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[2012] ZASCA 37
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Perumal and Others v National Director of Public Prosecutions (356/11) [2012] ZASCA 37 (29 March 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 356/11
No
Precedential Significance
In
the matter between:
Sagren
Perumal
….............................................................................
First
Appellant
Pushpaganthie
Perumal
…..........................................................
Second
Appellant
Rajambal
Pillay
….............................................................................
Third
Appellant
Sadhasivan
Pillay
….......................................................................
Fourth
Appellant
P3
Trucking CC
…..............................................................................
Fifth
Appellant
Sadhasivan
Pillay N.O.
….................................................................
Sixth
Appellant
Poogendran
Naidoo
…................................................................
Seventh
Appellant
Loganathan
Perumal
…..................................................................
Eighth
Appellant
Marilyn
Hariputh
…...........................................................................
Ninth
Appellant
and
The
National Director of Public Prosecutions
…................................
Respondent
Neutral
citation:
Sagren Perumal v NDPP
(356/11)
[2011] ZASCA 37
(29 March 2012)
Coram:
MPATI P,
HEHER, SNYDERS, and MAJIEDT JJA and PLASKET AJA
Heard:
15 March
2012
Delivered: 29 March
2012
Summary:
Forfeiture of assets – proceeds of unlawful activities –
the
Prevention of Organised Crime Act 121 of 1998
.
ORDER
On appeal from:
KwaZulu-Natal High Court, Durban (Moosa AJ sitting as court
of first instance):
1 The appeal is upheld
with costs.
2 The order of the court
below is set aside and replaced by the following:
‘
The application is
dismissed with costs.’
JUDGMENT
SNYDERS JA (MPATI P,
HEHER and MAJIEDT JJA and PLASKET AJA concurring):
[1] This matter is before
us with leave of the court below (Moosa AJ in the Kwa-Zulu-Natal High
Court, Durban). It originated as
an ex parte application by the
National Director of Public Prosecutions (NDPP), the respondent, in
terms of s 38 of the Prevention
of Organised Crime Act 121 of 1998
(POCA).
1
An order was obtained on
12 March 2004 (the preservation order) and the property attached in
terms of that order comprises 221 items
and some cash, as reflected
in an inventory compiled by the curator bonis appointed by the court
to take control of the property.
It includes immovable and movable
property owned by each of the appellants. The order was published in
the
Government
Gazette
on
2 April 2004 in terms of s 40 of POCA.
2
The respondent timeously
approached the court, on essentially the same founding papers, for an
order in terms of s 48 of POCA for
the forfeiture of the property
seized under the preservation order. The application was opposed by
all the appellants, argued on
20 October 2008 and on 3 March 2011 a
forfeiture order was granted of all the assets attached pursuant to
the preservation order.
The appellants appeal that order.
[2] All of the appellants
that are natural persons are related to each other. The first
appellant is married to the second appellant.
The third appellant is
the second appellant’s mother. The fourth appellant is the
second appellant’s brother and is
the sole member of the fifth
appellant and also the sixth appellant, in his capacity as the sole
member of the fifth appellant.
The first four appellants and their
families lived together in a house registered in the third
appellant’s name, to which
I will refer as the Kings Avenue
house. The seventh appellant is the nephew of the first appellant.
The eighth appellant is the
first appellant’s brother, and is
married to the ninth appellant.
[3] The third appellant
passed away before the hearing of the matter in the court below. Both
counsel confirmed that application
was made and granted by the court
below for the substitution of the third appellant with the first and
second appellants, the executors
in the estate of the third
appellant. That amendment is not reflected in any of the papers, but
I accept that it was duly made.
Purely for convenience, I will
continue to refer to the third appellant as such.
[4] The attached property
comprises the Kings Avenue house, registered in the name of the third
appellant, its contents, various
motor vehicles, the content of the
Boyz-2-Men night club and an investment policy. The case of the
respondent was that all of the
assets belong to the first appellant,
despite being registered in the names of his various family members,
and are either the proceeds
of unlawful activities, or an
instrumentality of crime.
[5] At the commencement
of the hearing in this court, counsel informed us that the respondent
has partially abandoned the judgment
of the court below to the extent
that the dispute between the parties in this court only involves the
Kings Avenue house, an Iveco
Eurotech truck (the truck) and a Henred
Freuhauf Platform truck trailer (the truck trailer), registered in
the name of the fifth
appellant, and a Volkswagen Caravelle
motorvehicle, registered in the name of the first appellant. The rest
of the property has
already been returned to the appellants. This
agreement between the parties limits the issues between them to the
extent that the
interests of the seventh to ninth respondents are no
longer affected. Counsel were also agreed that the effect of this
agreement
should not have any influence on the costs order to be
made.
