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[2021] ZAECPEHC 51
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National Director of Public Prosecutions v Gallant (917/2018) [2021] ZAECPEHC 51 (14 September 2021)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE NO.: 917/2018
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
and
J
P
GALLANT
RESPONDENT
JUDGMENT
GOVINDJEE
AJ
[1] The
Prevention of Organised Crime Act, 1998, (‘POCA’ / ‘the
Act’)
[1]
introduced additional measures to combat organised crime, money
laundering and criminal gang activities, and provides for the civil
forfeiture of criminal property that has been used to commit an
offence.
[2]
The primary objective of key parts of the Act is to remove the
incentive for crime, not to punish criminals.
[3]
[2] The
applicant seized a white Volkswagen Touran (registration number F […]
EC) on 24 January
2018 (‘the property’). The property is
presently held by an Enforcement Officer of the applicant in terms of
a Preservation
Order granted on 20 March 2018. The applicant alleges
that:
[4]
‘…
the property
constitutes an instrumentality of an offence to wit contravening
sections 3(1) and 3(2) of the Marine Living Resources
Act 18 of 1998
(the MLRS) by harvesting and / or being in possession of abalone
without the requisite permit...Contravention of
the MLRS falls within
items 25 and 33 of Schedule 1 of the…POCA.’
[3] The
applicant, in terms of sections 48 read with section 50 of POCA,
claims forfeiture of the property
to the state. The respondent argues
that the Preservation Order ought not to have been granted, being
based on factually incorrect
information, so that rescission is
appropriate.
[5]
The respondent also claims that the property in question is not an
‘instrumentality of the offence’ and that it would
be
disproportional to order forfeiture of his rights to the property.
Finally, the respondent suggests that he has a valid defence,
so that
the property should be excluded from the operation of the Forfeiture
Order, if that order is in fact granted.
The
facts
[4] The
applicant’s version of events is as follows:
·
Members
of the South African Police Service were performing patrol duties in
Walmer on 24 January 2018;
·
They
came across the property, being driven by the respondent, and decided
to search it with his consent and in his presence;
·
The
search of the property yielded two plastic bags containing abalone;
·
The
respondent and two accomplices were arrested for harvesting and / or
being in possession of abalone without the necessary permit
in terms
of sections 3(1) and 3(2) of the MRLS, and the property together with
the contraband was seized and taken to the Walmer
police station.
[5]
The respondent provided the following explanation of events:
·
He
and a friend (Prinsloo) were relaxing, having a braai and drinking
with other friends at Marine Drive, Port Elizabeth;
·
They
decided to pack up and leave when it became dark. Whitebooi, a person
unknown to the respondent, approached them and asked
which direction
they were heading. He requested a lift to Cleary Park, which was
en
route
to the
respondent’s destination;
·
Once
they had consented, Whitebooi indicated that he would return with a
bag containing his clothes. Prinsloo and the respondent
were already
seated in the vehicle when Whitebooi returned and sat in the
backseat. He placed a black bag between his feet at the
back seat
when entering the vehicle. The respondent was unsuspicious regarding
the contents of the bag;
·
The
police stopped the vehicle, to the respondent’s surprise. The
respondent obeyed all instructions and, when asked whether
there was
any illegal substance on board the vehicle, he indicated in the
negative. The police searched the boot and did not find
anything.
Whitebooi was sitting directly behind the passenger seat and was
asked to exit the vehicle and open the black bag on
the floor of the
rear seat. Two other waste bags were inside that plastic bag;
·
The
respondent experienced the smell of fish as the bags were opened. He
did not see what was inside the bags at that stage. He,
together with
Prinsloo and Whitebooi, were then arrested for possession of abalone.
It became clear at the Walmer police station
that the bags contained
34kg of abalone, valued at approximately R20 000,00. All three
were charged. The respondent and Prinsloo
were eventually discharged
once Whitebooi had pleaded guilty and was sentenced. It was during
that process that the respondent’s
vehicle was seized and
forfeited to the state. The respondent was subsequently able to
obtain rescission of the forfeiture order;
·
The
respondent denied that he or Prinsloo were accomplices of Whitebooi,
as alleged, or that he had ever been involved in harvesting
abalone,
or assisting others to harvest the substance.
[6]
The preservation and forfeiture of the property impacted
detrimentally on the respondent’s life. The vehicle was
normally
used to drive school children around in lift clubs as part
of providing daily and monthly income.
