property
referred to above, upon which persons a notice of the order for
forfeiture sought by the applicant had to be served:
1.
Pragasan Naidoo with ID 580721 5107 08 0;
2.
Venicia Naidoo with ID 590909 0140 08 5;
3.
Sanoosha Abrahams with ID 800808 0040 08 7: and
4.
Thiloshanee Naidoo with ID 830508 0160 08 3.
In
this regard it appears from the papers that the first person named
above, Pragasan Naidoo, was not cited as a respondent. The
other
three people mentioned are the second, third and fourth respondents.
There is no evidence that Venicia Naidoo, the second
respondent, is a
trustee of P & V Naidoo Family Trust. It is. however, not clear
whether the first person mentioned, Pragasan
Naidoo, ex husband of
second respondent, is a trustee of the said family trust.
[15]
It was confirmed under oath by an inspector of the South African
Police Services. Inspector Mziwandile Alfred Sizane, that
on 12 June
2004, in the presence of Mr Pragasan Naidoo. a huge quantity of
Mandrax tablets was found in the house on the premises
Lana's Lane.
(Initially, according to the applicant, first respondent denied any
knowledge of the said premises or Dundee Impex
(Pty) Ltd the owner of
the property. I will again refer to this aspect hereinafter.)
Similarly on the same date, again in the presence
of Mr Pragasan
Naidoo, on the premises of Villa Mia. the police found a further
quantity of Mandrax tablets. From other evidence
gathered on the two
premises it was clear that Mandrax was either stored there or dealt
in, in contravention of section 5(b) of
Act 140 of 1992. (Drugs and
Drug Trafficking Act.) Both premises were unoccupied.
[16]
According to the evidence adduced by the applicant no Mandrax was
found on any of the rest of the properties referred to above.
[17]
The applicant submitted that its investigations further revealed and
proved that the Naidoo's, that is Mr Pragasan Naidoo and
the second
respondent, his erstwhile wife, and the rest of the family, amassed
the six immovable properties and the two vehicles
of considerable
value within a relatively short period of time. None of these assets,
according to the plaintiff, is encumbered,
which implies that it was
purchased for cash. Some of the properties are registered in the
children's names, third and fourth respondents,
and were purchased
when the children were still minors. Others were purchased and
registered in circumstances which were "fraudulent
or
suspicious". The immovable properties were all purchased between
the years 2000 and 2003. The applicant further submitted
that no
evidence of any form of legitimate income could be found, explaining
how the Naidoo's (respondents) could have amassed
such wealth.
[18]
The applicant further contended that according to the evidence
incasu
the
"Naidoo's" were involved in the packaging and distribution
of drugs, and that in all likelihood, the "Naidoo's"
obtained their income from the drug business.
It
was therefore submitted by the applicant that the properties in
question are the proceeds of criminal activity as provided for
in
POCA. The said evidence constituted proof on a balance of
probabilities, as submitted by the applicant, in that no evidence
could be found of any legitimate transaction in that regard.
[19]
The respondents denied the applicant's contention that the
respondents have been involved in any illegitimate situation. I
will
hereunder refer to the respondents' version in more detail.
[20]
In anticipation of the return date of the second preservation order,
the respondents deemed it correct in law to enroll the
relevant
application on 3 July 2010. The applicant, taking a point
in
limine,
contended
that the respondents' anticipation of the return date was irregular
in that it is not provided for in the Rules of Court
nor in terms of
the provisions of POCA.
The
respondents, however, persisted with their argument that Rule 6(8) of
the Rules of Court entitles them to anticipate the trial
date of the
forfeiture order.
•
I
have considered both arguments in depth. To my mind Rule 6(8) of the
Rules of Court, as submitted by the respondents, indeed make
provision for the anticipation of a trial date as
in
casu.
•
I
am of the opinion that section 47 of POCA also entitles the
respondents to bring such an application. The provisions of POCA is
draconic. To some extent it limits the rights of any citizen. Section
47 of POCA to my mind therefore should be regarded as a remedy
to a
respondent to aleviate his/her situation.
