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[2017] ZAECPEHC 58
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National Director of Public Prosecutions v Absolon (3373/2016) [2017] ZAECPEHC 58 (12 December 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION – PORT ELIZABEH
Case
No.: 3373/2016
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Applicant
And
FRANS
ABSOLON
Respondent
JUDGMENT
REVELAS
J
:
[1]
On
27 September 2016 a preservation order was granted in terms of
section 38 of the Prevention of Organised Crime Act, Act No. 121
of
1998 (“the POCA”), in respect of the respondent’s
motor vehicle, to wit, a Nissan Hard Body truck with registration
number [H...] ("the respondent’s vehicle" or “the
truck”).
[2]
In
the present application the applicant seeks the forfeiture of the
respondent’s vehicle in terms of sections 48, 49 and
50 of the
POCA. The respondent opposes the application and seeks the
return of his vehicle.
[3]
The
facts relevant to the present application are mostly common cause or
undisputed and are set out in two affidavits filed respectively
by
the respondent and Mr Frederik Bekker (“Bekker”), a sheep
farmer from Steynsburg. These are the following:
[4]
On
26 August 2016, and in the afternoon, the respondent and his friend
Mr Johann Fleurs (“Fleurs”), were travelling
in the
respondent’s vehicle between Cradock and Cookhouse. Whilst they
were travelling about 50 kilometers outside Cradock,
they came upon
the aftermath of an accident during which a large truck with its
cargo of 432 sheep had overturned. Approximately
380 sheep had
perished in the accident. The sheep belonged to Bekker. The
respondent and Fleurs stopped at the scene of the
accident and
alighted from the vehicle. Police, onlookers, traffic officers,
ambulance personnel, and members of the SPCA had also
arrived and
gathered on the scene. It was all rather chaotic and the respondent
and Fleurs were still present at the scene of the
accident when the
owner of the sheep arrived, accompanied by a veterinary surgeon.
According to the respondent, he and Fleurs remained
on the scene to
“assist”, presumably by removing the sheep from the road.
Many people were in fact removing dead sheep
for their own benefit.
Bekker, who was insured against this type of loss, was mostly
concerned with the live sheep of which there
were 43, which he
removed from the scene.
[5]
With
regard to the dead sheep Bekker was concerned that they would be
stolen. He stated that his broker advised him that the
sheep
belonged to his insurance company and that he was not entitled to
donate any of the sheep carcasses to anyone. Accordingly,
he did not
give permission to anyone to help themselves to the dead sheep. He
did not even consent to donating some of the sheep
carcasses to a
nearby vulture sanctuary who requested carcasses from him. He was
also advised that he would be endangering his
life if he attempted to
stop those who were removing sheep from the scene and so he did not.
[6]
After
spending almost three hours at the scene, the respondent and Fleurs
left, but not before helping themselves to nine dead sheep
which they
loaded onto the respondent's vehicle. According to the respondent he
had Bekker’s consent to do so. They shared
the sheep, and the
applicant placed his share in his freezer at home.
[7]
Several
days later, the applicant and Fleurs were arrested and charged. The
charge sheet did not form part of the papers but I was
in formed by
counsel that the charge leveled against them - possession of property
for which they had no explanation - was subsequently
withdrawn
pending (according to the applicant), "further investigation".
[8]
The
applicant pointed out that no certificate was issued to the
respondent in terms of sections 6 and 8 of the Stock Theft Act,
Act
57 of 1959, which would have indemnified the respondent from
prosecution.
The
Applicant’ Case
[9]
The
applicant,
in
limine
,
raised the point that the respondent’s affidavit ought to be
regarded as
pro
non scripto
,
since he did not state that the facts and allegations therein fall
within his own personal knowledge, or that they are true and
correct
as such they would constitute hearsay. Counsel for the
applicant did not pursue this objection, and wisely so, since
the
affidavit of the applicant’s own witness (Bekker) was lacking
in identical respects.
[10]
On
the basis that the respondent allowed the vehicle to be used to
remove the sheep, the applicant asserts that the respondent’s
vehicle was integral to the commission of the relevant offences and
consequently an instrumentality in the commission of a crime.
in the
light of the overall purpose of the POCA.
[11]
The
applicant stressed that the respondent in his opposition to the
forfeiture application, did not raise the question of a lack
of
proportionality and submitted that it could therefore not be
considered in the present application. I disagree. In matters such
as
the present, it is the court’s duty to consider the question of
proportionality, if necessary. The POCA makes serious
inroads into
the fundamental human rights of persons affected by it and therefore,
if the question of proportionality was ignored
simply because the
respondent did not raise it in his affidavit, an injustice might
occur. As it turned out, that is unfortunately
what had
occurred in this matter.
The
Respondent’s Case
[12]
The
respondent’s allegation that he had taken the sheep carcasses
with the consent of the owner of the sheep is in dispute.
It was
argued on his behalf that since the police were present on the scene,
it is highly unlikely that the respondent would have
taken the sheep
without permission, as the police would have prevented such action.
That assertion is not borne out by the other
facts that are
undisputed, namely that members of the public and even ambulance
personnel were removing sheep from the scene sheep.
The presence of
the police on the scene was clearly no deterrent and the police
seemed to have little or no control over the situation.
