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
>>
2011
>>
[2011] ZAECPEHC 10
|
|
National Director of Public Prosecutions v Bezuidenhout and Another (3339/2010) [2011] ZAECPEHC 10 (29 March 2011)
Not Reportable
In the High Court of
South Africa
(Eastern Cape, Port
Elizabeth) Case No 3339/2010
Date heard: 24 March
2011
Delivered: 29 March
2011
In the matter between
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
….........................
Applicant
and
HENDRIK CORNELIUS
BEZUIDENHOUT (JUNIOR)
…................
First
Respondent
HENDRIK CORNELIUS
BEZUIDENHOUT (SENIOR)
…..........
Second
Respondent
Summary
[Application
to declare Blue VW Microbus with registration number DPF033 EC
forfeit in terms of
section 53(1)
of the
Prevention of Organised
Crime Act, 121 of 1998
. ].
JUDGMENT
GOOSEN AJ
This is an application
brought in terms of
section 48
(1) read with
section 53(1)
of the
Prevention of Organised Crime Act, Act
121 of 1998 (hereinafter the
Act), to declare a VW Microbus with registration letters and numbers
DPF033EC, owned by the Second
Respondent, forfeit to the state. The
application is opposed by the Second Respondent, he having filed a
Notice of Intention
to Defend to which is annexed a handwritten
statement setting out the basis of his defence.
A
preservation order was granted by Tshiki J on 9 November 2010. A
copy of the Order was served on the Second Respondent on 17
November
2010. He also accepted service on behalf of the First Respondent,
who was not present his residence, on that day. The
Notice in terms
of
section 39(1)
of the Act was published in the
Government
Gazette
on
19 November 2010.
On 23 November 2010 the
Second Respondent delivered a Notice of Intention to Defend to the
office of the State Attorney. Annexed
to that Notice is an affidavit
deposed to by the Second Respondent in which he states that the
motor vehicle, which is the subject
matter of the application, was
taken by the First Respondent without his knowledge and permission.
He further states that he
is a member of the Norwich Taxi
association and that he uses the vehicle to earn an income. The
affidavit goes further to state
that this is the second occasion
when his son, the First Respondent, has used a vehicle belonging to
him without his permission
to transport abalone and that on the
previous occasion he was compelled to sell the vehicle.
This application was
issued on 14 January 2011 although it was only served on the
Respondents on 27 January 2011. The matter came
before Hartle J on 8
February 2011 and was then postponed to the opposed motion court
roll on 24 March 2011. When the matter
came before me, both the
First and Second Respondent were present at court and the Second
Respondent appeared in person to make
submissions to me regarding
the forfeiture sought.
The essential facts upon
which the Applicant relies are not in dispute. They are that on 21
July 2010 on the R330 road in the
vicinity of Humansdorp members of
the South African Police Services stopped a blue VW Microbus, with
registration letters DPF033EC.
The vehicle was being driven by the
First Respondent. Having received permission to search the vehicle
from the First Respondent,
a green bag was found. The First
Respondent opened the bag in the presence of the police officer,
disclosing a large number of
abalone. When asked whether the bag
belonged to him the First Respondent apparently replied that he was
transporting it to Port
Elizabeth. The First Respondent was arrested
and taken to the Humansdorp police station where the abalone was
counted –
some 277 units being found – photographed and
seized as evidence. The vehicle in which the First Respondent was
transporting
the abalone was impounded. The First Respondent was
subsequently charged with possession of abalone without a permit and
is,
so I understand it, soon to stand trial in Humansdorp.
In terms of
section 48
the National Director of Public Prosecutions may apply to court, if
a preservation order has been made, for an order forfeiting
to the
state all or any of the property which is the subject of a
preservation order.
Section 50
(1) provides that:
The High Court shall,
subject to
s 52
, make an order applied for under
s 48
(1) if the
Court finds on a balance of probabilities that the property concerned
–
Is an instrumentality of
an offence referred to in Schedule 1; or
Is the proceeds of
unlawful activities.
The term
“instrumentality of an offence” is defined in
section 1
as “any property which is concerned in the commission or
suspected commission of an offence…” In this instance
the offence which is included in Schedule 1 is that concerned with
dealing in, being in possession of or conveying endangered,
scarce
and protected game or plants or parts or remains thereof in
contravention of a statute or provincial ordinance. It is
clear from
the evidence presented by the Applicant that the possession of
abalone constitutes an offence as contemplated by the
Schedule.
The
determination as to whether property is “concerned in “
the commission of an offence requires, on a proper construction
of
the Act, a determination as to whether the property concerned
facilitates the commission of the offence and is directly causally
connected with the commission of the offence.
1
There can be no dispute
that the property in this instance facilitated the commission of the
offence for which the First Respondent
has been charged and is
directly and integrally connected with that offence.
In
terms of
section 50
of the Act a court is obliged, subject to
section 52
, to make a forfeiture order if it finds, on a balance of
probabilities, that the property concerned is an instrumentality of
an offence. That section is however subject to the court’s
discretion not to order forfeiture if it is not satisfied that
the
consequences of the forfeiture are proportionate to the purpose for
which such order is made.
