About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 54
|

|

National Director of Public Prosecutions v Ketso and Another (237/2023) [2024] ZAFSHC 54 (22 February 2024)

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,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 237/2023
Reportable:

YES/ NO
Of Interest to other
Judges: YES/ NO
Circulate to
Magistrates:       YES/ NO
In
the matter between:
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
Applicant
and
KETSO
BABA KETSO
1
st
Respondent
MARU-
A– PULA GROUP (PTY) LTD
2
nd
Respondent
HEARD
ON:
16 NOVEMBER 2023
CORAM:
NAIDOO,
J
DELIVERED
ON:
22
FEBRUARY
2024
[1]
This matter started out as an urgent
ex parte
application
brought before this court for a preservation of property order (the
preservation order) in terms of section 38(1) of
the Prevention of
Organised Crime Act 121 of 1998 (POCA). The applicant (the NDPP)
sought to freeze an amount of Three Million
Eight Hundred and Twenty
Thousand Rand (R3 820 000.00), together with interest thereon
(the property), held at the First National
Bank (FNB), under account
number 6[…]. The order was granted on 20 January 2023. Before
me is the application for a forfeiture
order, which the NDPP asserts
is in terms of section 53 of POCA, and which I will deal with later.
The NDPP was represented
by Adv (Ms) S Khumalo, while the first
and second respondents were represented by Adv MS Mazibuko
[2]    The
first respondent, his wife, Joyce Mamonono Ketso and the second
respondent are interested parties in respect
of the property. The
preservation order was served on the first respondent in his personal
capacity, as well as his capacity as
director of second respondent.
His wife could not be found at the addresses at which the NDPP
attempted service. The applicant
alleges that service did take place
by affixing at an address, on 22 February 2023. That return of
service does not appear to have
been filed. The respondents, however,
do not take issue with the service on Mrs Ketso. It is common cause
that the first respondent
and his wife are directors of the second
respondent. The first respondent is also a shareholder of the second
respondent. The latter
information was furnished by the first
respondent in his affidavit filed in terms of section 39(5) of POCA.
I mention that the
first respondent is the only respondent who
opposed the grant of the forfeiture order.
[3]
This matter has its genesis in the Kingdom of Lesotho where certain
government tenders were awarded to various
entities for the
rehabilitation of certain flood damaged roads. Allegations of fraud
perpetrated by certain government officials
and private entities,
where tenders were awarded without following proper procurement
procedures and where monies were paid when
such was not due, led to
investigations into such allegations. It was found that as a result
of such unlawful activities, the government
of Lesotho was defrauded
of an amount of Thirty Seven Million Six Hundred and Twenty One
Thousand Eight Hundred and Thirty Maloti
(M37 621 830).
Maloti is the currency of Lesotho and is equivalent in value to the
South African Rand.
[4]    One
of the main beneficiaries of the unlawful tender was an entity known
as Maru-A- Pula Mining Construction
(Pty) Ltd) (Maru-A-Pula Mining).
Investigations revealed that the Principal Secretary in the Ministry
of Local Government and Chieftainship
(MoLGC), Nonkululeko Zaly
(Zaly) unlawfully and irregularly engaged a company called Kypros
Engineering (Pty) Ltd (Kypros) to oversee
the road rehabilitation
work. Kypros engaged Maru-A Pula Mining to do the work. It was found
that Kypros and Maru-A-Pula Mining
were wholly owned by Phoenix
Investments (Pty) (Ltd), which in turn, is wholly owned by the first
respondent. The Disaster Management
Authority (DMA) was tasked with
coordinating the various processes and procurement, as well as paying
contractors for services
rendered. Zaly by-passed the procurement
office (DMA) in engaging Kypros, as her department (MoLGC) was not
authorised to procure
services.
[5]
On 1 November 2022, Maru-A-Pula Mining received an amount of
M5 538 192 from the DMA. Prior to this the balance in
its
bank account was M43.55. On 14 December 2022 the investigating team
received information that an amount of M3 820 000
was being
transferred to a South African First National Bank account being held
by the Maru-A Pula Group. This was done on 15 December
2022.