[6] The
applicant averred in reply that the bag had been placed on the rear
backseat of the vehicle,
and not on the floor. In addition, it is
suggested that ‘it is a known fact that abalone is wet and it
(is) having an odour…Gallant
must have known that what was
contained in the bags was abalone.’
[7]
The
applicable law
[7] Part 3 of POCA incorporates both
section 48 and section 50 of the Act, and is headed ‘Forfeiture
of Property’:
‘
48. Application for forfeiture
order.
(1) If a preservation of property
order is in force the National Director 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…
(4) Any person who entered an
appearance in terms of section 39(3) may appear at the application
under subsection (1) –
(a)
to oppose the making of
the order; or
(b)
to apply for an order –
(i)
excluding his or her
interest in that property from the operation of the order; or
(ii)
varying the operation
of the order in respect of that property,
and may adduce evidence at the
hearing of the application…
50. Making of forfeiture order.
(1) The High Court shall, subject to section 52, make an
order applied for under section 48(1) if the Court finds on a 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.’
[8] It
is convenient to commence the analysis which follows by focusing on
the question related to
the property as an ‘instrumentality of
an offence’.
[8]
Various issues have to be considered as part of this enquiry,
including the nature of the offence(s) relied upon by the applicant
and whether those offences are referred to in Schedule 1 of the
Act.
[9]
Is
the property an ‘instrumentality of an offence’?
[9] ‘Instrumentality
of an offence’ is defined to mean ‘any property which is
concerned in the commission or suspected commission of an offence at
any time before or after the commencement of this Act, whether
committed within the Republic or elsewhere.’
[10]
[10] In
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd and
other cases
,
[11]
the Supreme Court of Appeal gave detailed consideration to the
meaning of the phrase. It confirmed that forfeiture of the
instrumentalities
used in crime is not conviction-based, and may be
invoked even when there is no prosecution.
[12]
Chapter 6 forfeiture is permitted where it is established on a
balance of probabilities that property has been used to commit an
offence, even when no criminal proceedings are pending.
[13]
Importantly, and in contradistinction to chapter 5 forfeiture,
chapter 6 is ‘…focused, not on wrongdoers, but on
property that has been used to commit an offence…’
[14]
As such, the guilt or wrongdoing of the owners or possessors of
property is, therefore, not primarily relevant to the
proceedings.
[15]
[11] There is,
however, a defence at the second stage of the proceedings when
forfeiture is being sought by the
State. At that stage, an owner can
claim that he neither knew nor had reasonable grounds to suspect that
the property had been
an instrumentality in an offence (the so-called
‘innocent’ or ‘ignorant owner defence’).
[16]
While the two stages are ‘tightly intertwined’, this does
not mean that the property owner’s guilt or innocence
plays a
role in determining the meaning of ‘instrumentality of an
offence’.
[17]
This explains why a criminal conviction is not a condition precedent
to forfeiture, and why property may be forfeited even where
no charge
is pending:
[18]
‘…
in giving meaning to
‘instrumentality of an offence’ the focus is not on the
state of mind of the owner, but on the
role the property plays in the
commission of the crime. The phrase must be interpreted independently
of the guilt or innocence
of the property-owner…At this stage
the owner’s guilt or wrongdoing, knowledge or lack of it, are
not the focus. The
question is whether a functional relation between
property and crime has been established. Only at the second stage,
when (after
finding that the property was an instrumentality) the
Court considers whether certain interests should be excluded from
forfeiture,
does the owner’s state of mind come into play…’
[12] As indicated
above, the definition of ‘instrumentality of an offence’
embraces all property ‘which
is concerned in the commission or
suspected commission’ of an offence. But a wide, literal
interpretation cannot be countenanced
if it would result in
unintended consequences, bearing in mind that the remedial objectives
of chapter 6 operates as a punishment.
[19]
The reference in the Act’s preamble prohibiting the ‘use
(of) property for the commission of an offence…’
provides some limitation, denoting a relationship of direct
functionality between what is used and what is achieved.