[6] A successful
application for forfeiture of assets in terms of s 48(1) of POCA
requires a court to find, on a balance of probabilities,
that the
property concerned is either an instrumentality of an offence or the
proceeds of unlawful activities.
3
Section 48 is part of
chapter 6 of POCA which focuses, unlike chapter 5, on property and
not on the wrongdoer. There is therefore
no need for an existing
criminal conviction or pending criminal proceedings before the NDPP
avails himself of the provisions of
s 48 and there were none in this
case.
4
The court, faced with an
application in terms of s 48, simply asks the question whether the
property was an ‘instrumentality
of an offence’ or ‘the
proceeds of unlawful activities’.
5
[7] The abandonement of
part of the judgment of the court below and the confinement of the
case to the limited items of property
listed above, further
restricted the enquiry to whether the property was the proceeds of
the alleged unlawful drug dealing activities
of the first appellant
and it is no longer necessary to consider whether any property was an
instrumentality of an offence.
[8] The respondent’s
case is that the first appellant is one of the biggest, if not the
biggest, drug dealer in the greater
Durban area, that the assets
still under preservation belong to him, are the proceeds of his drug
dealing activities and have been
registered in the names of his
family members or their businesses in order to falsely create the
impression that they do not belong
to him. In order to establish
these allegations in application proceedings the respondent faced the
application of the well known
principles established in
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H-635C. The issue in this appeal therefore turns
on whether the trial court correctly concluded that the undisputed
allegations
in the founding affidavit, taken with the appellants’
allegations in the answering affidavits that are not clearly
untenable,
establish, on a balance of probability, that the first
appellant is indeed a drug dealer and that he acquired the identified
assets
from the proceeds of his drug dealing activities.
[9] It is clear from the
founding affidavits on behalf of the respondent that the first
appellant had been under investigation by
various members of the then
Directorate of Special Operations for drug-related offences since the
early 1980s.
6
Apart from ordinary
investigative procedures of questioning potential witnesses, the
provisions of the Interception and Monitoring
Prohibition Act 127 of
1992 were used to eavesdrop on the first appellant’s
conversations,
s 252A
of the
Criminal Procedure Act 51 of 1977
(CPA)
was used to attempt to entrap the first appellant and various
searches in terms of the CPA were conducted, all in an effort
to
gather evidence of his drug dealing activities. Several of the
investigators deposed to the affidavits that constitute the founding
papers against the appellants.
[10] Amod Khalil Hoosen
(Hoosen), a senior special investigator employed by the National
Prosecuting Authority and attached to the
DSO, adduces direct
evidence in the second sentence of the following extract from his
affidavit (the references to ‘Perumal’
in all the
quotations that follow are references to the first appellant):
‘
My investigations revealed that
Perumal had been involved in drug dealing activities for the past 16
years. On or about 1990 while
conducting drug investigations in the
Chatsworth area I arrested Perumal for possession of about 250
mandrax capsules.’
Hoosen does not mention
any of the relevant circumstances surrounding this arrest. The first
appellant discloses in his answering
affidavit that the arrest never
led to a prosecution. This fact casts serious doubt over the cogency
of Hoosen’s allegation.
[11] The rest of Hoosen’s
affidavit does not reveal any personal knowledge of the first
appellant’s alleged drug dealing
activities, but consists of
conclusions based on affidavits gathered in the course of the
investigations of the first appellant.
What follows are his main
conclusions:
‘
During the said investigations
Perumal was linked and implicated in numerous drug-dealing incidences
in which large amounts of drugs
were found and seized from various
persons whom Perumal used to store and sell drugs.
My investigations revealed that even
though Perumal used Runners to conduct his drug dealing activities he
was nevertheless directly
actively involved in negotiating and
conducting the drug dealing transactions himself.
My further investigations revealed
that the proceeds derived from the sale of drugs were ultimately paid
over to Perumal and that
he regularly handled large amounts of cash,
which was generated from the sale of drugs.’
[12] Clarence Francisco
Jones (Jones), an investigator in the same position as Hoosen,
described his conclusions as follows:
‘
My analysis of Perumal’s
drug dealing activities revealed that Perumal conducted his drug
dealing activities in a highly organized
and secretive manner. He
only employed and used close associates and family members that he
trusted to conduct his drug dealing
activities. He further sold and
supplied drugs mainly to established clientele whom he trusted. He
did not directly do the selling
of the drugs himself and he generally
did not agree to be directly approached to do drug dealing
transactions.’
