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[2021] ZAECPEHC 59
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National Director of Public Prosecutions v Muller (2712/2021) [2021] ZAECPEHC 59 (30 November 2021)
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 LOCAL
DIVISION, PORT ELIZABETH)
CASE NO. 2712/2021
In the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
And
MARIAAN
MULLER
Respondent
JUDGMENT
GQAMANA J
[1]
The applicant, National Director of Public Prosecutions, seeks a
forfeiture of the
respondent’s motor vehicle namely, a white
chevrolet corsa bakkie with registration letters and numbers [....],
which was
seized on 30 August 2020 (“the property”). The
application is brought in terms of section 48 of the Prevention of
Organised
Crime Act 121 of 1998 (“POCA”). The applicant
has already obtained a preservation order in respect of the property.
The application is opposed by the respondent, Mariaan Muller, a
police by profession.
[2]
The underlying facts which gave rise to this application are as
follows. On 27 August
2020, the respondent accompanied by Constable
Daniels, visited one Zememkhun Anose (“Mr Anose”) at his
shop in Joe
Slovo informal settlement, Kariega. Both Daniels and the
respondent were in full police uniform. They instructed Mr Anose to
accompany
them to Kamesh police station under false pretense that
they investigating a robbery that apparently occurred previous
months.
Without any hesitation Mr Anose duly complied and was ferried
in a red VW Polo driven by Daniels with no registration plates.
Instead
of taking Mr Anose to Kamesh police station as they
indicated, they travelled with him along the R75 National Road
towards Kirkwood.
They drove with him to a remote and bushy area
where a tall black male with a firearm was awaiting for them. Mr
Anose’s hands
and legs were tied up with cable ties and
thereafter, he was assaulted. In the course of the assault, the
respondent and her accomplices
demanded from him a ransom amount of
R120 000 with threats to kill him. Later they drove back to Daniels’
residence with
him squashed in the boot of the said Polo. Daniels,
the respondent and Brekwa contacted his brother Mulatu and demanded
the sum
of R120 000, but the latter was only able to raise an amount
of R15 000. Concerned of his brother’s safety, Mulatu reported
the incident to the police at Kamesh police station. Mr Anose was
locked up at Daniel’s house overnight. The following morning,
he was again transported in the aforesaid polo to a bushy area and a
white corsa bakkie with tinted windows driven by the respondent
followed them. At the bushes he was taken out of the polo and loaded
into the back of this white corsa bakkie which was still driven
by
the respondent. The respondent drove around with him in the property
and was later taken back to a house where he was locked
up and left
with his hands tied. He, however succeeded to rescue himself and seek
refuge to a neighboring house.
[3]
On 30 August 2020, the respondent was pointed out to the police and
she was arrested
and charged for
inter alia
, kidnapping. The
criminal charges are still pending. On the same day of her arrest, a
white corsa bakkie with tinted windows was
also found in the
respondent’s premises and was seized by the police. This is the
property concerned herein.
[4]
The applicant thereafter instituted an
ex
parte
application in terms of section 38(1) of POCA and obtained a
preservation order for the property on 10 November 2020. The notice
envisaged in section 39 of the POCA was advertised in the Government
Gazette on 20 November 2020,
[1]
and the respondent was served personally with the preservation
application and the order on 1 December 2020.
[2]
[5]
Armed with the aforesaid preservation order, the applicant approached
this court for
forfeiture order. In opposition to the relief sought,
the respondent denied that the property was used in the commission of
the
offence concerned.
Mr Thyse
, respondent’s counsel
argued that the sole issue for determination is whether the property
was instrumental in the commission
of the offence concerned. His
submission premised on the respondent’s contention that the
applicant failed to prove on balance
of probabilities that the white
corsa bakkie referred to by Mr Anose was indeed the property.
[6]
In terms of section 50(1)(a) of POCA empowers this court to grant a
forfeiture order
if it finds on a balance of probabilities that the
property is instrumental in the commission of the offence referred to
in Schedule
1.
[3]
[7]
The applicant’s case hinges on the contention that the property
was instrumental
in the commission of the offence concerned, namely
kidnapping. As alluded in paragraph 5 above, the respondent denied
that the
applicant has made out a case on a balance of probabilities
that the property is liable for forfeiture. Her defence being that,
the property was not involved in the commission of the offence
concerned.
