About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2010
>>
[2010] ZAECPEHC 65
|
|
National Director of Public Prosecution v Makosholo and Others (1265/2010) [2010] ZAECPEHC 65; 2011 (2) SACR 598 (ECP) (9 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case no: 1265/2010
Date Heard:04/11/2010
Date Delivered:09/11/10
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC
….......................
APPLICANT
PROSECUTIONS
Versus
TEBOHO
LIVINGSTON MAKOSHOLO
….................
1
ST
RESPONDENT
(born
MAFATA)
THABO
RICHARD METIBELA N.O
…......................
2
ND
RESPONDENT
JOHN
MGALOSI N.O.
….........................................
3
RD
RESPONDENT
ANNA
MAKOSHOLO
…..........................................
4
TH
RESPONDENT
THEMBA
NDONGENI
…........................................
5
TH
RESPONDENT
SIDWELL
PAMBA
….............................................
6
TH
RESPONDENT
JUDGMENT
SMITH
J:
[1] The matter which was set down
for hearing on the 4
th
of November 2010 is an application
for forfeiture in terms of s. 50 of the Prevention of Organized Crime
Act, 121 of 1998 (“POCA”)
of an amount of R 2 497 454
which had been found at the home of the first respondent, on the
basis that it is an instrumentality
of an offence or the proceeds of
an offence as envisaged in the said section. The foresaid amount of
money is subject to a preservation
order which was issued on 6 May
2010.
[2] The first respondent has
however, at the commencement of the hearing, applied for an order in
terms of rule 11 of the Uniform
Rules of Court that this application
and another, which the applicant had brought against the first
respondent and one Anna Makosholo,
under case number 2630/10, be
consolidated and heard as one. The latter application was brought in
terms of s. 26 of the POCA for
a restraint order in respect of other
properties, pending the finalization of criminal proceedings which
have been instituted against
the first respondent. That application
has been enrolled for hearing before this court on Thursday, 18
November 2010.
[3] The application was opposed by
the applicant. To avoid confusion I refer to the parties as they are
in the main application.
[4] Mr Ronaasen, who appeared on
behalf of the applicant, submitted that in determining these
applications the court will be engaged
in substantially the same
enquiries in respect of both fact and law. He submitted further that
the forfeiture and restraint applications
both had their origins in
the same set of facts, namely the arrest of the first respondent for
allegedly dealing in drugs. In the
forfeiture application the
applicant will have to show that the assets which are sought to be
declared forfeited are the proceeds
of unlawful activity,
alternatively, the instrumentality of an offence. Similarly, so he
submitted, in the restraint application
the applicant will have to
show that the assets sought to be restrained are the proceeds of
unlawful activities. He submitted that
under the circumstances it
would be convenient for the two applications to be consolidated and
heard as one.
[5] He submitted further that the
consolidation of the applications will avoid multiplicity of
proceedings and the attendant additional
costs. In his submission if
the consolidation is not ordered the first respondent will be obliged
to incur substantial legal costs
to oppose the two applications. If
on the other hand consolidation is ordered, he will only have to
incur the expense of opposing
one application.
[6] It is trite that in exercising
its powers in terms of Rule 11 the court has a wide discretion. The
onus is on the applicant
to show that it would be convenient to order
the consolidation and that there will not be substantial prejudice to
the other side.
[7] Regarding the meaning of
"
prejudice"
see the matter of
New Zealand
Insurance Co Ltd v Stone and Others
1963 (3) SA 63
(C) at 69
where
Corbett JA said the following
:
“
In
such an application for consolidation the Court, it would seem, has a
discretion whether or not to order consolidation, but in
exercising
that discretion the Court will not order a consolidation of trials
unless satisfied that such a course is favoured by
the balance of
convenience and that there is no possibility of prejudice being
suffered by any party. By prejudice in this context
it seems to me is
meant substantial prejudice sufficient to cause the Court to refuse a
consolidation of actions, even though the
balance of convenience
would favour it. The authorities also appear to establish that the
onus
is
upon the party applying to Court for a consolidation to satisfy the
Court upon these points.”
See also in this regard the matter
of
Mpotsha v Road Accident Fund
2000 (4) SA 696
(C).
