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[2016] ZAECPEHC 69
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National Director of Public Prosecutions v Kalmar Industries SA (Pty) Ltd (456/2015) [2016] ZAECPEHC 69 (29 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no. 456/2015
Date
heard: 6/9/16
Date
delivered: 27/9/16
Not
reportable
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
KALMAR
INDUSTRIES SA (PTY) LTD
Respondent
JUDGMENT
PLASKET,
J
[1]
I dismissed an application brought by the applicant (the NDPP) for a
forfeiture order in terms of s 50(1) of the Prevention
of Organised
Crime Act 121 of 1998 (POCA) in respect of, inter alia, a piece of
equipment used to refurbish harbour gantries and
described as a Swift
001 purpose-built lifting platform valued at R2 506 000. The NDPP now
applies for leave to appeal.
[2]
The basis of the application was that the respondent (Kalmar
Industries) had stolen the lifting platform from a former
sub-contractor,
Q6 Management Projects Africa (Pty) Ltd (Q6), and had
stolen other property from Q6 and three of its employees.
[3]
Section 48(1) of POCA provides that the NDPP may apply to a High
Court for a forfeiture order in respect of property if a preservation
of property order is in force in respect of that property. Section
50(1) provides that the High Court may make a forfeiture order
if it
finds on a balance of probabilities that the property:
‘
(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.’
[4]
It was alleged in the founding papers that the lifting platform was
an instrumentality of the offence of theft and was the proceeds
of
unlawful activity. The second point was not argued in the
application, and was raised seriously for the first time in the
application
for leave to appeal.
[5]
I held, at paragraph 19 of my judgment:
‘
As
the lifting platform and the other property in issue in this matter
were the very things alleged to have been stolen, they cannot
have
been instrumentalities of the offence of theft. They were never used
to commit or facilitate the offence of theft.’
[6]
Accordingly, I found that the jurisdictional requirement for the
granting of a forfeiture order was absent.
[1]
As a result, I dismissed the application without having to decide on
the factual bases upon which the application was brought and
resisted. In other words, I made no decision on whether Kalmar stole
the lifting platform and the other items.
[7]
I shall consider first the issue that I was not called upon to deal
with in my judgment – whether the property concerned
is the
proceeds of unlawful activity. This term is defined in s 3 of POCA.
It 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’.
[8]
It is clear that the definition is extremely wide and goes beyond
what one would ordinarily understand by the word ‘proceeds’
– the profit or return derived from a transaction.
[2]
It is broadened by the requirements that the property concerned can
also have been ‘received’ or ‘retained’,
and
not only ‘derived’, ‘in connection with or as a
result of’ the unlawful activity concerned.
[3]
[9]
In my view, this definition may well be wide enough to include the
lifting platform and the other property – the stolen
items
themselves – as being the proceeds of the unlawful activity of
theft, strange as it may seem on the face of it: on
the assumption
that the NDPP is able to establish the theft and Kalmar’s
possession of the property, the lifting platform
and the other items,
once stolen, were retained by Kalmar ‘as a result of the
unlawful activity’ of stealing them.
[10]
I am thus of the opinion that there are reasonable prospects of
success on appeal. I am less convinced of the strength of the
argument that I erred in relation to the second issue – whether
stolen property can itself be an instrumentality of the offence
of
theft but, having concluded that leave should be granted in respect
of whether that property is the proceeds of unlawful activity,
I
believe leave to appeal should not be restricted.
[11]
I am of the view that the issues concerned are of sufficient
importance to warrant leave being granted to the Supreme Court
of
Appeal.
[12]
I make the following order.
(a)The
applicant is granted leave to appeal to the Supreme Court of Appeal.
(b)
The costs of this application shall be costs in the appeal.
______________________
C
Plasket
Judge
of the High Court
APPEARANCES
For
the applicant: H van der Linde SC instructed by the State Attorney,
Port Elizabeth
For
the respondent: CB Garvey instructed by MacLarens Attorneys,
Johannesburg and Rob Williams Attorneys, Port Elizabeth
[1]
Judgment,
para 20.
[2]
Collins
Concise Dictionary
(21
st
century edition).
[3]
National
Director of Public Prosecutions v Carolus & others
1999 (2) SACR 27
(C) at 39c;
National
Director of Public Prosecutions v Abrina 6822 Ltd & others
2011 (1) SACR 419
(KZP), paras 24-27.