[13] These conclusions
contain an obvious contradiction with those drawn by Hoosen in the
second extract quoted in para 11 above.
The true source of the
conclusions is the affidavits of interviewees. The interviewees’
affidavits reveal a missing link
between the available evidence that
they provide and the confidently stated factual conclusions reached
by the deponents to the
founding affidavits. What follows are a few
examples.
[14] Hoosen relied on an
affidavit by one Crystal Moodley. She described herself as the
mistress of one ‘Shangwen’,
who had since passed away.
The part of her affidavit that comes closest to implicating the first
appellant, reads as follows:
‘
There was one occasion I was
introduced to a person by the name of Bimbo. This Bimbo was the
person that was Shangwen’s friend
and I was present when a deal
was made for him to supply Ecstacy tablets. I knew Ecstacy as “E”.
The deal was done
outside the nightclub owned by Bimbo known as Boyz
to Men. The person that handed the “E” tablets to
Shangwen was Poogen
that worked for Bimbo. Shangwen was on numerous
occasions with Bimbo and he used to phone him often and it would seem
to me that
they were close. There were occasions that I was present
when he picked up monies form a drug dealer known as “Bill
Kandasamy”
or Merebank. Shangwen told me that he supplied
“buttons” to this person.’
[15] This evidence does
not support any of the conclusions drawn by Hoosen. Even if it is
accepted that the reference to ‘Bimbo’
in the extract is
a reference to the first appellant the allegations lack detail, fail
to disclose the basis of the knowledge professed
therein and, more
fundamentally, do not provide any connection relating to drug dealing
between the first appellant and any of
the persons implicated.
7
[16] Hoosen also relies
on an affidavit by Krishnan Kamalasen Pather (Pather). He is a family
member of the first appellant and
made an affidavit after he was
allegedly assaulted by, amongst other members of his family, the
first appellant because he disclosed
details of a stolen vehicle in
the possession of the first appellant to the police. The only
reference to a stolen vehicle in the
papers concerns a vehicle that
the first appellant bought that was later discovered to have been
previously stolen. The vehicle
was confiscated by the police, the
first appellant made an affidavit in this regard and that appears to
have been the end of the
matter. Pather’s objectivity and
reliability, by reason of his alleged conflict with the first
appellant, seem questionable.
The contents of his disclosures affirm
this.
‘
. . . . [the first appellant]
bought two houses in Pinetown, one which Steven and his mother-in-law
lived in, and the other, which
Colleen and he stayed in. I knew that
Colleen and [the first appellant] had registered the house on her
parents’ name. But
I was also aware that the parents could not
afford to buy the house as Rajambal’s husband did not earn
well.
. . . [the first appellant] received a
call after which he went to the outside dirt bin and took out a few
tablets, which I was
informed and knew to be mandrax (± 4
tablets). He then asked me to accompany him. We proceeded to the
Pavilion Shopping
Complex and met people outside Nando’s. There
were three gentlemen in the car and one of whom I knew by sight. . .
.
Thereafter using his cell phone [the
first appellant] called his nephew Gordon whom we had left behind at
the house in Pinetown.
Gordon arrived a few minutes later and Bimbo
told him to go into the gentlemen’s car and count the money.
After doing so
Gordon handed them a parcel, which I assumed could
only be drugs (mandrax). This was the only incident that I had sight
of and
interaction with Bimbo’s drug deals. . . .
About four years ago I just moved to
my current residence when Bimbo on one of his frequent visits asked
me to store drugs for him.
He offered to pay my rent and see to my
food cost in return for me agreeing to his request. I blankly refused
and it was the turning
point in our relationship.’
[17] Suspicion may be
aroused if all the allegations by Pather are accepted as fact.
However, it is clear that, in relation to the
immovable properties,
he resorted to sweeping statements without revealing the source of
his knowledge. In relation to the alleged
drug dealing his statements
are founded on speculation and presumption and do not warrant the
factual conclusions sought to be
drawn by Hoosen.
[18] Farouk Naroth
(Naroth) also made an affidavit on which Hoosen relied for his
factual conclusions against the first appellant.
The highpoint of his
allegations against the first appellant reads as follows:
‘
Bimbo’s nephew, Poogen
who also worked at the factory was also involved in the running of
the Club. On numerous occasions
I noticed Poogen selling ecstasy to
patrons at the club. This was done in the presence of Bimbo and with
his full knowledge. .