Intensive investigations continued, the extent and details of which
were set out in the Founding Affidavit to the preservation

application. There were numerous findings by the investigators in
respect of the road rehabilitation project in Lesotho, which

catalysed the launching of the preservation application. A brief
summary follows hereafter.
[6]    After
numerous interviews and other investigations, it was found that in
November 2021, Zaly purchased a property
in Lesotho, in respect of
which she made various payments. On 2 December 2021 Kypros received
an amount of M7 086 240.00
from DMA in its bank account,
which at that stage had a balance of M124.00. On 10 December 2021
Kypros transferred an amount of
M250 000 into the Trust account
of an attorney in Lesotho, for the benefit of Zaly. The attorney
issued a receipt with the
reference “
Kypros Engineering
(Pty) Ltd House Purchase Payme”
(sic). The cashier who was
employed at the attorney’s office, and who issued the receipt,
confirmed this payment and that
it was made in respect of the
property purchased by Zaly.
[7]
Nkosiphendule Mradla (Mradla), a Senior Financial Investigator with
the Asset Forfeiture Unit in Bloemfontein,
is the investigating
officer for asset forfeiture purposes in this matter, which is being
investigated in Lesotho by their Directorate
on Corruption and
Economic Offences
(DCEO) and in South
Africa by the Directorate of Priority Crime Investigation (DPCI).
Mradla in his affidavit in support of the
preservation application,
indicated that the asset investigations in this matter emanated from
investigations by the Lesotho Law
Enforcement Agencies into extensive
government fraud and corruption, resulting in the loss of millions of
Maloti, some of which
have been laundered into South Africa.
[8]
Through his investigations, he obtained sworn statements that were
deposed to by various officials in the
Lesotho government, who
provided detailed information regarding tender and procurement
processes in Lesotho, and how these processes
were contravened by
government officials and private entities, who were identified in
these statements. To these sworn statements,
were attached documents
that supported the assertions and allegations in the statements. What
emerged is that the first respondent
is alleged to have paid bribes
to the Chief Executive Officer of the DMA, Makhotso Mahosi (Mahosi),
and through Kypros, paid the
amount of M250 000, as part-payment in
respect of the property purchased by Zaly.
[9]
Mahosi was interviewed on 12 December 2022 by senior officials who
were part of the investigating team. She
advised the investigating
team that Zaly had told her that she and the Principal Secretary –
Cabinet, Thabo Motoko (Motoko)
had offered tenders for the road
rehabilitation to their friends’ companies. They would receive
M1 000 000 for
awarding the tender. Mahosi’s role was
to request government funds to pay these companies and she too would
be compensated
in the amount of M1 000 000. Mahosi did request
such funds in about March/April 2022, for which the first respondent
paid
her M500 000, with the promise that the balance would be
paid later, after he received the next payment. She was afraid to
use
the money, and hid it in her home. She agreed to take the police to
her home and point out the money, which she did. The police
found the
money hidden in two separate bags, and seized the money. Confirmatory
statements by the officials concerned were attached
to Mradla’s
affidavit.
[10]  The further
allegation is that the work was either not done or not completed by
Marula-A-Pula Mining, this being based
on the evidence that the work
was not verified by the relevant Department or official and signed
off by them, signifying that the
service provider could be paid.
Therefore Maru-A-Pula Mining was not entitled to the payment it
received, which was paid irregularly.
According to the evidence of a
Director of Procurement in the Lesotho government, retrospective
authority can be obtained for payment
to be made where the services
have been rendered and the government has benefitted. Retrospective
authority cannot be used to validate
a flawed procurement process, as
is the case in the present matter. This is even more so, where the
services have not been rendered
or have not been completed, being the
applicant’s allegation in this matter.
[11]  As indicated,
the preservation order that was granted by this court on 20 January
2023 is in respect of the money (R3 820 000.00)
that was
transferred from Maru-A-Pula mining in Lesotho to the South African
bank account of the Maru-A-Pula Group. The first respondent
is a
director and 100% shareholder in the latter entity. Only the first
respondent filed a notice to oppose the application for
a forfeiture
order. He filed an affidavit in terms of section 39(5) of POCA, and
in paragraph 8 thereof he alleges that he deposes
to the affidavit on
his own behalf and that of the second respondent. In paragraph 11, he
refers to “our notice to oppose”,
after alleging that the
preservation order was served on him, the second respondent and his
wife Joyce, as co-director. As I indicated,
only the first respondent
filed a Notice to Oppose.
