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[2013] ZAECPEHC 38
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National Director of Public Prosecutions v Nqini (4190/12) [2013] ZAECPEHC 38 (16 August 2013)
11
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
Case No.4190/12
Date Heard: 15/8/13
Date Delivered:
16/8/13
Not Reportable
In the matter between:
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS .
................................
Applicant
and
TANGO WORDSWORTH NQINI
.................................................................
Respondent
Prevention of
Organised Crime Act 121 of 1998
– application for forfeiture
order, preservation order having been granted – requirements
for rescission not met –
whether dispute of fact created –
whether defence that property not proceeds of unlawful activities
established
JUDGMENT
PLASKET, J:
[1] On 27 December 2012
Smith J granted a preservation order in favour of the applicant (the
NDPP) and against the respondent (Nqini)
in respect of an Audi motor
vehicle and R 27 000 in cash. The order was made in terms of s
38(1)(a) of the Prevention of Organised
Crime Act 121 of 1998 (POCA).
The NDPP now applies for a forfeiture order in respect of the motor
vehicle and the cash, in terms
of ss 48 and 53 of POCA. Nqini has
brought what he terms an application for the rescission of the
preservation order. For reasons
that I shall explain in due course, I
shall treat this simply as his opposition to the application for the
forfeiture order, rather
than as an application for rescission.
Relevant provisions of
POCA
[2] The long title of
POCA states that it is intended, inter alia, to ‘provide for
the recovery of the proceeds of unlawful
activity’, as well as
for ‘the civil forfeiture of criminal property that has been
used to commit an offence’
and ‘property that is the
proceeds of unlawful activity’. It creates various mechanisms
to achieve these and other
of its objects.
[3] Section 38 deals with
preservation orders. It states:
‘
(1) The
National Director may by way of an ex parte application apply to a
High Court for an order prohibiting any person, subject
to such
conditions and exceptions as may be specified in the order, from
dealing in any manner with any property.
(2) The High Court shall make an order
referred to in subsection (1) if there are reasonable grounds to
believe 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.
(3) A High Court making a preservation
of property order shall at the same time make an order authorising
the seizure of the property
concerned by a police official, and any
other ancillary orders that the court considers appropriate for the
proper, fair and effective
execution of the order.
(4) Property seized under subsection
(3) shall be dealt with in accordance with the directions of the High
Court which made the
relevant preservation of property order.’
[4] Once a preservation
order has been granted, the NDPP must, in terms of s 39, give notice
to anyone of whom he or she is aware
who has an interest in the
property and publish a notice of the order in the
Government
Gazette
. Anyone with an interest in the
property may then enter an appearance to oppose the granting of a
forfeiture order or apply for
the exclusion of his or her interest
from the forfeiture order. The entry of appearance to oppose must be
made within 14 days of
the service of the preservation order on the
person concerned. Such an appearance to oppose must, according to s
39(5), contain
full particulars of the address of the person
concerned, and be accompanied by an affidavit in which is stated:
‘
(a) full
particulars of the identity of the person entering the appearance;
(b) the nature and extent of his or
her interest in the property concerned; and
(c) the basis of the defence upon
which he or she intends to rely in opposing a forfeiture order or
applying for the exclusion of
his or her interests from the operation
thereof.’
[5] In terms of s 40, a
preservation order expires 90 days after the date on which notice of
the making of the order is published
in the
Government
Gazette
unless, as in this case, there is an
application for a forfeiture order pending before the court.
[6] Section 47 concerns
the variation and rescission of preservation orders. It provides:
‘
(1) A High
Court which made a preservation of property order-
(a) may on application by a person
affected by that order vary or rescind the preservation of property
order or an order authorising
the seizure of the property concerned
or other ancillary order if it is satisfied-
(i) that the operation of the order
concerned will deprive the applicant of the means to provide for his
or her reasonable living
expenses and cause undue hardship for the
applicant; and
(ii) that the hardship that the
applicant will suffer as result of the order outweighs the risk that
the property concerned may
be destroyed, lost, damaged, concealed or
transferred; and
(b) shall rescind the preservation of
property order when the proceedings against the defendant concerned
are concluded.’