. .
Bimbo employed an Indian male known to
me as Tony to sell drugs inside the club . . . On numerous occasions
I observed customers
hand cash to Tony and he in return hands them
pills. At the end of the evening or morning Tony hands the cash to
either Bimbo or
Poogen. I noticed that Bimbo’s nephew Poogen
was in charge of most of the operations of the club. . . .
On several occasions during 2000 until
2003 I noticed a drug dealer known as Shongwan to visit the Club and
to be engaged in deep
conversations with Bimbo. On some of these
occasions whilst they spoke Bimbo would call Poogen to him and after
a short conversation
Shongwan would hand over a parcel to Poogen.
This parcel in some instances would be wrapped in newspaper and would
be tightly taped
in brown tape. Poogen would take control of the
parcel and after Shongwan had left I would see Bimbo with the parcel.
I had occasion
to find out the contents of such parcel when I
witnessed Bimbo opening this parcel and it revealed large bundles of
cash.’
[19] These allegations
are largely based on the presumption that it was prohibited
substances which were being discussed and sold.
It also presumes
knowledge of relationships whilst the facts that brought about that
knowledge are not disclosed. It should also
be borne in mind that
what remains of the respondent’s case after partially
abandoning the judgment of the court below, only
pertains to the
first appellant’s alleged drug dealing activities and not the
question whether the Boyz-2-Men nightclub was
an instrumentality of
an offence.
[20] The affidavit by
Naroth contradicts the affidavit by Pather in one vital respect.
Whilst Naroth purports to describe drug dealing
activities at the
nightclub, Pather states that he attended the club on a number of
occasions and did not see any drug related
activities in the club.
[21] The respondent also
relies on evidence seized by Hoosen from the seventh appellant’s
car. According to Hoosen numerous
pieces of paper were seized which
contain entries of names and amounts typical of keeping records of
the sale of drugs. Copies
of the seized pieces of paper are annexed
to his affidavit. The first difficulty with this evidence is that the
author of the documents
is unknown. Secondly, no connection between
the documents and the first appellant is alleged. There is a
reference to ‘Bimbo’
in some of the pieces of paper, for
example, ‘39/Bimbo Paid’. Insofar as this evidence is
relied on by the respondent
as evidence of the first appellant’s
involvement in drug dealing activities, it fails hopelessly. The
reference to ‘Bimbo’
is not alleged to be a reference to
the first appellant. It is furthermore highly unlikely that the first
appellant, an alleged
major drug dealer, would buy small amounts of
drugs from someone else.
[22] The affidavit of
Jones reveals the same inadequacies. He relies on and attaches
affidavits by interviewees who recount purchases
of mandrax tablets
from ‘Guy’, ‘Aka’ and ‘Anita’.
Not a single allegation is made that constitutes
evidence that any of
the said sellers conducted the sales for and on behalf of the first
appellant. Jones also makes the allegation
that conversations of the
first appellant were recorded during which he had discussions with
the second appellant about dealing
in 500 mandrax tablets. He
arrested the first and second appellants on the strength of these
recordings and charged them with conspiracy
to deal in mandrax.
However, quite startlingly, what the respondent does not disclose in
his founding papers is that by the time
Jones made the allegations he
knew, but failed to disclose, that the criminal prosecution that
followed upon this charge had been
withdrawn, because the recordings
were found to be ‘unsuitable for voice comparison analysis’.
[23] Despite having
investigated the first appellant for almost 20 years prior to
launching proceedings under POCA, despite intercepting
the first
appellant’s conversations, despite searches and seizures of
various premises and property, despite trying to entrap
the first
appellant, the respondent has only put up a smoke and mirrors case
which at best raises suspicion but does not sway the
balance of
probability in his favour.
[24] All of the
affidavits relied upon by the respondent fall short of age-old basic
principles that pertain to evidence on affidavit.
The following quote
from
Geanotes
v Geanotes
1947
(2) SA 512
(C) at 514 is relevant:
‘
It will be noticed that the
petitioner fails to give the source of her information, or the
grounds of her belief. In
Grant-Dalton
v. Win and Others
(1923,
W.L.D. 48)
, it was laid down that the Court will not admit statements
of belief and information in interlocutory matters unless the grounds
of such information and belief are set out and the Court is satisfied
that it is necessary to act upon such statements by reason
of the
grave urgency of the matter or for purpose of preventing an injury or
a threatened illegal invasion of rights. Mr. Justice
Krause at page
186 said,
inter alia
:
“The grounds of the deponent’s belief must be stated so
as to show that he has some reasonable and proper cause for
making
the statement, and has not sworn merely to raise an issue. The Court
of Appeal in England
In re
Young Manufacturing Co., Ltd
.