[12]   The
first respondent filed his Notice to Oppose, Affidavit in terms of
section 39(5) and Answering Affidavit out
of time. He tendered an
explanation in the two affidavits I referred to and sought
condonation for such late filing, without bringing
a substantive
application for condonation. His prayer for condonation was
rigorously opposed by the applicant, who pointed out
the deficiencies
in the first respondent’s explanation as well as the fact that
a substantive application for condonation
is not before the court.
However, at the start of the hearing of this matter before me, Ms
Khumalo advised that the applicant no
longer takes issue with the
late filing of the first respondent’s pleadings and that the
matter may proceed on the merits.
In the interests of justice, and
the expeditious finalisation of this matter, I grant condonation, to
the extent necessary, to
the first respondent for the late filing of
his pleadings that I mentioned earlier.
[13]  In his
affidavit in terms of section 39(5) of POCA, the first respondent
denies that the property is the proceeds of
unlawful activities or
that it arises out of the offence of money laundering, as alleged by
the applicant. He asserts that as the
money was transferred from the
bank account of Maru-A-Pula Mining in Lesotho to the bank account of
the second respondent in South
Africa, they made no attempt to
conceal or disguise the nature and origin of the property. He also
asserts that Maru-A-Pula Mining
received monies, of which the
property forms a part, from a department of the Lesotho government as
a result of construction work
it did for the Lesotho government. He
alleged that the funds were derived in the course of lawful business
activities, and denied
that Maru-A-Pula Mining derived such funds
through fraudulent or corrupt conduct. He further asserted that the
applicant has no
evidence that respondents committed offences in
Lesotho.
[14]  The first
respondent repeated these allegations and assertions in his Answering
Affidavit, asserting further that irregularities
in the procurement
process did not render the property proceeds of unlawful activities.
He denied that he paid Mahosi the M500
00.00 as a bribe for her to
process payments from the Lesotho government for work that was not
done, or that the payment of M250 000.00
by Kypros towards
Zaly’s property was a bribe. The first respondent further
indicated that Phoenix Investments only purchased
Kypros in November
2021, whereas the Kypros contract with the local government ended in
August 2021.When Maru-A-Pula was awarded
the contract, Phoenix
Investments was not a shareholder in Kypros. He attached a large
number of documents and photographs to his
Answering Affidavit,
without referring to them or explaining what they were or what their
significance is. I shall accordingly
take no notice of such
annexures.
[15]  The issues for
the court to decide are:
15.1   whether
the property constitutes proceeds of unlawful activities;
15.2   whether
the offence of money laundering has been committed
where the property was
not concealed or disguised;
15.3   whether
the funds, of which the property forms a part, were derived from
lawful business activities;
15.4   whether the
respondents not being criminally charged in South Africa has any
bearing on the forfeiture application.
[16]  It is perhaps
useful to mention the relevant provisions of POCA, which will inform
the outcome of this application:
The
following definitions in
section 1
are relevant:
proceeds
of unlawful activities'
means
any property or any service advantage, benefit or reward which was
derived, received or retained, directly or indirectly,
in the
Republic or elsewhere, at any time before or after the commencement
of this Act, in connection with or as a result of any
unlawful
activity carried on by any person, and includes any property
representing property so derived;
'property'
means
money or any other movable, immovable, corporeal or incorporeal thing
and includes any rights, privileges, claims and securities
and any
interest therein and all proceeds thereof;
The
relevant provisions of
section
4
read
thus:
Money
laundering
Any
person who knows or ought reasonably to have known that property is
or forms part of the proceeds of unlawful activities and-
(a)
……
.
(b)
performs
any other act in connection with such property, whether it is
performed
independently or in concert with any other person,
which
has or is likely to have the effect-
(i)
of concealing
or disguising the nature, source, location, disposition or
movement
of the said property or the ownership thereof or any interest
which
anyone may have in respect thereof; or
(ii)
of enabling or
assisting any person who has committed or commits an offence, whether
in the Republic or elsewhere-
(aa)
to avoid prosecution; or
(bb)   to
remove or diminish any property acquired directly, or indirectly, as
a
result
of the commission of an offence,
shall
be guilty of an offence.