[7] Section 48 and
following sections deal with the forfeiture of property. Section
48(1) and (2) provide that if a preservation
order is in force, the
NDPP ‘may apply to a High Court for an order forfeiting to the
State all or any of the property that
is subject to the preservation
of property order’ on 14 days’ notice to anyone who has
entered an appearance to oppose
in terms of s 39(3).
[8] In terms of s 50, a
court shall make a forfeiture order (subject to it excluding certain
interests from the operation of the
order) if it finds on a balance
of probabilities that the property is either ‘an
instrumentality of an offence referred to
in Schedule 1’ of
POCA or is ‘the proceeds of unlawful activities’ or is
‘property associated with terrorist
and related activities’.
Finally, s 53 empowers a
court to make a forfeiture order by default. This application for a
forfeiture order was made in reliance
on s 53 because no appearance
to oppose had been entered by Nqini or anyone else within the time
prescribed.
[9] The case law makes it
plain that the preservation and forfeiture provisions here under
consideration are ‘not conviction
based’ and ‘may
be invoked even when there is no prosecution’.
1
As a result, ‘the
guilt or wrongdoing of owners or possessors of property is “not
primarily relevant to the proceedings”’
because the focus
is really on the role of the property in relation to criminal
activity, rather than the state of mind of the
respondent.
2
[10] With that
legislative overview and that briefest of summaries of how the
Constitutional Court and Supreme Court of Appeal have
categorised the
provisions with which this case is concerned, I turn now to the facts
and the determination of the issues arising
from them.
The facts
[11] On 21 November 2012
cash of approximately R1 000 000 was stolen from the home
of Dr Bongani Nqini, the brother of
the respondent. Dr Nqini made a
statement about the circumstances of the theft. He had left his house
locked and with the alarm
set. When he returned he found the gate was
open. It was not, however, damaged, leading him to believe that the
thief had opened
the gate with a remote. He first checked the garage
but found that the car in it was still there. He entered his home and
found
everything in order until he entered the main bedroom, which he
found to have been disturbed. He discovered that two wall safes
had
been removed and stolen. They contained about R1 000 000 in
cash as well as jewellery and other items.
[12] Dr Nqini stated that
only two people could have entered his house and de-activated the
alarm system. They were his brothers.
His suspicion immediately fell
on the respondent for two reasons. First, the respondent had, on a
previous occasion, stolen his
car, and secondly, he was unemployed.
[13] It is common cause
that on the following day, Nqini bought an Audi motor vehicle from
Auto Executive in Newton Park. He wanted
to pay for it in cash but
the manager of the firm, Mr Steve Roberts, told him to deposit the
cash in its account and bring proof
of having done so. He did so at
about 13h00 that day, having deposited 2 600 R100 notes into the
account of Auto Executive.
The vehicle was handed over to Nqini but
he was told to return to collect the licence papers. It was duly
licenced in his name.
[14] On 21 December 2012,
one Sergeant Moegamet Humphries, the investigating officer in the
theft matter, made enquiries of Roberts
about the sale. Roberts told
him that Nqini had to return to collect the spare keys and licence
papers. Humphries asked to be informed
when he did so. About an hour
later, Nqini arrived and Roberts contacted Humphries who arrested
Nqini and searched the vehicle.
He found R27 000 in R100 notes
in the vehicle.
[15] In a warning
statement taken, I presume, after his arrest (in which case, the date
of 22 November 2012 is erroneous) Nqini
denied having stolen the
money from his brother but offered no explanation whatsoever for his
purchase of the vehicle or his possession
of the cash.
[16] In his affidavit
filed in support of what was described as a rescission application,
Nqini stated that he had lost his job
at the New Law Courts in Port
Elizabeth in 2009 and had been unemployed since then. He does not
deny, however, the allegation made
by his brother that he had stolen
a vehicle belonging to his brother. He also made no mention of two
rather curious facts that
were disclosed in reply: he does not have a
driver’s licence and the person who is identified for purposes
of insuring the
vehicle as its regular driver is one Mr M Soloshe,
who is mentioned nowhere in the papers. (Leave has not been sought by
Nqini
to reply to these allegations.)