•
Mr
Dodson's argument that the issue at this point in time turns upon the
forfeiture order and not the preservation order any more,
is to my
mind without substance. The forfeiture order, at this point in time
is still subject to the lawful existence of the preservation
order,
as submitted by Mr Roux SC, appearing for the respondents. I agree.
Therefore the respondents are entitled to lodge the
"anticipation"
application directed at the preservation order.
•
After
having considered all the circumstances I also arrived at the
conclusion that the respondents' anticipation of the trial date
did
not prejudice the applicant in any way whatsoever.
[21]
Accordingly I found in favour of the respondents and the
applicant's point
in
limine
in
this regard is dismissed.
[22]
The applicant's application for the forfeiture of the properties
is regulated by section 50 of POCA.
It
is trite that this matter should be dealt with as a civil matter and
that the rules of evidence applicable in civil proceedings
apply to
the proceedings
in
casu.
•
Regarding
the application of the applicant I find it apposite to quote section
50 of POCA, pertaining to the issuing of the forfeiture
order:
"50(1)
The high court shall, subject to section 52, make an order applied
for under section 48(1) if the court finds on a balance
of
probabilities that the property concerned -
(a)
is an instrumentality of an offence referred to in Schedule 1;
(b)
is the proceeds of unlawful activities; or
(c)
is property associated with terrorist and related activities.
(2)
The high court may, when it makes a forfeiture order or at any time
thereafter, make any ancillary orders that it considers
appropriate,
including orders for and with respect to facilitating the transfer to
the state of property forfeited to the slate
under such an order.
(3)
The absence of a person whose interest in property may be affected by
a forfeiture order does not prevent the high court from
making the
order."
[The
contents of subsections (4), (5) and (6) not quoted.]
[23]
Pertaining to the
onus
the
following was stated in the matter of
Mohunran
& Another v National Director of Public Prosecutions &
Another
[2006] ZASCA 12
;
2007
4 SA 222
(CC) at para
[75]
:
"The
onus of establishing that all the requirements for a forfeiture order
in terms of section 50 of POCA - including that
of proportionality -
have been met, rests on the NDPP throughout. However, as some of the
factual matter relevant to the proportionality
analysis will often be
peculiarly within the knowledge of the owner of the property
concerned, the owner who is faced with a prima
facie case established
by the NDPP would in the usual course be well advised to place this
material before the court. This does
not, however, shift the onus of
proof to the owner in question; it merely places on the owner an
evidentiary burden or, as it is
sometimes called, a burden of
adducing evidence in rebuttal."
See
also
National
Director of Public Prosecutions v Parker, supra,
at
293
par
[18].
[24]
The applicant's contentions regarding the reasons or grounds for the
forfeiture of the immovable and movable property in question,
have
been referred to above. It is based on the averments of the applicant
that the property, in accordance with the provisions
of POCA:
"(a)
is an instrumentality of an offence referred to in Schedule 1;
(sect 5()(l)(a))
(b)
is the proceeds of unlawful activities."
(Sect
50(l)(b))
[25]
Mr Roux SC pertaining to the issue as to whoever is involved with the
property submitted the following
ad
property
Lana's Lane:
"It
is common cause that the property is registered in the name of Dundee
Impex (Pty) Ltd. The applicant has not brought
an application
against
Dundee
Impex (Pty) Ltd and as such an application for forfeiture against the
first respondent, which is merely the shareholder and
director of
Dundee Impex (Pty) Ltd, is fatally defective."
Ad
the
properties Villa Mia, Numbi Park, Knopslaagte and the Mercedes Benz
with registration number RCN538 GP (the ML500) Mr Roux submitted:
"These
properties belong to the trust. The applicant has failed to cite the
second and fourth respondents in their official
capacities as
trustees of the trust and as such the application for forfeiture in
respect of those properties is fatally defective"
Pertaining
to the above quoted submissions of Mr Roux SC, it is clear that it
turns upon questions of law.
[26]
It is correct, as submitted by Mr Roux SC, that neither Dundee Impex
(Pty) Ltd nor the trust was cited as a party to these
proceedings. If
the applicant, in law. was obliged to cite the said two entities, the
question which arises is whether the failure
of the applicant in that
regard is fatal for its case. Erasmus in
Superior
Court Practice
B1-126HH
states the following:
"
Where a trust has more than one trustee, all the trustees must be
joined in suing and all of them must be joined when action
is
instituted against a trust."