[20]
The words ‘concerned in the commission of an offence’
must be interpreted so that the link between the crime committed
and
the property is reasonably direct, and the employment of the property
must be functional to the commission of the crime, so
that it can be
said to ‘…play a reasonably direct role in the
commission of the offence. In a real or substantial
sense the
property must facilitate or make possible the commission of the
offence…the property must be instrumental in,
and not merely
incidental to, the commission of the offence…’
[21]
[13] In
Prophet
v National Director of Public Prosecutions
,
[22]
the Supreme Court of Appeal had regard to the following factors in
measuring the strength and extent of the relationship between
the
property sought to be forfeited and the offence, and in assessing
whether the property was an instrumentality of an offence:
(a)
whether the use of the property in the offence was deliberate and
planned or merely incidental and fortuitous; (b) whether
the property
was important to the success of the illegal activity; (c) the period
for which the property was illegally used and
the spatial extent of
its use; (d) whether its illegal use was an isolated event or had
been repeated; and (e) whether the purpose
of acquiring, maintaining
or using the property was to carry out the offence. No one factor is
dispositive and a court must be
able to conclude, after considering
the totality of circumstances, that the property was a ‘substantial
and meaningful instrumentality’
in the commission of the
offence(s).
[23]
[14] In
S
v Bissessue
,
[24]
a magistrate declared a motor vehicle and fishing rods used in
fishing without a licence to be forfeited to the state. This was
in
terms of an ordinance that, in addition to a criminal penalty,
required the court to declare any article used ‘in, for
the
purpose of, or in connection with the commission of the offence’
forfeit. On appeal, the forfeiture of the fishing rods
was upheld,
but that of the vehicle was set aside. The Court held that ‘to
qualify for forfeiture the thing must play a part,
in a reasonably
direct sense, in those acts which constitute the
actual
commission
of the
offence in question’. The SCA in
Cook
Properties
, having
considered this decision, concluded that ‘the same…applies
to “instrumentality of an offence”’.
[25]
The determining question, in each case, 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.
[26]
[15] It is important
to note that the specific offences in question, as reflected in the
applicant’s own
papers, was ‘harvesting and / or being in
possession of abalone without the requisite permit.’
Whitebooi’s statement
in terms of
section 112(2)
of the
Criminal Procedure Act, 1977
[27]
similarly reflects his admission of unlawful possession of
abalone.
[28]
There is no clear, direct reference to linking the property to
conveyance. It might be added that the papers, including the
preservation
order, made repeated reference to section 3(1) and 3(2)
of the Marine Living Resources Act, 1998,
[29]
(‘MRLA’) instead of Regulation 36(1) of the Regulations
in terms of the MRLA.
[30]
This is unfortunate, to say the least. In
Cook
Properties
, the SCA
confirmed that the applicant cannot claim forfeiture of property ‘by
oblique invocation of statutory infractions,
still less by mistaken
allusion to them.’ While it might be over-technical to non-suit
the applicant on this basis alone,
the papers must set out clearly
the case that a person in the position of the respondent is called to
answer.
[31]
Property owners must, in other words, be told clearly what scheduled
offence or offences the NDPP relies on to establish forfeiture.
[32]
[16] It may be
assumed, for present purposes and in the applicant’s favour,
that the respondent was aware
of the case he was called upon to
answer, and that this related to the property being an
instrumentality of an offence related
to harvesting and / or
possession of abalone, even though the charges against him had been
withdrawn.
[33]
Has the applicant demonstrated on a balance of probabilities that the
property is an ‘instrumentality of an offence’
so that it
is entitled to forfeiture?
[17] For forfeiture
to be appropriate, the focus must be on the property and its
correlation to an applicable offence,
and the link between the crime
committed and the property must be reasonably direct. The property’s
role must, in other words,
be functional to the commission of the
crime in a real or substantial sense. A bit part role cannot suffice.
[18] On the evidence
that I have accepted, and including Whitebooi’s statement, the
property was only used
to transport the abalone on a single
journey.
[34]
The use of the property in the offences of harvesting and possession
of abalone was not deliberate or planned and, on a balance
of
probabilities, was merely incidental and fortuitous to the
offences.
[35]
While the property might appear, at first glance, to be important to
the success of the abalone remaining undetected, a deeper
enquiry
suggests that this is not necessarily the case. The abalone was
concealed in two bags that were themselves contained within
another
black bag and could have been transported on any public or private
motor vehicle away from Marine Drive. The property was
illegally used
for a short period of time over a distance of only a few
kilometres.