With
regard to forfeiture orders, the following sections of POCA are
relevant.:
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.
Section
50
provides as follows
(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.
(
2)
…..
(3)
…..
(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)
The Registrar of the Court making a forfeiture order must
publish a notice
thereof
in the
Gazette
as soon as practicable after the
order is made.
(6)
A forfeiture order shall not take effect-
(a)
before the period allowed for an
application under section 54 or an
appeal
under section 55 has expired; or
(b)   before
such an application or appeal has been disposed of.
[17]
In this matter it is not in dispute that
17.1
a tender was awarded to Kypros for the road rehabilitation project in
Lesotho;
17.2
Kypros contracted with Maru-A-Pula Mining to do the work;
17.3
Kypros and Maru-A-Pula Mining both received large payments from the
DMA, Kypros in the amount of
M7 086 240.00
and Maru-A-Pula Mining in the amount of M5 538 192;
17.4
Kypros paid an amount of M250 000 as part payment of the
purchase price of a property that Zaly
purchased;
17.5
Mahosi received an amount of M500 000 which she alleges was paid
by the first respondent.
17.6
The tender awarded to Kypros was not in accordance with procurement
procedures in Lesotho and was unlawful.
[18]  The detailed
statements from the various Lesotho government officials and others
involved in this matter set out clearly
that the award of the tenders
for the road rehabilitation project was not in accordance with the
procurement procedures of the
Lesotho government. In fact, Zaly
deliberately by-passed the designated Procurement Office in awarding
contracts to service providers,
including Maru-A-Pula Mining.
There is further evidence that she in fact openly disclosed to the
former Procurement Manager,
Motolo Mandoro, in her department (the
MoLGC), that she was responsible
for appointing
the consultant who she tasked with engaging the contractors. Mandoro
advised her that her actions were irregular
and in contravention of
the Procurement Regulations. He suggested to her that the solution
would be to request retrospective approval
from the Ministry of
Finance.
[19]
Zaly, it seems, took this suggestion seriously and directed a request
for retrospective authority to the Ministry of
Finance. Likotsi
Leseli (Leseli), the Director of Procurement Policy and Advice
Division in the Ministry of Finance, set out in
great detail the
procurement process, which is governed by the Public Procurement
Regulations 2007, as amended. He also dealt with
the procedure
governing emergency procurements, which is briefly that the Prime
Minister must declare a state of emergency, which
must be published
in the Government Gazette, after which the Minister of the concerned
Ministry is required to address the emergency.
There is a specific
and detailed procedure to be followed thereafter, where the ministry
concerned writes a justification for the
emergency procurement and
seeks authority from the tender panel, after other preliminary steps
are followed. In the case of a procurement
where the procurement
rules and regulations were not followed, retrospective authority must
be requested. Such authority will only
be granted for payment to be
made where the government has benefitted from the services that have
been rendered. It will not be
granted to validate a flawed
procurement process. In this case Leseli found that the Ministry of
Public Works, which is mandated
to issue a certificate of compliance
and completion, was not involved at all in the work relevant to this
matter. Leseli asserts
that, as a result, the procurement in this
matter amounts to “misprocurement” malpractice and
unethical behaviour.
[20]
Mahosi who was the CEO of DMA, clearly had the power to refuse to
make payments where proper procurement procedures were
not followed.
In fact, she had done so previously.  Two such contractors
complained to the office of the Accountant General,
Malehlonolo
Likhapa Mahase (Mahase) that the DMA was delaying in making payment
to them. Mahase contacted the CEO of the DMA (Mahosi)
to enquire
about the delay in payment and was advised by the latter that payment
was not made as there were allegations that the
work was not
completed or was sub-standard. Mahosi in this matter was aware that
that Zaly and Motoko sourced the companies of
their friends to whom
tenders were awarded, and for which they were offered payment of
M1000 000 each. She was also told by Zaly
to request funds from the
government in order to pay these companies, in return for which, she
would herself receive M1000 000.