•
A
trust is correctly cited by referring in name to the trust as
represented by trustee X. Y and Z in their nominal capacity. See
in
this regard also
Land
& Agriculture Bank of South Africa v Parker
2005
2 SA 77
(SCA). (In this matter a trust applied for leave to appeal
without having been cited as suggested above, with the result that
the
Supreme Court of Appeal remarked that the appeal of the trust
should have been struck from the roll when it appear before the full
court.)
[27]
The applicant, represented by Mr Dodson, in referring to the matter
of
National
Director of Public Prosecutions v Braun & Another (N02)
2007(1)
SACR 556 (C) quoted the contents of paragraphs [15] and [16]:
"[15]
Counsel ... submits that the purpose of the act, and more
specifically chapter 6 thereof, is aimed at the forfeiture
of the
proceeds of or an instrumentality used in crime. To achieve this
purpose the lawgiver has provided for the filing of a civil
law suit
against the property itself in effect an action in rem, and that the
statutory procedure is modeled on modern notions
of in rem
forfeiture. The underlying notion is that property itself is an
offender and thus can be cited as a defendant in rem
in a civil case.
[16] The courts have recognised the in rem nature of the proceedings
... [The court then goes on to refer to other
jurisdictions which
have schemes for in rem forfeiture of assets.]"
[28]
Mr Dodson further submitted that the provisions of section 52 of
POCA are a safeguard against the interference with the
interests of
the so-called "innocent bystander". Mr Dodson further
submitted that it was not obligatory for the applicant
to cite either
the company and/or the trust in question. In terms of the provisions
of section 39(3) of POCA any party concerned,
could have and should
have, after learning about the preservation order and the pending
forfeiture order, joined or made application
to be joined as
party/parties to the application.
[29]
After having considered the situation I am of the opinion that Mr
Dodson is correct. There was no need for the applicant to
either cite
the company and/or the trust who now appear to be the owners of part
of the property. The provisions of section 39(3),
to my mind, put an
onus
on
any party who may have interests in the property.
[30]
The "instrumentality of an offence" is defined in
section 1 of POCA as follows:
"Any
property which is concerned in the commission or suspected commission
of an offence ..."
See
Prophet
v National Director of Public Prosecutions
2006
1
SA
670 (SCA) at 678a.
This
court is called upon to determine whether and to what extent the
properties in question fall within the ambit of the definition.
[31]
In measuring the strength and extent of the
nexus
between
the property and the offence, Mr Dodson submitted that the following
issues should be considered:
(a)
whether the use of the property in the offence was deliberate and
planned or merely incidental and fortuitous;
(b)
whether the property was important to the success of the legal
activity;
(c)
the time duration which the property was legally used and the nature
and extent of its use;
(d)
whether its illegal use was an isolated event or had been repeated;
and
(e)
whether the purpose of acquiring, maintaining or using the property
was to carry out the offence.
[32]
Mr Dodson further referred to
Prophet
paragraph
[3(1)] which reads as follows:
"Wherepremises
are used to manufacture, package or distribute drugs, or any part of
the premises has been adapted or equipped
to facilitate drug dealing
(which in terms of section 1(1) of the Drugs Act includes
'manufacturing') they will in all probability
constitute an
instrumentality of an offence committed on them."
In
this regard Mr Dodson submitted that the properties in question fall
within the quoted remark from
Prophet.
I
agree
with Mr Dodson.
[33]
Regarding the question whether the properties Lana's Lane and Villa
Mia were in fact used for the illegal purposes as suggested
by the
applicant, I am of the opinion that there is overwhelming evidence
adduced by the applicant that this was in fact the situation.
It
follows that I am satisfied that the evidence complied with the
criteria suggested in
Prophet,
supra.
On
those properties a substantial amount of Mandrax tablets were found,
as well as indications that packaging took place on a large
scale,
apparently professionally done in that scales were used to weigh the
drugs as well as "zip-lock" bags used for
the packaging.