[36]
There is no evidence to suggest that this was not an isolated,
once-off occurrence. The property itself was not acquired, maintained
or used specifically for the purpose of carrying out offences related
to the harvesting, possession or conveyance of abalone. It
was
certainly not modified or adapted for the purpose of hiding or
possessing the substance.
[19] As such, the
property must be found to have played only a limited and incidental
role in the actual offences.
The property’s link is connected
only to Whitebooi’s possession of abalone in transit, which led
to his conviction.
The role of the property in respect of his crimes
is limited, or incidental, to say the least. It certainly cannot be
said to have
a close enough relationship to those particular offences
to amount to an ‘instrumentality’. A finding that it
constitutes
an ‘instrumentality of an offence’ is, in
this instance, therefore inapposite.
[20] In coming to
this conclusion, it must be noted that the facts at hand differ
markedly from those in
National
Director of Public Prosecutions v Engels
,
where the opposite conclusion was reached.
[37]
In that matter, a fishing vessel was launched with a number of people
on board. The following day, the owner and skipper of that
vessel
returned to the harbour, alighted and boarded a Toyota 4x5
Landcruiser. The boat was loaded onto a trailer attached to that
vehicle. When the vehicle was stopped by police a few minutes later,
nine people were found in the back seats. Diving equipment
and two
fishing baskets were found on board and a hidden compartment was
discovered in the boat itself. A substantial quantity
of abalone and
crayfish was found in this compartment. The respondent was the owner
of the vehicle, trailer and boat and was then
placed under arrest ‘on
the suspicion of being in possession and transportation of abalone in
contravention of the MLRA’.
[38]
The NDPP in that case had the benefit of an affidavit from an
employee of the owner, confirming his participation in the owner’s
activities, including the illegal harvesting of abalone, for a period
of a year. The matter was approached on the basis that the
owner was
a part of the illegal activities that had taken place on the boat out
at sea on the night in question, which continued
when the abalone was
hidden in the boat compartment and transported away from where the
boat had docked. Against that background,
Griesel J concluded
that:
[39]
‘…
the boat played a direct role in
the commission of the offences and, in a real or substantial sense,
facilitated or made possible
the commission of such offences.
Similarly, as far as the motor vehicle and trailer are concerned,
they were directly involved
in the illegal transportation of the
abalone.’
[21] Given the
totality of evidence available, this is also not an appropriate case
to consider the respondent’s
denial of involvement to be bare
or uncreditworthy, wholly fanciful or untenable, or subject to a
robust approach in favour of
the application for forfeiture.
[40]
The respondent’s version of events and supporting documentation
inevitably impacts on many of the questions applicable to
considering
the use of the property itself in relation to the offences. In coming
to this conclusion, I have considered the suggestion
in the replying
affidavit whether judicial notice should be taken of the smell of
34kg of abalone contained in bags, so that the
respondent’s
version must be rejected. I am unable to conclude that it is
appropriate in the circumstances to make such findings.
The
uncertainty regarding the state of the abalone at the time, wet or
dry, is one reason for this, and the applicant failed to
place any
information before the court to support such a finding. I have also
considered the interactions with counsel during argument
as to
whether the respondent should have enquired about the contents of the
bag before admitting Whitebooi to the vehicle, and
whether he should
be non-suited as a result of having failed to do so. I find the
respondent’s failure in this regard to
be unremarkable in the
context of a once-off lift being offered at night to a stranger who
proceeds to sit in the backseat with
a bag.
[22] A court
considering the possible forfeiture of property must be mindful of
the fact that unrestrained application
of chapter 6 of POCA may
violate constitutional rights, especially the protection against
arbitrary deprivation of property.
[41]
Courts have consistently noted that civil asset forfeiture
constitutes a serious incursion into well-entrenched civil
protections,
and can produce unjust and arbitrary consequences.
[42]
Courts must, therefore, be vigilant in ensuring that civil assets
forfeiture in terms of POCA does not amount to overreaching and
an
abuse.
[43]
On the approach adopted, it is unnecessary to consider the further
question whether forfeiture is proportional in this instance,
including matters such as whether forfeiture is likely to prevent
further wrongdoing, the likely effect of the forfeiture on the
respondent and his family, and whether the applicant has placed
sufficient facts before the Court to determine whether forfeiture
would be constitutionally proportionate in this instance.
Order
[23]
In the result:
1.