[8] The question of prejudice to the
other party obviously becomes relevant only if the court is of the
view that it would be convenient
for the matters to be consolidated.
The issue of convenience is the paramount consideration. As is the
case with the joinder of
third parties under rule 13, the purpose of
consolidation of actions and/or applications is to ensure that
matters in which substantially
the same facts or points of law have
to be pronounced upon, are tried at a single hearing in order to
avoid duplication, save costs
and expedite proceedings. See in this
regard
Nel V Silicone Smelters (Edms) BPK en ander v
1981 (4) SA
792
(A)
801-802
.
[9] When considering the issue of
convenience, the approach is the same as that in applications for
separation in terms of Rule
33 (4). In the matter of
Minister of
Agriculture v Tongaat Group Ltd. 1976 (2) 357 (D),
at 363C-D
Miller J said the following regarding the meaning of "convenience"
in the context of Rule 33(4):
“
The word
"
convenient
"
in the context of Rule 33(4) is not used, I think, in the narrow
sense in which it is sometimes used to convey the notion
of facility
or ease or expedience. It appears to be used to convey also the
notion of appropriateness; the procedure would be convenient
if, in
all the circumstances, it appeared to be fitting, and fair to all the
parties concerned.”
See also in this regard the matter
of
S v Malinde 1990 (1) 57 A
at page 68 where it was held that
the
"convenience
" is not only those of the parties
but also of the court.
[10] It is therefore necessary to
consider the provisions of the respective sections which govern the
granting of forfeiture and
restraint orders respectively, and the
jurisdictional facts which an applicant is required to establish in
order to succeed in
either.
[11] In terms of s. 50 of the POCA
the court shall make a forfeiture order if it satisfied on the
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”
[11] The jurisdictional facts
required for a restraint order in terms of s. 26 of the POCA on the
other hand are as follows (s.
25):
(a)
i. A prosecution for an
offence has been instituted against the defendant concerned;
ii. Either a confiscation order
has been made against the defendant or it appears to the court that
there are reasonable grounds
for believing that a confiscation order
may be made against the defendants;
iii. The proceedings against the
defendant have not been concluded; or
(b) When –
(i) the court is satisfied that a
person is to be charged with an offence; and
(ii) it appears to the court that
there are reasonable grounds for believing that a confiscation order
may be granted against such
a person.”
[12] From the above it is clear that
the factual bases required for an applicant to be successful in
either application are fundamentally
different. The fact that both
may have their respective geneses in the same event, (for example in
this case the alleged dealing
in drugs by the first respondent,) does
not necessarily mean that an applicant will be called upon to
establish the same set of
facts in both applications.
[13] On this basis, in my view,
there can be no conceivable advantages to consolidate the two
matters. The two applications are
fundamentally different and do not
concern the determination of substantially the same question of law
or fact. It would in my
view therefore not be convenient to
consolidate the two matters. The only convenience which Mr Ronaasen
could point to was the
fact that the Respondent may save some legal
costs if the matters are argued together. This is in my view not
sufficient to order
consolidation under circumstances where the
consolidation would clearly not be convenient either to the court or
the applicant.
Insofar as it may be relevant, I may mention that the
main application was also postponed to the 18
th
of
November 2010, so both applications will be heard on the same day in
any event.
[14] Mr De Jager, who appeared on
behalf of the applicant, has submitted that in the in the event of
the application being unsuccessful,
the court should order punitive
costs against the first respondent. In my view there is no basis for
such an order. The applicant
is already mulcted with costs attendant
upon the postponement of the main application.
[15] In the result I make the
following order:
(1) The application for
consolidation is dismissed;
(2) The first respondent is ordered
to pay the applicant's costs on the party and party scale.
_______________________
J.
E. SMITH
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the Applicant : Advocate Ronaasen
Attorney
for the Applicant : State Attorney
29
Western Road
CENTRAL
PORT
ELIZABETH
(REF:838/2010/Y)
Counsel
for the Respondent : Advocate De Jager
Attorney
for the Respondent : Griebenow Attorneys
157
Cape Road Mill Park
PORT
ELIZABETH
Ref:
R. A. Griebenow
Date
Heard : 04 November 2010
Date
Delivered : 09 November 2010