2
Section 52
makes
provision for the exclusion of an interest in property when a
forfeiture order is made, on application made by a person
who
entered an appearance to defend the matter or a person granted leave
in terms of
section 49
of the Act.
Section 52(2A)
provides that:
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 1 or property
associated with terrorist and related activities, if it finds on a
balance of probabilities that the
applicant for the order had
acquired the interest concerned legally, and –
Neither knew nor had
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 property associated with terrorist and related
activities; or
Where the offence
concerned had occurred before the commencement of this Act, the
applicant has since the commencement of this
Act taken all
reasonable steps to prevent the use of the property concerned as an
instrumentality of an offence referred to in
Schedule 1 or property
associated with terrorist and related activities.
The Second Applicant has
not made application for the exclusion of an interest in the subject
property. All that has occurred
is that the Second Respondent, in
filing an appearance to defend, alleged that the motor vehicle,
which is owned by him, was
used by his son, the First Respondent,
without his knowledge and permission and that he uses the property
to earn an income as
a taxi operator.
At the hearing of the
matter the Second Respondent re-iterated his prior statement and
asked that the court should not declare
the vehicle forfeit on that
basis and having regard to the fact that he utilises the motor
vehicle as a taxi with which to earn
income. Significantly, the
papers contain an affidavit deposed to by the Chairperson of the
taxi association of which the Second
Respondent is a member stating
that the motor vehicle had not been registered as taxi with the
association because it had been
under repair for more than a year
prior to its seizure. The Second Respondent confirmed this when he
explained in his submissions
that the vehicle had been inoperative
for “more than a year” because he could not afford to
have it repaired. He
said that he had only managed to have the
vehicle repaired some days before the First Respondent was arrested.
Even if the Second
Respondent’s appearance at the hearing and the submissions
made by him are generously construed as an
application for exclusion
of his interest in the motor vehicle, it must fail. It is common
cause that the First Respondent has
on a previous occasion utilised
the Second Respondent’s vehicle to transport abalone illegally
for “his friends”.
The Second Respondent was aware of
the fact that the First Respondent was associated with persons
involved in illegal abalone
trading. There is no evidence as to what
steps the Second Respondent took to prevent his son from gaining
access to and utilising
his motor vehicle. Rather than establish on
a balance of probabilities that the Second Respondent did not know
or did not reasonably
suspect that the property was or would be used
as an instrumentality of an offence, the evidence and material
before me establishes
the contrary.
In my view the granting
of an order of forfeiture will not be disproportionate. The offence
for which the First Respondent is
charged is prevalent in this area.
Substantial quantities of abalone are illegally removed along our
coastline and then transported
to various locations before it is
shipped out of the country to be sold in countries in the east. This
basic pattern of the illegal
abalone trade is a matter of public
record. This illegal trade poses a serious threat to the abalone
resource. This too is a
matter of public record.
In this instance the
First Respondent was found in possession of a bag containing 277
abalone. This is a sizeable quantity, the
value of which is
substantial. The value of the property sought to be forfeited is not
such as would render such forfeiture disproportionate.
In the circumstances I
make the following order:
An order is granted in
terms of section 53(1)(a) of the Prevention of Organised Crime Act,
No 121 of 1998 (the “Act”)
declaring forfeit to the
state a blue VW Microbus with registration number DPF033EC held
under case registered as Humansdorp
CAS 309/07/2010 (the
‘Property”);
In terms of section
50(6) of the Act paragraph 5 below shall take effect 45 days after
publication of a notice of this Order in
the Government Gazette
unless an appeal is instituted before this time, in which event this
Order will take effect on the date
of finalisation of such appeal;
Pieter Kapp, who was
appointed to take charge and care of the property in terms of the
Preservation Order issued by this Court,
is authorised and directed
to continue to act in accordance with such Order for the purposes of
this Order;
Pending the taking
effect of this Order the property shall remain in the custody of
Pieter Kapp who is authorised to sign all
registration documents in
respect of the property;
Pieter Kapp shall, upon
the coming into operation of this Order, cause the property to be
sold by private treaty or public auction
and is directed to deposit
the proceeds of such sale into the Criminal Assets Recovery Account;
The Applicant shall
cause a copy of this Order to be served on the Respondents; and
The Applicant is
directed to publish a notice of this Order in the Government Gazette
as soon as is practicable.
GOOSEN
AJ
For
the Applicant: Mr W. Kingsley
instructed by
The State Attorney
For
the Second Respondent: In person
1
National
Director of Public Prosecutions v Geyser and Another
[2008] ZASCA 15
;
2008 (2)
SACR 103
(SCA) at par. 17; see also
National Director of Public
Prosecutions v R O Cook Properties (Pty) Ltd; National Director of
Public Prosecutions v 37 Gillespie
Street Durban (Pty) Ltd and
Another; National Director of Public Prosecutions v Seevnarayan
2004 (2) SACR 2008
(SCA);
Mohunram and Another v National
Director of Public Prosecutions (Law Review Project as
Amicus
Curiae
)
[2006] ZASCA 12
;
2007 (2) SACR 145
(CC)
(2007 (4) SA 222)
2
NDPP
v Geyser
(supra) at pat 19