The
application for forfeiture of the respondent’s white Volkswagen
Touran (registration number F […] EC), presently
subject to a
Preservation Order granted on 20 March 2018, is dismissed with costs.
2.
The
Preservation Order granted on 20 March 2018 is hereby set aside.
3.
The
applicant is to return the respondent’s vehicle, referred to in
paragraph 1, to him forthwith.
_______________________
A
GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the Applicant
:
Mr W
Erasmus
Instructed
by
: State
Attorney
For
the Respondent
:
Adv JP
Vermeulen
Instructed
by :
Masiza Harker Inc
Heard
on
: 29 July
2021
Delivered
on
: 14
September 2021
[1]
Act 121 of 1998.
[2]
The Preamble to the Act provides: ‘And
Whereas no person should benefit from the fruits of unlawful
activities, nor is any
person entitled to use property for the
commission of an offence…legislation is necessary to provide
for a civil remedy
for the preservation and seizure, and forfeiture
of property which is derived from unlawful activities or is
concerned in the
commission or suspected commission of an offence.’
[3]
National Director of Public Prosecutions and Another v Mohamed NO
and Others (Mohamed (1))
[2002] ZACC 9
;
2002 (2) SACR 196
(CC);
2002 (4) SA 843
(CC).
[4]
Paras 6 and 7 of the founding affidavit, p 43 of
the index. Also see p 48 of the index: ‘Gallant and his two
accomplices
were arrested for harvesting and / or being in
possession of abalone without the necessary permit…’
[5]
The
ex parte
application for the Preservation Order, granted
on 20 March 2018, mistakenly made reference to ‘the boat’
as opposed
to the property. Reference was also made, erroneously, to
a certain ‘Wait’ in the papers. Incorrect reference was,
furthermore, made to 226 kilograms of abalone, with a street value
of R113 000,00, instead of 34 kilograms. A subsequent
forfeiture order granted on 12 July 2018 was rescinded, in terms of
s 53(4) of the Act, following a judgment by Mullins AJ on
28 May
2019. The respondent failed to apply for rescission of the
Preservation Order itself until 13 January 2020. That application
was refused by Rawjee AJ on 3 March 2020, and the possibility of
rescission need not be considered further. The parties then
agreed
that the application would be construed as a s 52 exclusion
application, with the applicant to file opposing papers by
27 March
2020.
[6]
For the sake of completeness, it may be added that
the
respondent alleges that ‘I was at no stage aware of the fact
that my passenger who had sought a lift had illegal stuff
in his
possession, to whit abalone without a permit. My possession was
innocent and there was never any reason for me to believe
on
consideration of all the relevant facts advanced, that the bag
containing two other bags inside, was having abalone in them.’
(at p 131 of the index). As indicated below, Whitebooi deposed to an
affidavit along similar lines: p 145 of the index.
[7]
At p 188 of the index.
[8]
A secondary enquiry, in the event that the
property is considered to be an instrumentality of an offence, is to
consider the issue
of proportionality. This is not a statutory
enquiry but an equitable requirement that has been developed by the
courts to curb
excesses of civil forfeiture, and amounts to a
constitutional imperative based on the need to avoid arbitrary
deprivation of
property and excessive punishment:
Mohunram
at paras 130; 141
et seq
.
[9]
See
National
Director of Public Prosecutions v Engels
2005 (3) SA 109
(C) at para 16.
[10]
S 1 of the Act.
[11]
National Director of Public Prosecutions v RO 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
(‘
Cook Properties’
)
2004 (2) SACR 208 (SCA).
[12]
At para 7. The Act provides that the validity of
a forfeiture order is not affected by the outcome of criminal
proceedings, or
of an investigation with a view to instituting such
proceedings, in respect of an offence with which the property
concerned is
in some way associated: s 50(4).
[13]
At para 10.
[14]
Mohamed 1 supra
at para 17.
The aspects of
the various judgments cited pertaining to property linked to
proceeds of crime
are irrelevant for present purposes. In
Prophet
v National Director of Public Prosecutions
2007 (6) SA 169
(CC) (‘
Prophet
CC’), the Constitutional Court
held that civil forfeiture rests on the ‘legal fiction that
the property and not the
owner has contravened the law’ (at
para 58). Reference to this ‘legal fiction’ also appears
in the judgment
of Moseneke DCJ (as he then was) in
Mohunram
and another v National Director of Public Prosecutions and others
[2007] ZACC 4
at fn 15.