Bekker was
advised by his broker to take photographs of the sheep as proof to
support an insurance claim as the situation was too
dangerous to
interfere with persons removing sheep. It is also significant that
Fleurs did not file a corroborating affidavit to
support the
respondent’s version that he had permission to remove the
sheep. On the probabilities one has to conclude that
the respondent
did not have the consent of Bekker to remove the sheep.
[13]
It
was further submitted on the respondent’s behalf, that on the
admitted evidence or common cause facts, the sheep belonged
to
nobody. The argument was that the owner of the sheep accepted
the advice from his broker that he was no longer the owner
of the
sheep. Thereby Bekker divested himself of the ownership and
rights to his sheep, passing it on to the insurance company
in terms
of the contract between them. The respondent further submitted that
because there is no evidence of who the actual owner
of the sheep was
at the time the alleged offence was committed, the sheep basically
became
res
derelicta
or
res
nullius
.
This argument does not assist the respondent. At all material times
the sheep were insured and on the facts, were owned by either
Bekker
or his insurer. It hardly matters when the ownership of the sheep was
transferred
Discussion
[14]
Based
on the submissions made by both counsel, the finding that I was
required to make is whether or not the respondent’s
vehicle was
an instrumentality of the offence within the meaning of section 38 of
POCA, and if so, whether the forfeiture of his
vehicle satisfied the
proportionality test.
[15]
The
phrase 'instrumentality of an offence', is to be interpreted
constitutionally and restrictively, rather than liberally. (See:
The
National Director of Public Prosecutions Versus R O Cook Properties
(Pty) Ltd
2004 (2) SACR 208
SCA). The test for instrumentality was also dealt
with in a N
DPP
versus Mohammed
[2002] ZACC 9
;
2002 (4) SA 843
(CC) where the court stated that:
"The
determining question is whether there is a sufficiently close link
between the property and its criminal use, and whether
the property
has a close enough relationship to the actual commission of the
offence to render it an instrumentality"
[16]
In
a very literal sense the respondent's vehicle was perhaps an
instrumentality of the offence. It was however, a mere coincidence
that the respondent and Fleurs were in the respondent’s vehicle
at the time of the accident which presented them with the
opportunity
to take the sheep, an act which ultimately gave rise to the charges
leveled at the respondent. Accordingly, the respondent's
vehicle was,
restrictively and constitutionally interpreted, not instrumental, but
rather incidental to the offence in question.
[17]
In
addition, a forfeiture order would not pass the proportionality test
in this matter. The respondent is a subcontractor in the
building
industry. He depended on his truck to make a living. A
forfeiture order would severely penalize him and the preservation
order and consequent deprivation of his must have set him back
considerably from a financial point of view. The forfeiture of the
respondent’s vehicle also seems disproportionate to the value
of the vehicle and the impact of the offence in question. I
was
informed from the bar that the value of the respondent’s truck
was R90, 000.00 whereas the value of the nine dead (but
insured)
sheep, which were in effect road kill, was only R13, 000.00. Counsel
for the respondent also made the valid point that
the salvageable
value of the sheep was doubtful since it was questionable whether the
sheep were fit for later consumption because
of the traumatic manner
in which they came to their end. It is also difficult to imagine what
use Bekker or his insurer could have
had for the dead sheep.
[18]
During
argument, the lack of premeditation on the respondent’s part
was discussed. The respondent and Fleurs could not have
known when
they set off that afternoon in the respondent’s vehicle, that
they would come across several dead sheep on the
road outside
Cradock. This lack of premeditation is relevant to another question,
namely whether the purpose and objectives of
the POCA as stated in
its preamble would be served by forfeiture of the respondent’s
vehicle. The relevant portion of the
preamble to the POCA, explaining
its purpose reads:
“
To
introduce measures to combat
organized
crime, money laundering and criminal gang activities;
to
prohibit certain activities
relating to racketeering activities; to provide for the recovery of
the
proceeds
of unlawful activity
;
for the civil forfeiture of
criminal
property
that has been used to commit an offence, property that is the
proceeds
of unlawful activity
or .owned or controlled by, or on behalf of an entity involved in
terrorist
and related activities
;
(emphasis added)”
[19]
The
respondent’s unplanned offence was clearly not a species of
organized crime, which by its very nature requires some planning
and
premeditation connected with, or associated with organized criminal
activity of the kind the POCA seeks to combat. Neither
the
respondent, nor his vehicle, nor the offence committed by him, fall
under any of the categories listed in the preamble of the
POCA.
[20]
I
am mindful that the POCA has an expansive reach. However, the
applicant failed to demonstrate that any of the purposes envisaged
by
the POCA could be served by depriving the respondent from his
vehicle. In addition, the applicant was unable
to
establish that the vehicle was an instrumentality in the commission
of a rather negligible offence and the proportionality test
was not
satisfied. For all of the aforesaid reasons I conclude that a
forfeiture order would be arbitrary and a misdirection.
[21]
In
the circumstances, I make the following order:
1.
The
application is dismissed with costs.
2.
The
applicant is directed to forthwith return the respondent's vehicle
(Nissan Hard Body with registration number [H...]) to him.
_____________________
E
REVELAS
Judge
of the High Court
Appearances
:
For
the Applicant: Mr W Myburg instructed by State Attorneys, Port
Elizabeth
For
the respondent: Adv RD Crompton instructed by Nash Vandayar and
Associates, Port Elizabeth
Date
heard: 30 November 2017
Date
delivered: 12 December 2017