[17] Nqini’s
version is this. In July 2002, an old friend, one Mr Thobani
Notshokovu, who is a businessman, asked him to assist
in managing a
night club in King William’s Town. Because Notshokovu knew that
Nqini needed money and transport, he gave him
R260 000 in cash
to purchase a vehicle. The idea was that this would be an advance.
Later, he gave him R27 000 as well
for ‘supplies at the
club in King William’s Town’. That is the extent of the
detail provided by Nqini, although
he refers to the supporting
affidavit of Notshokovu.
[18] Notshokovu states
that he is a businessman with, it would appear, business interests of
a varied nature. He said that he had
hired Nqini in July 2012 as the
manager of his night club in King William’s Town to work as an
office manager. He then says,
and this is the extent to which their
contractual relationship is explained:
‘
8. In terms
of our verbal agreement, Applicant would not be paid a salary for the
first few months but rather I was to advance him
a sum of
R260 000.00. This money was to buy a car as he desperately
needed to have transport. This was to assist him in his
duties as
manager of the club in King William’s Town but also his travels
between King William’s Town and Port Elizabeth,
which is his
home. Also, in terms of our plan, Applicant and I are also working
together on plans to open another club in Port
Elizabeth which we
intend to run as partners.
9. Our agreement on this money was
never reduced to writing. I have known the Applicant all my life. I
have been very close to him
all my life. I know him very well and
trust him very well. Therefore, the need for this agreement to be
reduced to writing and
signed by us never arose. We never saw the
need to involve third parties in this either. According to our
agreement, the Applicant
would pay me back out of the business he
generated for the club: market etc.’
[19] As for the R27 000,
he says prior to meeting Nqini on 20 December 2012 to discuss the
operation of the night club in King
William’s Town, Nqini had
requested money for the club, he had obtained the money and had
handed it over to Nqini at their
meeting.
[20] I have mentioned
that, in his replying affidavit, the deponent on behalf of the NDPP
states that his office’s investigations
revealed that Nqini
does not have a driver’s licence and that, for insurance
purposes, he had stated that the regular driver
of the vehicle was
one Mr M Soloshe. In addition, it appears that the insurance cover
for the vehicle amounts to R1 596.24
per month.
The issues
[21] The first issue that
must be dealt with is the nature of the respondent’s
opposition. He claims to have brought an application
to rescind the
preservation order but not one of the allegations necessary to
sustain such an application in terms of s 47 of POCA
have been made
in his affidavit. Clearly, whatever his intention, he has not brought
a rescission application in terms of s 47.
I am prepared to treat his
opposition as being opposition to the grant of the forfeiture order
as contemplated by s 39(3), albeit
that it was entered out of time. I
am prepared to condone that defect, particularly in the light of the
NDPP’s attitude that
condonation would not be opposed.
[22] From a reading of
Nqini’s affidavit, it is apparent that the defence that he
raises to the application for the forfeiture
order is that the
vehicle and the cash are not the proceeds of unlawful activities.
That requires a consideration of the facts.
[23] It is trite that in
motion proceedings such as these where final relief is sought, that
relief may only be granted, as a general
rule, if ‘those facts
averred in the applicant’s affidavits which have been admitted
by the respondent together with
the facts alleged by the respondent,
justify such an order’.
3
This general rule is
qualified: it only applies where the denial by a respondent of facts
alleged by an applicant ‘raise a
real, genuine or
bona
fide
dispute
of fact’.
4
Where no such dispute of
fact is raised, and the court is satisfied as to the inherent
credibility of the applicant’s version,
it will accept the
applicant’s facts or, where the allegations or denials of the
respondent are ‘far-fetched or clearly
untenable’ they
may be rejected on the papers.