[15]
Ibid
.
[16]
Mohamed 1 supra
at para 18 as cited in
Cook Properties
supra
at para 11;
Cook Properties
supra
at para
17.
[17]
Cook Properties
supra
at paras 19, 20.
[18]
Cook Properties supra
at
para 21. This Court is bound by the interpretation given by the SCA
in
Cook Properties
in respect of the interplay between section 50 and 52, and the
possibility of an application for exclusion of a person’s
interest in property from the operation of a forfeiture order,
seemingly even in circumstances where this amounts to the same
as
opposing the making of the order. The SCA did, however, note that
‘this section burdens the owner with an onus to prove
certain
facts on a balance of probabilities
before
the Court can make an exclusionary
order’
(own emphasis): at para 24. Importantly, the SCA also noted that
Cook Properties
proceeded
‘on a narrow reading of “instrumentality of an offence”.
As a result these cases do not require us
to give a determinative
reading of the second-stage provisions…we therefore express
no final views on the interpretation
of s 52.’: at paras 25,
26. Notably, s 48(4) provides for various options for a person
who entered an appearance
in terms of s 39(3): ‘a) to oppose
the making of the order;
or
b) to apply for an order – i) excluding his or her interest in
that property from the operation of the order…’
(own
emphasis). S 39(3) also uses ‘or’ in the same manner.
The ‘or’ seems to confirm that opposition
to a
forfeiture order is distinct from an application for exclusion,
which would be appropriate in circumstances where, for example,
property subject to forfeiture is co-owned, so that a completely
innocent party, such as a spouse married in community of property
to
a wrongdoer, applies for an order excluding her property from a
forfeiture order. For an illustration of the analytical effect
of
equating ordinary ‘opposition’ to an application for
exclusion, see
National Director of
Public Prosecutions v Mpahlwa
[2020]
ZAECMHC 18. Also see
Brooks and Another
v National Director of Public Prosecutions
[2017]
2 All SA 690
(SCA) at para 17, for an example of the second phase of
the enquiry being identified as relating to ‘exclusion’,
as opposed to ‘proportionality’. The facts in
Brooks
made an ‘exclusion’
application apposite, the second appellant being an ‘innocent’
spouse. The reference
in s 52
(a)
to an ‘application under section 48(3)’ appears to be
erroneous, and should in all likelihood refer to s 48(4)
(b)
.
[19]
See the examples cited in
Cook
Properties
supra
at para 12. The other reason for a
restrictive interpretation relates to the constitutional prohibition
of arbitrary deprivation
of property:
Cook
Properties
supra
at para 15.
[20]
Mohamed 1 supra
para
17 as cited in
Cook Properties
supra
at
para 14.
[21]
Cook Properties supra
at
para 31.
[22]
2006 (1) SA 38
(SCA) (‘
Prophet
SCA’) at para 27, as cited in
Prophet
(CC)
at para 22. The Constitutional Court upheld the findings of the
Supreme Court of Appeal in respect of the property in question
being
an ‘instrumentality of an offence’.
[23]
Prophet
(SCA) at
par 27, with reference to
United States
v Chandler
[1994] USCA4 2075
;
36 F 3d 358
(4
th
Cir, 1994).
[24]
[1980] (1) SA 228
(N), cited with approval in
S
v Mjezu and Another
1982 (2) PH H164
(C) and
Cook Properties supra
at para 32.
Cf S v Maswanganyi and
Another
1989 (2) SA 759
(O), where it
was held that a motor vehicle played a reasonably direct part in the
offence of possession for sale of dagga. In
that case the vehicle
had been used to acquire possession of the dagga for sale and was
subsequently involved in arrangements
for its disposal (at 764). The
full court in
Bissessue
held (at 230 C-E) that ‘On the facts of this case it cannot be
said that the motor car was used in this sense for fishing
as one
might, for instance, perhaps have concluded if its headlights had
been used to attract fish at night as part of the fishing
operation.
The motor car was in fact used ‘for the purpose of’ the
journey from the place of departure to the Chelmsford
Dam and the
fishing was a subsequent and unrelated act.’
[25]
Ibid
.
[26]
Cook Properties supra
at
para 32.