Mr
Roux's submission that there was no proof against the respondents in
that regard loses sight of the totality of the evidence
including
proof that the respondents and the properties were interlinked.
Accordingly
1 am satisfied that the applicant has proved, subject to section 52
of POCA, that the said two properties were "instrumentality"
of an offence.
See
National
Director of Public Prosecutions
vRO
Cook Properties (Pty) Ltd
2004(2)
SACR 208 (SCA).
The
handling of the drugs on the
two
properties
falls within the definition of "dealing" in drugs in
contravention of section 5(b) of the Drugs and Drug
Trafficking Act
116/1992.
[34]
The applicant, in endeavouring to prove its case, filed affidavits
and confirmatory documents in the usual way. The respondents
opposed
the application upon grounds including the so-called "innocent
bystander" defence, that the property was not
used as an
instrumentality to commit a crime mentioned in the first schedule of
POCA and that the properties in question were not
the proceeds of
unlawful activities. I have already referred to the applicant's
evidence on record.
[35]
The respondents sought an order in terms of section 47 of POCA
setting aside the second preservation order, alternatively
that the
properties be excluded as envisaged in section 52 of POCA regarding
the forfeiture application. The applicable subsections
of section
52 of POCA read as follows: "52.
Exclusion
of interests in property
(1)
The high court may on application
(a)
under section 48(3); or
(b)
by a person referred to in section 49(1),
and
when it makes a forfeiture order, make an order excluding certain
interests in property which is subject to the order, from
the
operation thereof.
(2)
The high court may make an order under subsection (J), in relation to
the forfeiture of the proceeds
of
unlawful activities, if it finds on a balance of probabilities that
the applicant for the order-fa) had acquired the interest
concerned legally and for a
consideration
the value of which is not significantly less than the value of that
interest; and (b) where the applicant had acquired
the interest
concerned after the commencement of this Act, that he or she neither
knew nor had reasonable grounds to suspect that
the property in which
the interest is held is the proceeds of unlawful activities.
(2)A
The high court may make an order under subsection (1), in relation to
the forfeiture of an instrumentality of an offence referred
to in
Schedule ... if it finds on a balance of probabilities that the
applicant for the order had acquired the interest concerned
legally,
and-
(a)
neither knew nor had reasonable grounds to suspect that the properly
in which the interest is held is an instrumentality of
an offence
referred to in Schedule I or
(b)
...
(3)
(a) If an applicant for an order under subsection (1)
adduces
evidence
to show that he or she did not know or did not have reasonable
grounds to suspect that the property in which the interest
is held,
is an instrumentality of an offence referred to in Schedule 1 or ...
the State may submit a return of the service on the
applicant of a
notice issued under section 51(3) in the rebuttal of that evidence in
respect of the period since the date of such
service, (b) ..."
[36]
In summation it is clear that section 52(1) of POCA provides for
an order excluding certain interests in the property which
is subject
to the forfeiture order.
Such
an order can be made in the event of the respondents
in
casu
proving
on a balance of probabilities, that he or she-
acquired
the interest concerned legally; and
acquired
the interest for a consideration, the value of which is not
significantly less than the value of the interest itself,
and
neither knew or had reasonable grounds to suspect that the property
in which the interest is held, is the proceeds of unlawful
activities.
[37]
Section 52(2A) provides for a similar order where it is proved that
the interest was acquired legally and the applicant neither
knew or
had reasonable grounds to suspect that the property is an
instrumentality of an offence referred to in Schedule 1 to POCA.
[38]
The evidence adduced by the applicant, which was not rebutted by the
respondents, proves on a balance of probabilities that
the
respondents and Mr P Naidoo, were mutually interlinked with each
other and the property in question. However, the only link
between
the property Lana's Lane and the Naidoo's is through P Naidoo. Mr P
Naidoo is implicated in the keeping or storing of Mandrax
on the
premises of Lana's Lane and Villa Mia. The first respondent is the
sole director of Dundee Impex (Pty) Ltd which is the
registered owner
of Lana's Lane.
The
third respondent denied that she had made a contradictory statement
to the police when she was initially questioned. According
to the
applicant's version in this regard she denied any knowledge of Lana's
Lane and the company Dundee Impex. The reason she
advanced to explain
the problem, that it was due to police misconduct, holds no water.