5
In summing up the
situations in which a court will accept an applicant’s version
despite a respondent’s denial, Harms
DP, in
National
Director of Public Prosecutions v Zuma
6
stated:
‘
It may be
different if the respondent’s version consists of bald or
uncreditworthy denials, raises fictitious disputes of
fact, is
palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely on the
papers.’
[24] One further aspect
bears mention. It concerns what is required of a respondent to create
a real, genuine or
bona
fide
dispute of fact. In
Wightman
t/a JW Construction v Headfour (Pty) Ltd & another
7
Heher JA stated:
‘
A real,
genuine and bona fide dispute of fact can exist only where the court
is satisfied that the party who purports to raise the
dispute has in
his affidavit seriously and unambiguously addressed the fact said to
be disputed. There will of course be instances
where a bare denial
meets the requirement because there is no other way open to the
disputing party and nothing more can therefore
be expected of him.
But even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party
and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts
averred are such that the disputing
party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true
or accurate but, instead of doing so,
rests his case on a bare or ambiguous denial the court will generally
have difficulty in
finding that the test is satisfied. I say
“generally” because factual averments seldom stand apart
from a broader matrix
of circumstances all of which needs to be borne
in mind when arriving at a decision. A litigant may not necessarily
recognise or
understand the nuances of a bare or general denial as
against a real attempt to grapple with all relevant factual
allegations made
by the other party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may
be, and
will only in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a legal
adviser
who settles an answering affidavit to ascertain and engage
with facts which his client disputes and to reflect such disputes
fully
and accurately in the answering affidavit. If that does not
happen it should come as no surprise that the court takes a robust
view of the matter.’
[25] And, in
Naidoo
& another v Sunker & others
,
8
Heher JA, after referring
to his judgment in
Wightman
,
stated that what he had said in that case about the adequacy of
allegations in answering affidavits for purposes of the
Plascon-Evans
rule
‘applies with equal force to a respondent who endeavours to
raise a special defence’.
[26] I turn now to
consider the version put up by Nqini. In my view, it suffers from a
number of difficulties. In the first place,
the detail concerning
every single aspect of the defence pleaded is extremely scanty. So,
for instance, the arrangement between
Nqini and Notshokovu is
described in the vaguest of terms and it is not even clear from the
affidavits whether Nqini had started
to work at the club in King
William’s Town. At best, the affidavits are ambiguous on this
point.
[27] Secondly, the terms
of the agreement that R260 000 would be advanced to Nqini are
vague as well, particularly as to how
the money would be repaid. All
that is said is that ‘[a]ccording to our agreement, the
Applicant would pay me back out of
the business he generated for the
club: market etc’. This is meaningless, especially when it is
borne in mind that Nqini
was a mere employee and not a partner in
respect of the King William’s Town club. I would have expected
a detailed explanation
concerning the arrangements that may have been
made to ascertain the value of the ‘business he generated for
the club’,
some structured arrangement for determining the
quantum and regularity of the repayment, and what would happen if
Nqini did not
generate any business for the club. As Nqini was, as
his duties were described by Notshokovu, nothing more than the office
manager,
it was obviously incumbent on Nqini and Notshokovu to
explain how he was expected to generate business for the club if this
was
how he was to repay the advance.
[28] The absence of
detail in all of these respects is telling, especially when there is
no written record of the agreement. How
Nqini was to operate the
vehicle without a salary for ‘the first few months’ also
cries out for explanation as does
the question of how he managed to
pay the monthly insurance policy of R1 596.24 and whether he
paid Soloshe as his driver.
[29] Having taken close
to four few months in order to secure the assistance of Notshokovu as
a supporting witness, it would have
been expected that Nqini would
have made sure that he was provided with documentary proof of the
money having been advanced by
his friend and an explanation as to why
it had been paid to him in cash, as it clearly had. If it had been in
an account, Notshokovu
would have been able to have shown the source
of the money with ease and if not, I would have expected him to
explain where it
had come from. Absolutely no detail is provided as
to when and where Notshokovu gave Nqini the money and why R260 000
was
decided upon as the advance. (One result of this lack of detail
was that, according to the deponent to the replying affidavit on
behalf of the NDPP, none of the bald allegations made in the
answering affidavits could be verified.) The same criticism can be
levelled at the allegations concerning the R27 000.