(1900, 2 Ch. 753)
, held that an affidavit of information and belief
not stating the sources of information or belief, is irregular, and
therefore
inadmissible as evidence, whether on an interlocutory or a
final application; and a party or solicitor attempting to use such an
affidavit will do so at his peril as to costs.”’
[25] The first appellant
denies being involved in any form of drug dealing. He also denies
that any of the property of the other
appellants is his. On behalf of
the respondent it was argued that the appellants have not answered
the case against them fully
or convincingly, but that their denials
are vague, sketchy and lacking in details. Accepting, without
deciding, that complaint
as valid, the case that the appellants had
to meet is a poor one and their response to it should be assessed in
that light. That
their response was not detailed does not supplement
the case for the respondent.
8
The denial of drug
dealing activities is consistent with the appellants’ average
middle class lifestyle which is apparent
from the papers. Nothing the
respondent has disclosed points to an affluent lifestyle lived off
the proceeds of drug dealing. An
intensive investigation over almost
two decades has not revealed evidence of the proceeds of drug
dealing, or a level of affluence
that could possibly sustain an
inference of unlawful activities.
[26] Aside from the first
appellant’s denial of the respondent’s case, the latter
faces an insurmountable hurdle when
the allegations by the third
appellant are considered. The immovable property the respondent seeks
to have declared forfeit is
registered in the name of the third
appellant. She put up an affidavit explaining that her late husband
had been economically active
for all of his adult life and that he
always managed to save some money. This much is apparent from the
fact that during his lifetime
they bought two immovable properties.
When they acquired the second of the two they lived in one and rented
out the other. This
continued to render an income to her after his
death. She also states that he kept his savings in cash in a safe at
home and upon
his death at the beginning of 1998 he left her with
approximately R500 000 in cash. She utilised R300 000 of this money
to acquire
the Kings Avenue property and with the rest she helped her
son, the fourth appellant, to acquire the truck and truck trailer
that
enabled him to earn a living from conducting a transport
business.
[27] Nothing in the
papers suggests that her version is clearly untenable. The respondent
suggests that it is improbable that her
late husband earned enough to
have enabled him to save an amount of approximately R500 000. No
facts are alleged that give rise
to such an improbability. On the
contrary, the lifestyle of all the appellants supports the third
appellant’s version. Their
lifestyle seems anything but
extravagant. They live together, their vehicles are second hand and
are relatively old. The Kings
Avenue property was purchased during
2002 for R800 000 and was funded by a cash deposit of R300 000 and a
mortgage bond in favour
of a financial institution in the amount of
R500 000 for which friends of the third appellant stood surety. That
the money was
not disclosed in the liquidation and distribution
account drawn by the executor of the deceased estate of the third
appellant’s
late husband gives rise to several plausible
inferences and not only the one that the respondent seeks to draw,
namely that the
money was supplied by the first appellant.
[28] The nature of the
property sought to be forfeited does not suggest the presence of an
affluent drug dealer trying to hide his
wealth, but of an average
middle class family going about their daily living. The mere fact
that the first appellant was present
and, to some extent,
instrumental in negotiating the acquisition of the property, does not
give rise to the conclusion that the
respondent seeks to draw. The
allegations on behalf of the respondent that the first appellant is
the owner of the Kings Avenue
property, the truck and the truck
trailer are based on hearsay evidence and assumption, the source or
basis of which is not disclosed,
and is no stronger than the
allegations of his alleged drug dealing activities. The allegations
that the first appellant disclosed
to the sellers of the Kings Avenue
property, the truck and the truck trailer that he was in actual fact
the purchaser are highly
improbable in the light of the respondent’s
case that the first appellant was weaving a highly secretive web of
deceit about
his ownership of the property. If that was so, it is
unlikely that he would disclose his deceit to all and sundry.
[29] The respondent has
failed to establish, on a balance of probabilities, that the first
appellant was a drug dealer and also
that the first appellant funded
the acquisition of the Kings Avenue house, the truck and truck
trailer. Consequently, the court
below came to an incorrect
conclusion on the application of the principles set out in
Plascon-Evans
.