[8]
Section 1 of POCA defines “
instrumentality of an offence
”
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 POCA whether such offence was committed within the
Republic or elsewhere.
[9]
The Supreme Court of Appeal,
[4]
dealing with
inter
alia
,
the interpretation of s 50(1)(a) of POCA said:
“
[31]
… For now it is enough to say that the words ‘concerned
in the commission of an offence’ must, in
our view, be
interpreted so that the link between the crime committed and the
property is reasonably direct, and that the employment
of the
property must be functional to the commission of the crime. By this
we mean
that the property must 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.
As the term
‘instrumentality’ itself suggests (albeit that it is
defined to extend beyond its ordinary meaning), the
property must be
instrumental in, and not merely incidental to, the commission of the
offence. Otherwise there is no rational connection
between the
deprivation of property and the objective of the Act: …”
[My emphasis]
[10]
The onus is upon the applicant to prove on a balance of probabilities
that the property is liable
to forfeiture.
[5]
In so far as they may be dispute of facts, I will resolve those by
applying the
Plascon-Evans
rule.
[6]
[11]
The applicant’s contention is that the respondent was amongst
the persons that were involved
in the kidnapping of Mr Anose on 27
August 2020. Furthermore, the property was used in the commission of
this offence in that,
on Friday 28 August 2020, Mr Anose was
transported to the bushes again in a red polo with the property
following them. At bushes
he was taken out of the Polo and loaded
into the property. The property was driven around by the respondent
for an estimated distance
of 60 km. Thereafter he was transported in
the property back to a house, where he was locked up and left by the
respondent and
the other accomplices. He remained in this house until
he successfully managed to escape and seek refuge from a neighbouring
house.
This is the extent of the involvement of the property in the
commission of the offence concerned on the applicant’s version.
[12]
However, the respondent denies that, the property was used and/or
involved in the commission
of the offence.
[7]
In her affidavit she made the following allegations:
“
10
AD PARAGRAPH 17
10.1 While I
cannot dispute that Anose was kidnapped, I deny that I was involved
in this kidnapping. There is no evidence
connecting me to the crime.
10.2 There is no
evidence that my Corsa bakkie was used during the crime. I note that
as I have travelled around, I see numerous
white Corsa bakkies on the
road, in the Uitenhage / Dispatch area. The applicant has provided no
proof that it was my vehicle that
was used in this alleged crime.
10.3
I am advised that the order that the applicant seeks can only stand
if it can be proven that the vehicle was an instrumentality
of crime
or the proceeds of unlawful activity. I deny that the applicant has
provided any proof that it was my white Corsa bakkie
that was used in
the crime
.”
[13]
The applicant in reply to the above allegations responded as
follows
[8]
:
“
Ad
paragraph 10 or sub-paragraph 10.1 thereof
72
Save to state that it is admitted that Anose was indeed kidnapped,
the rest of the of this sub-paragraph
is denied.
73
Anose pointed out to the SAPS that the Respondent is the one who sat
next to Daniels it the Polo, drove
the property on
28 August 2020
and who assisted in his kidnapping, to the extent that she made the
ransom demand.
74
Khusal saw the Respondent at Anose’s shop on
27 August 2020
and pointed her out on
30 August 2020
. The Respondent does not
explain why these two witnesses point to her.
75
There is thus sufficient evidence connecting the Respondent and the
property to the offences, which she
has been charged with.
Ad sub-paragraph
10.2 thereof
76
It is denied that there is no evidence that the property was utilized
in the commission of the offence.
In amplification of the denial the
following factors are worth highlighting:
76.1 The
Respondent owns the property (which is common cause),
which is
fitted with tinted windows
and would like to have it back;
76.2 The
property is a white Corsa bakkie with the official registration
details of the property, which was inside and seized
from her garage
on
30 August 2020
, with no protestation from the Respondent;
76.3 The
Respondent does not whatsoever alleged that someone else, without the
Respondent’s consent or knowledge had
or drove the property at
all material times in this matter;
76.4 The
Respondent does not state that the numerous Corsa bakkie she
allegedly seen on the road are with tinted windows or
not; and
76.5
Khusal identified the Respondent as one of the police women who
kidnapped Anose from his shop
.
Ad sub-paragraph
10.3 thereof
77
It is admitted that the Applicant is required to prove that the
property (which she has done) was an
instrumentality of an offence
(as in casu).