[39]
The respondents' counter-application (in anticipation) is based on
statements of the respondents baldly denying any knowledge
of illegal
activities.
[40]
There is insufficient evidence before the court adduced by the
respondents to establish the "innocent bystander"
defence
in terms of section 52A of POCA.
[41]
The further contention by the respondents that the applicant should
have joined the company in this application, and that applicant's
failure to do so was irregular and prejudicial against the company is
to my mind not correct and should be rejected.
[42]
The evidence adduced by the applicant regarding where and how the
respondents acquired the rest of the property creates a suspicion
that the property was acquired illegally and thus constitutes the
proceeds of crime.
[43]
In the absence of direct evidence of illegal activities from which an
income could have been derived to purchase the other
properties, a
court should be cautious to speculate.
[44]
A
consideration of the probabilities shows the following:
neither
Mr P Naidoo nor any of the respondents were gainfully employed at the
time of the purchase of the property, or could legitimately
have
generated income from any business to supply the funds to buy the
properties; it is, however, kept in mind that Ms Naidoo
did inherit a
certain amount which amount of money was clearly spent on other
properties non-related to this case; the registration
of some of the
properties in the names of the daughters, respondents
3
and
4,
and/or
the trust did not, to my mind, corroborate the respondents'
contention that same had been lawfully purchased; none of the
respondents could explain the criminal activities at Lana's Lane and
Villa Mia. Mr P Naidoo did not make a statement of any sort.
One
would have expected in these circumstances that he at least could
have exculpated his erstwhile wife, the second respondent,
and/or the
two daughters, the third and fourth respondents.
[45]
Mr
Dodson for the applicant submitted that the evidence adduced by the
applicant proved on a balance of probabilities that the respondents
including Mr P Naidoo and the properties in question were connected
to such an extent that it is inescapable to find that the illegal
activities indeed took place as averred and proved and accordingly
that the applicant has succeeded in proving (a) that the properties
were instrumentalities (properties "A" and "B")
and (b) that the balance of the properties was acquired by
using the
proceeds of crime and should therefore be forfeited to the state. I
agree with Mr Dodson.
[46]
Mr Roux SC tried to convince me that the respondents should succeed
with the application in anticipation of the applicant's
forfeiture
application, and to find that the preservation order should be set
aside. I do not agree with Mr Roux. The evidence
against the
respondents was overwhelming.
[47]
Counsel dealt with each and every aspect in a comprehensive way in
their heads of argument. I express my gratitude to both
Mr Roux SC
and Mr Dodson in this regard.
[48]
In conclusion I accordingly find that the applicant succeeds with
its application and that the respondents' anticipation
application
should be dismissed. I make the following order: Order marked "X"
attached. Pages 1 -2 refer to the property
in question. Pages 2-5
prayers 1-9 Prayer 10
The
respondents are ordered, jointly and severally, to pay the costs of
the application the one paying the other to be absolved.
A
J BAM
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
54183-2008
HEARD
ON:
FOR
THE APPELLANT:
INSTRUCTED
BY:
FOR
THE RESPONDENT:
INSTRUCTED
BY:
ANNEXURE
A
IN
THE HIGH COURT Or SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
Case
No: 54183/08
In
the matter between:
The
National Director of Public
Prosecutions
......................................................................................................
Applicant
and
Barbara
Daniels
.................................................................................................
First
Respondent
Venicia
Naidoo
..................................................................................................
Second
Respondent
Sanoosha
Abrahams
.....................................................................................
Third
Respondent
Thiloshnee
Naidoo
...........................................................................................
Fourth
Respondent
In
re:
1.
Sectional Title Number 56959/2003. SS Lana's Lane 223 Unit No 2
Clubview Ext 63, 912, Tswane
2
Sectional Title Number 48625/2001, SS No 59 Villa Mia Portion 128 of
the farm Lyttelton No 381, Centurion
3
Sectional Title Number 52297/2000, SS No 13 Noons Place Buccleuch
Township,
Johannesburg
4.
Erf 156. NumbiPark Township, Mpumalanga
5.