Mahase said in her statement that
Mahosi informed her that she (Mahosi) was in fact paid M500 000
by a person called Baba
Ketso (first respondent) for the services she
rendered in requesting government funds for payment to his company,
with the promise
of payment of the balance when she assists him in
obtaining another payment.
[21]
As a result of the officers of the DCEO interviewing Mahosi, she led
them to her home where the M500 000 was hidden.
There is
therefore no doubt that she received an amount of M500 000 from
the first respondent, as he himself has not denied
paying her the
money. He also did not deny that an amount of M250 000 was paid
as part payment towards the purchase price
of Zaly’s property.
What the first respondent denied is that he bribed either Zaly or
Mahosi. He has not dealt at all with
the uncontroverted evidence that
the money was found at Mahosi’s house, or with the evidence of
the Tebello Masamuel Ramakhale
(Ramakhale), an employee of the firm
of attorneys in Lesotho who were dealing with the sale of the
property that Zaly purchased.
Ramakhale’s evidence that the
attorneys had received a bank transfer from Kypros Engineering Pty
Ltd in the amount of M250 000
for Zaly’s credit in respect
of a “House purchase payment” is supported by the receipt
issued by the firm to
Kypros.
[22]
The first respondent gave no explanation with regard to why these
payments were made to Zaly and Mahosi. These were matters
peculiarly
within his knowledge, and while there is no onus on him to prove his
case, there is certainly an evidentiary burden
to rebut the
allegations of the applicant that he paid those amounts as bribes.
When his failure to place such evidence before
the court and to give
an explanation for such payments, is viewed against the surrounding
circumstances and all the evidence placed
before this court, the
inescapable inference is that those amounts were paid as bribes to
both Zaly and Mahosi. Corruption and
bribery are criminal offences in
Lesotho. Mahosi, the first respondent, Zaly, Kypros, and Maru-A-Pula
Mining, together with a host
of others, have already been charged
criminally in Lesotho with, inter alia, fraud, corruption, bribery
and money laundering.
[23]
I pause to note that Mahosi, and another person brought an urgent
interdict application in the Lesotho High Court in
Maseru, against
the DCEO, the Director of Public Prosecutions and the Attorney
General seeking,
inter alia
, to declare the seizure of the
M500 000 from her possession null and void and of no legal
force, and seeking return of the
money to her. The application was
brought on 10 January 2023, when a
rule nisi
was issued,
returnable on 14 February 2023. When the matter was heard before this
court 16 November 2023, I was informed that the
judgment in the
interdict application was still awaited. During the course of
preparing this judgment, I requested my registrar
to enquire of the
applicant’s legal representative whether the judgment in that
matter was handed down. Ms Khumalo then forwarded
a copy of the
judgment to me, via my registrar.
[24]
The matter appears to have been heard in April 2023 and judgment was
handed down in September 2023, some two months before
this
application came before me. The Lesotho High Court dismissed the
application, the nub of the judgment being that all the issues
raised
in the urgent application would best be reserved for hearing by the
court hearing the criminal trial, which would be in
a position to
hear evidence on the various issues, and be in a better position to
make a ruling. I then requested my registrar
to forward the judgment
to the respondents’ legal representative and enquire from both
legal representatives if they wished
to make any further submissions
as a result of the judgment coming to light. They both declined to do
so.
[25]
In its Founding Affidavit, the applicant sets out in paragraph,
29.24, Mahosi’s version, namely that Zaly told
her in March
2022 that Zaly and Motoko offered the companies of their friends the
tender for the rehabilitation project in return
for payment of
M1 000 000 each. The first respondent’s bald answer
to this in paragraph 31 of the Answering Affidavit
is
that “Mahosi
applied to court for these statements to be declared null and void
and this was granted”.
He attached no proof of such
application nor did he give any further details in respect thereof.
The only legal proceedings instituted
by Mahosi was the interdict
application I referred to earlier in this judgment, and I am inclined
to agree with the applicant’s
submission that the first
respondent is attempting to mislead the court in this regard.