78
I refer the Honourable Court in this regard to the evidence of Anose
and Prince on the direct, meaningful
and substation role the property
played in Anose’s kidnapping on the two day.
79
The rest of the content of this paragraph is denied as if
specifically traversed.
”
[14]
The applicant’s aforesaid allegations are supported by the
evidence of Warrant Officer
Prince
[9]
,
Constable Kagiso Montshojang
[10]
and Mr Ridgewume Khusal.
[11]
In addition, Mr Anose in his statement to the police
[12]
explained in detailed the involvement of the respondent and the
property in committing the offence concerned and corroborates the
applicant’s case as to the issue for adjudication in this
application. Given all this evidence, I am satisfied the respondent’s
denial of the involvement of the property in the commission of the
offence concerned is just a bare denial and it is far-fetched
and can
be rejected merely on the papers.
[15]
Consequently, I am also satisfied that there is a direct link between
the commission of the crime
and the property. The property played a
reasonably direct role in the commission of the offence. It
facilitated and made possible
for the offence to be committed.
Kidnapping by its very nature is a continuous offence. Although the
property was not involved
on the first day, on 27 August 2020, when
Mr Anose was taken from his shop to the bushes and back to the
Daniel’s house,
however, on the following day on 28 August
2020, it was directly involved as indicated above. Mr Anose was
kidnapped on 27 August
and only managed to free himself on 28 August
2020 when he was left locked up in the house.
[16]
Given all this, the applicant has proved on balance of probabilities
that the property was “an
instrumentality of an offence”
as envisaged in section 50(1)(a) of POCA. Accordingly the applicant
has made out a case for
the forfeiture of the property in terms of
Section 48(1) of POCA. The property played a reasonable direct role
in the commission
of the offence.
[17]
In the circumstances the following order will be issued:
17.1 In terms of
section 53(1) (a) of the Prevention of Organised Crime Act 121 of
1998 (POCA), the sum of a white Chevrolet
Corsa Bakkkie with
registration letters and numbers FSL 286 EC seized on 30 August 2020
and held by SAPS under Kamesh CAS 159/08/2020
(the property), be and
is hereby declared forfeit to the State.
17.2 The Kamesh SAP
13 clerk who was appointed in the Prevention Order dated 10 November
2020 as custodian of the property
be and is hereby directed to
continue to act as such for the purpose of this order.
17.3 Pending the
taking effect of this order the property shall remain under the
control of the Kamesh SAP 13 clerk.
17.4 The Applicant
serve a copy of this order on Mariaan Muller (Muller).
17.5 The Applicant
is directed to cause a copy of this order to be published in the
Government Gazette as soon as reasonably
possible after the grating
of this order.
17.6 The Kamesh SAP
13 clerk (with the assistance of the Applicant’s employees)
sells the property either by private
treaty alternatively public
auction and transfer the proceeds of such sale into the Criminal
Assets Recovery Account (with account
number [....] held at the
Reserve Bank), 20 days after service of this Order on Muller in the
event of her not bringing an application
to vary or rescind this
Order, such transfer to take place within 10 days of the Applicant
furnishing the Kamesh SAP 13 clerk with
a copy of this Order.
______________________________
N GQAMANA
JUDGE OF THE HIGH
COURT
APPEARANCES:
For the Applicant
:
Mr W Myburgh
Instructed
by
:
State Attorney
Port Elizabeth
For the Respondents
:
Mr
J C Thysse
Instructed by
:
G Malgas and Associates
C/O Boqwana Burns
Attorneys
Port Elizabeth
Date
heard
:
21 October 2021
Date
delivered
:
30 November 2021
[1]
Index
page 101.
[2]
Index
page 102.
[3]
See
section 50(1) reads:
“
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 instrumental of an offence
referred to in Schedule 1
.”
[4]
In
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd –
37
,
Gilespie
Street Durban Pty Ltd and
Seevnarayan
2004 (2) SACR 208 (SCA).
[5]
See
Section 50(1) of POCA.
[6]
Plascon-Evans
Paint Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3) SA 623 (A) at 634H–635C.
[7]
Index
p64 para 10.1 to 10.3 and p 123 paras 10 and 19.
[8]
Index
pp 96–97.
[9]
Index
p 104-105 paras 5-12.
[10]
Index
p 113-114.
[11]
Index
pp 109-113.
[12]
Index
pp