[30] In these
circumstances, I am of the view that Nqini has not done sufficient to
create a real, genuine or
bona fide
dispute of fact as to the
source of the R260 000 and the R27 000. As I am satisfied
that the NDPP’s allegations
as to the source of this money and
Nqini’s role in its acquisition are inherently credible, I
accept the correctness of those
averments.
[31] In any event, I am
also of the view that Nqini’s version is palpably implausible,
far-fetched and clearly untenable.
For that reason it can be rejected
on the papers. When the facts that follow are stitched together, it
stretches the bounds of
credulity far too far to accept that Nqini
could have acquired the money concerned legitimately. Those facts are
that: (a) Nqini’s
brother was dispossessed of a large sum of
money on 21 November 2012; (b) in circumstances in which Nqini was
one of only two people
who could have gained entry to the house and
disarmed the alarm; (c) that he was unemployed and had been for about
three years;
(d) that, the very next day, he deposited 2 600
R100 notes into the account of Auto Executive in order to purchase a
vehicle
for R260 000; (e) that he was later found in possession
of R27 000 in cash; (f) his explanation is devoid of detail, is
irrational and makes no sense; and (g) he gave no explanation of his
possession of the money when he was arrested and had the opportunity
to do so, and only did so some months later.
[32] In these
circumstances, I am of the view that the NDPP has discharged the onus
to establish on a balance of probabilities that
the property
concerned was proceeds of illegal activities. The application must
therefore succeed.
The order
[33] The following order
is made.
(a) A blue Audi motor
vehicle with registration number FWV771EC, engine number BNS002668
and chassis number WUZZZ8E56N901011 and
R27 000 in cash (the
property), held under a case registered as Mount Road CAS 673/11/2012
are declared forfeit to the State
in terms of section 50 of the
Prevention of Organised Crime Act 121 of 1998.
(b) Paragraph (e) below
shall take effect 45 weekdays after publication in the
Government
Gazette
of this order, unless an appeal is instituted before this
time in which case this order shall take effect on the finalisation
of
the appeal, in the event of it being dismissed.
(c) Glyn Fraser, who was
appointed in the preservation order to take care of the property is
directed to continue acting as such
for the purposes of this order.
(d) Pending the taking
effect of this order, the property shall remain in the custody of
Fraser, who shall have authority to sign
all registration documents
pertaining to the property.
(e) After this order
takes effect, as contemplated in paragraph (b) above, Fraser shall
cause the Audi motor vehicle to be sold
by private sale or public
auction and the proceeds of this sale as well as the R27 000 in
cash shall be paid to Dr Bongani
Nqini.
(f) Payment to Dr Bongani
Nqini shall be regarded as payment to the State.
(g) The applicant is
directed to publish a notice of this order in the
Government
Gazette
as soon as is practicable and to serve a copy of the
order on the respondent.
(h) The respondent is
directed to pay the costs of this application.
_____________________
C Plasket
Judge of the High Court
APPEARANCES:
Applicant: S J Cubungu,
instructed by the State Attorney
Respondent: N Msizi,
instructed by S B Maqungu Attorneys
1
National
Director of Public Prosecutions & another v Mohamed NO &
others
2003 (4) SA 1
(CC)
para 16.
2
National
Director of Public Prosecutions v R O Cooke Properties (Pty) Ltd;
National Director of Public Prosecutions v 37 Gillespie
Street
Durban (Pty) Ltd & another; National Director of Public
Prosecutions v Seevnarayan
[2004]
2 All SA 491
(SCA) paras 20-21.
3
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H.
4
Plascon-Evans
at 634I.
5
Plascon-Evans
at 635A-C.
6
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26.
7
Wightman
t/a JW Construction v Headfour (Pty) Ltd & another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13.
8
Naidoo
& another v Sunker & others
(126/11)
[2011] ZASCA 216
(29 November 2011) para 23.