[26]
In paragraph 29.25 of the Founding Affidavit, the applicant goes on
to allege that Zaly requested Mahosi to release government
funds to
pay those companies, in return for which she (Mahosi) will be paid M1
000 000. Notably, the first respondent does
not answer to this.
Other than a denial which I mentioned earlier, no further explanation
was forthcoming from the first defendant.
[27]
With regard to the transfer of money from Maru-A-Pula Mining in
Lesotho, to the second respondent’s bank account
in South
Africa, the first respondent argues that he did not in any way
conceal or disguise the origins and nature of the property.
The
applicant knew where the property originated and how, namely as a
result of a contract concluded with the Lesotho government,
in terms
of which they carried out the work contracted for. The applicant at
all times acknowledged the origins and nature of the
property. It
relies on the corrupt relationship between the respondents and the
government officials which led to the award of
the tenders and
ultimately the payments that were made to them.
[28]
The first respondent does not, in Answer, deal with or give any
explanation of the purpose for which the property was
transferred
into the bank account of the second respondent, to enable the
applicant to reply thereto. Rather belatedly, this was
raised in the
Heads of Argument filed on behalf of the respondents, where the
explanation tendered was that the money was intended
to provide
capital to the second respondent to enable it to finance some work it
anticipated receiving in South Africa. Notably
this is yet another of
many bald and bare allegations, totally unsubstantiated by any form
of documentary evidence to show the
need of the second respondent,
what type of work was anticipated, how much the second respondent
would actually need and when such
work was likely to commence. There
is in fact, nothing to show that such work was a certainty, as the
allegation is that the second
respondent “anticipated”
receiving “some work”. Such unsubstantiated statements in
the Heads of Argument
are hardly of any persuasive value.
[29]
The first respondent also deals in his Heads of Argument with the
applicant’s contention that he bribed Mahosi
to make payments
to Maru-A-Pula Mining under the tender. He asserts that in his
Answering Affidavit, he indicated that whatever
confession the
Lesotho authorities obtained from Mahosi was done in violation of her
rights. He further asserts that the
fact
that Mahosi
challenges the legality of the process by which the confession was
obtained must cast doubt on the allegation that
the fist respondent
bribed Mahosi.
[30]
I note, firstly, that no mention whatsoever is made in the Answering
Affidavit of any confession or that the obtaining
of such confession
was in violation of Mahosi’s rights. Secondly, the first
respondent has not placed a shred of evidence
before this court that
Mahosi has made any confession or that she has taken any steps at all
to challenge the validity thereof,
yet the first respondent refers to
such action on the part of Mahosi as a fact. These submissions are
clearly an afterthought designed
to raise as much dust as possible in
the hope that it will blind the court to the true facts, or to create
disputes which are non-existent.
The first respondent does not deal
meaningfully with the allegations raised by the applicant, which are
supported by sworn statements
and other documentary evidence.
[31]
The applicant has, by way of the sworn statements, shown that proper
tender and procurement procedures were
not followed, and that the
relevant government department (Public Works) and/or individuals, who
were mandated to verify completion
of the work did not do so, and if
such work was signed off as completed, such was done irregularly by
people not authorised to
do so. Bare denials of matters that fall
solely within the knowledge of the respondents (which I have
mentioned earlier), without
any further explanation or
substantiation, do not assist the respondents in any way. It also
does not assist the respondents to
state matters as if they are fact,
and not substantiate such statements.
[32]
The first respondent contends that neither he nor the second
respondent have been charged with the offence
of money laundering in
a South African court, and hence the applicant has failed to
establish that the property is the proceeds
of unlawful activities.
It is well established in our law that proceedings in terms of
Chapter 6 of POCA are directed at the property
and not the person,
and a forfeiture application in terms of Chapter 6 may be instituted
even if criminal charges have not been
preferred against the
wrongdoer.