[30] On behalf of the
respondent this court was requested, in the event of a conclusion
adverse to the respondent, to refer the
matter back to the high court
for the hearing of oral evidence. The conclusion to which I have come
serves to illustrate a finding
of the absence of a dispute of fact
that requires a referral for the hearing of oral evidence.
9
In addition, the
desirability of a referral at a stage in the proceedings when much
time has expired, witnesses have passed away
and the respondent has
not availed himself of the fact-finding proceedings available in
terms of
s 28
of the
National Prosecuting Authority Act 32 of 1998
,
is questionable.
[31] Unfortunately
something needs to be said about the judgment of the court below. It
consists of 37 pages. Except for two paragraphs
it summarises the
history of the case, the evidence and the contentions on behalf of
the parties. The last two paragraphs read:
‘
Summary
a) If this Court was to analyse and
dissect the evidence in detail of many hundreds of pages placed
before the above Honourable
Court, it will unnecessarily burden this
Judgment.
b) The Court has taken the approach
that it has recorded in this Judgment, a Summary of the main points
argued by the Applicant
and the main points argued by the Respondent.
c) In the end result, the Court comes
to the conclusion set out in the next paragraph.
Judgment by Court
After having carefully considered and
weighed up all the evidence in the Application papers and the
Respondents’ Opposing
Affidavits, and mindful of the fact that
the onus is on the Applicant on a balance of probabilities to
establish its case, this
Court comes to the conclusion that the
Applicant has discharged the onus, and that the Application for a
forfeiture order is well
founded and that the order is hereby
granted.’
[31] The judgment
contains no evaluation of the evidence, no application of legal
principles and no reasoning that sustains the
conclusion reached. As
such it falls short of principles repeatedly stated in this regard.
See
Botes
& another v Nedbank Ltd
1983
(3) SA 27
(A) at 27H-28A;
Road
Accident Fund v Marunga
2003
(5) SA 164
(SCA) paras 31-32;
Mphahlele
v First National Bank of SA Ltd
1999
(2) 667 (CC) para 12. Furthermore, the judgment was delivered two
years and five months after the matter was argued. A delay
of that
duration is simply unacceptable, particularly in the light of the
deficiencies that I have highlighted.
[32] The following order
is made:
1 The appeal is upheld
with costs.
2 The order of the court
below is set aside and replaced by the following:
‘
The application is
dismissed with costs.’
__________________________
S SNYDERS
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellants: K J Kemp SC
Instructed
by:
Shashi
Marajh & Company, Chatsworth,Durban
Webbers,
Bloemfontein
For the Respondent: V I
Gajoo SC (with him R Naidoo and A Naidoo)
Instructed by:
State
Attorney, KwaZulu – Natal, Durban
State
Attorney, Bloemfontein
1
Section
38
empowers the NDPP to approach a high court, ex parte, for an
order preserving property reasonably believed to be ‘an
instrumentality
of an offence’, ‘the proceeds of
unlawful activities’ or ‘associated with terrorist and
related activities’.
When such an order is obtained the
relevant high court authorises the seizure of the property and makes
‘ancillary orders
that the court considers appropriate for the
proper, fair and effective execution of the order’.
2
Section
40
provides for the expiry of a preservation order, 90 days after
publication in the
Government
Gazette
,
unless there is an application for a forfeiture order pending before
a high court in relation to the preserved property.
3
Section
50:
‘(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.’
4
Section
50(4)
‘The validity of an order under subsection (1) is not
affected by the outcome of criminal proceedings, or of an
investigation
with a view to institute such proceedings, in respect
of an offence with which the property concerned is in some way
associated.’
5
National
Director of Public Prosecutions v R O Cook 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) SACR 208
(SCA) paras 19-21.
6
The
DSO was created by
s 7
of the
National Prosecuting Authority Act 32
of 1998
, and special investigators could be appointed in terms of
s
19A
of the same Act. The DSO was disbanded by the
National
Prosecuting Authority Amendment Act 56 of 2008
and replaced by the
Directorate for Priority Crime Investigation by the
South African
Police Service Amendment Act 57 of 2008
.
7
There
is evidence in the papers that the first appellant was also known as
Bimbo, but whether all references to ‘Bimbo’
are
necessarily references to the first appellant, is by no means clear.
8
A
dministrator,
Transvaal & others v Theletsane & others
[1990] ZASCA 156
;
1991
(2) SA 192
(A) at 196C-E.
9
Rawlins
& another v Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993
(1) SA 537
(A) at 544G-I.