Farm
385, Portion 786, Knopsiaagte
6.
Portion 14 of Erf 1694, Extension
1,
Laudium
7.
Mercedes
Benz ML500 vehicle with registration number RCM538GP
8
Mercedes
Benz C32 AMG with registration number RCJ590GP
DRAFT
ORDER
IT
IS HEREBY ORDERED: -
1.
An order is granted in terms of the provisions of section 50 of the
Prevention of Organised Crime Act, No. 121 of 1998 (POCA)
declaring
forfeit to the State certain property (the property) namely:
1.1
Sectional Title Number 56959/2003, SS Lana's Lane 223 Unit No 2
Clubview Ext 63, 912, Tswane.
1.2
Sectional Title Number 48625/2001, SS No 59 Villa Mia Portion
128 of the farm Lyttelton No 381, Centurion.
1.3
Sectional Title Number 52297/2000, SS No 13 Noon's Place
Buccleuch Township, Johannesburg,
1.4
Erf 156, NumbiPark Township. Mpumalanga.
1.5
Farm 385, Portion 786, Knopslaagte.
1.6
Portion 14 of Erf 1694. Extension 1, Laudium,
1.7
Mercedes Benz ML500 vehicle with registration number
RCM538GP.
1.8
Mercedes Benz C32 AMG with registration number RCJ590GP.
which
property is presently subject to a preservation of property order
granted by this Honourable Court under the above case number
on the
19 March 2009.
2.
Directing that the curator bonis appointed by this Court in terms of
the order granted on the 19 March 2009 continue to act as
such with
authority to perform all the functions specified in POCA subject to
the provisions of the
Administration of Estates Act, 66 of 1965
, and
to the supervision of the Master of the High Court.
3.
The curator bonis shall have all such powers, duties and authority as
provided for in POCA and in this order, including such
powers, duties
and authority reasonably incidental thereto and shall, in addition,
be subject to the applicable provisions of the
Administration of
Estates Act, 66 of 1965
The fees and expenditure of such curator
bonis reasonably incurred in the execution of his duties, shall be
paid from the proceeds
of the forfeited property.
4
.
In
terms of
section 56(2)
of POCA, the property shall vest in the
curator bonis on behalf of the State on the date on which the
forfeiture order takes
effect
5
The
curator bonis is authorised, as of the date on which the forfeiture
order takes effect to:
5.1
Assume control of the property and take it into his custody.
5.2
Dispose of the property by private sale or other means.
5.3
Subject to any order of this Court for the exclusion of any interest
in the property under
section 52(2)
of POCA, to deduct his fees and
expenditure which were approved by the Master of the High Court.
5.4
Deposit the balance of the proceeds into the Criminal Assets Recovery
Account established under
section 63
of POCA, number 80303056 held at
the South African Reserve Bank
;
Vermeuien Street, Pretoria.
5.5
Perform any ancillary acts which, in the opinion of the curator
bonis, but subject to any directions of the Criminal Assets
Recovery
Committee established under section
65
of
POCA., are necessary.
6.
The curator bonis shall as soon as possible but not later than within
a. period of 90 days of this order coming into effect,
file a report
with the Applicant and the Master of the High Court, indicating the
manner in which he:
6.1
Completed the administration of the property mentioned above and
6.2
Complied with the terms of this order,
7.
The Registrar of this Honourable Court must publish a notice of this
order in the Government Gazette as soon as practical after
the order
Is made,
8.
Any person affected by the forfeiture order, and who was entitled to
receive notice of the application under
section 48(2)
but who did not
receive such notice, may within 45 days after the publication of the
notice of the forfeiture order in the Gazette,
apply for an order
under
section 54
of POCA excluding his or her interest in the
property, or varying the operation of the order in respect of the
property.
9.
All the paragraphs of the order operate with immediate effect, except
paragraphs 4, 5 and 6, which will only take effect on the
day that a
possible appeal is disposed of in terms of
section 55
, or on the day
that an application for the exclusion of interests in forfeited
property in terms of
section 54
of POCA is disposed of, or after
expiry of the period in which an appeal may be lodged or application
be made in terms of
section 54
of POCA.