[27]
Act 51 of 1977.
[28]
At p 148 of the index. Whitebooi’s
statement, attached to the respondent’s affidavit, included
the following: ‘On
the day in question I was requested to
collect abalone in Marine Road. I was told that I would be paid
R500,00 for the delivery
of the abalone. On the same day I took a
taxi to Walmer and then walked to Marine Drive and collected a black
bag containing
two smaller bags of abalone. I then saw Jacobus
Gallant and Angus Prinsloo enjoying themselves at a braai area along
Marine Drive.
I enquired from them what direction are they driving…I
asked for a lift and they accepted. I sat at the back of the car
with the black bag containing the abalone.’
[29]
Act 18 of 1998.
[30]
GNR 1111 of 2 September 1998; p 14 of the index
read with p 81. The applicable regulation provides that ‘No
person shall
engage in fishing, collecting, disturbing, keeping,
controlling, storing, transporting or be in possession of any
abalone, except
on the authority of a permit.’ See
National
Director of Public Prosecutions v Engels
2005 (3) SA 109
(C) at paras 17
et seq
.
[31]
Paras 43, 44. The Court added that such a
technical approach was warranted on the basis of seriousness of
assets forfeiture.
[32]
Cook Properties supra
at para 45. The
applicant does note in the application that contravention of the
MLRA falls within ‘items 25 and 33 of Schedule
1 of the POCA’.
See
Engels supra
,
at para 24, for the view that abalone falls within the notion of
‘endangered, scarce and protected game or plants’
in
item 25 of Schedule 1.
[33]
Par 6 of the of the founding affidavit, p 43 of
the index. The applicant’s replying affidavit belatedly, and
in a single
line, introduced a new issue in relation to
transportation: p 187 of the index. To the extent that the
respondent (or Whitebooi)
may have been charged in a way to include
conveyance of abalone, the charge having been withdrawn that offence
falls away so
that there cannot be the suggestion of an
instrumentality of
that
offence: see A Kruger
Organised Crime
and Proceeds of Crime Law in South Africa
(2008) (LexisNexis, Durban) 116. Also see
National
Director of Public Prosecutions v Smith
[2010] ZAECGHC 60 at para 11, noting that the plea explanation of a
person charged in circumstances where the owner of the property
was
not charged ‘placed (a vehicle) beyond the reach of
instrumentality’. Also see, in the context of a
proportionality
analysis,
National
Director of Public Prosecutions v Gouws
2005 (2) SACR 193
(EC) at 197C-D.
[34]
On the applicable approach to evidence, see
Plascon Evans Paints Limited v Van
Riebeck Paints (Pty) Ltd
[1984] ZASCA
51.
Also see
National Director of
Public Prosecutions v Pusani
[2010]
ZAECGHC 67, for circumstances where a referral to oral evidence was
appropriate.
[35]
See
National
Director of Public Prosecutions v Absolon
[2017]
ZAECPEHC 58 at paras 16, 18.
[36]
See
National
Director of Public Prosecutions v Kulati
[2018] ZAECGHC 127 at para 19, confirmed on appeal.
[37]
2005 (3) SA 109
(C). The facts also differ in
significant respects from
National
Director of Public Prosecutions v Bezuidenhout
and Another
[2011] ZAECPEHC 10, at para 16.
[38]
Engels supra
at
para 5.
[39]
At para 40.
[40]
See
National
Director of Public Prosecutions v Maziyana and Others
[2015] ZAECGHC 122 at paras 8, 38;
Pusani
supra
at para 40 and
National
Director of Public Prosecutions v Mniki
[2011]
ZAECGHC 41. In the last-mentioned case, and unlike the present
circumstances, a factual inference could be drawn that the
respondent had been engaged in poaching activities: at paras 1, 2.
Cf National Director of Public
Prosecutions v Skapu
[2015] ZAECGHC 2
where it appears to have been common cause that a vehicle was an
instrumentality of an offence, also based on
its previous use and
history: at paras 4, 11 and 12.
[41]
Prophet
CC at
para 61, with reference to s 25(1) of the Constitution and
First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service and Another; First National Bank of SA
Ltd t/a
Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4)
SA 768
(CC) at para 100.
[42]
Mohunram
at para
120.
[43]
Ponnan JA in
Prophet
(SCA) at para 45. Also see
Gouws
supra
at 196I-197B.