In
National
Director of Public Prosecutions v Mohamed 2202(4) SA 843 (CC)
,
the Constitutional Court h
eld at
para [17]
“
Chapter
6 provides for forfeiture in circumstances where it is established,
on  a balance of probabilities, that property
has been used to
commit an offence, or constitutes the proceeds of unlawful
activities, even where no criminal proceedings in respect
of the
relevant crimes have been instituted…. Chapter 6 is therefore
focused, not on wrongdoers, but on property that has
been used
to commit an offence or which constitutes the proceeds of crime. The
guilt or wrongdoing of the owners or possessors
of property is,
therefore, not primarily relevant to the proceedings”
In
any event, section 50(4) of POCA makes it clear that the validity of
a forfeiture order is not affected by the outcome of criminal

proceedings or investigations with a view to instituting criminal
proceedings.
[33]
On a consideration of all the facts and evidence before me, I am
satisfied that on a balance of probabilities,
the property is the
proceeds of unlawful activities and was not derived from lawful
business activities as contended by the respondents.
It is also of no
moment that the respondents have not been criminally charged in South
Africa, having regard to the established
law on this aspect. That
being said, the property which is the proceeds of unlawful
activities, remains tainted and transfer of
the money to the South
African bank account of the second respondent constitutes money
laundering.
[34]
I say this because the circumstances under which the transfer of the
property took place, lead to the inference
that such transfer was
intended to avoid prosecution or to remove or diminish the property
which was acquired as a result of an
offence being committed. Maru-
A-Pula Mining received the money from DMA on 1 November 2022. Mahosi
was interviewed on 12 December
2022, during which interview, she
implicated the first respondent as the person who bribed her. It is
also the day that the M500 000
was seized from her home. On 15
December 2022 – three days later – the first respondent
transferred the money into
the bank account of the second respondent.
On a balance of probabilities, and taking into account all the other
evidence, it appears
likely that the first respondent realised that
Maru-A-Pula and possibly himself, would be likely to face criminal
charges. He transferred
the property in order to remove it from
Lesotho so that the authorities in that country would be prevented
from having access to
the property, and in that way to also avoid
prosecution of Maru-A- Pula Mining and himself. I agree with the
submission of the
applicant that the first respondent and Maru-A-Pula
Mining contravened section 4(b)(ii) of POCA.
[35]
For the sake of accuracy and completeness, I refer to the draft order
attached to the Notice of Motion, in which the
applicant claims
relief in terms of section 53 of POCA, which clearly deals with
judgment by default where there is no appearance
by any person
(against whose interest such an order is made) on the day that the
forfeiture application is made. I shall treat
the reference to
section 53 as a typographical error, as the relief foreshadowed in
the draft order is clearly intended to be sought
in terms of section
48(1), read with section 50(1), both of which I have set out earlier
in this judgment. The application was
opposed and there was
appearance for the respondents, hence section 53 does not apply.
[36]  In the
circumstances, the following orders are made:
36.1   An order
is granted in terms of the provisions of section 48(1) read with
section 50(1) of the Prevention of Organised
Crime Act 121 of 1998
(POCA), declaring forfeit to the state an amount of Three Million
Eight Hundred and Twenty Thousand Rand
(R3 820 000.00),
together with interest thereon, held at First National Bank (FNB)
under account number 6[…];
36.2   The
property is presently subject to a preservation of property order
granted by this Court under the above case
number on 20 January 2023;
36.3   The
preservation order made no provision for the appointment of a
curator
bonis
, and there is currently no need for this court to order the
appointment of a
curator bonis;
36.4
The Registrar of this court is directed to publish this order in the
Government Gazette, as soon as is practicable,
but not later than
Sixty (60)
calendar
days from the date this order is granted;
36.5
This order will take effect
Forty Five
(45)
days after this order has been
published in the Government Gazette. Immediately thereafter:
36.5.1
FNB is directed to transfer the property into the FNB Lesotho account
in
the name of the Directorate on Corruption and Economic Offences,
held under account number 6[…];
36.6
Payment to the above account shall be deemed to be payment
to the
State;
36.7
Any person whose interest in the property concerned is affected by
the forfeiture order, as specified in section
54(1) of POCA, may
within 45 days of the order being published in the Government
Gazette, a
pply for an
order excluding his or her interest in the property concerned from
the operation of the order, or varying the operation
of the order in
respect of such property.
36.8
In the event that the respondents wish to appeal this order, they are
directed to do so in terms of the Rules of Court.
In that event, and
should it be necessary, the parties may agree on the extension of the
date when this order will take effect.
If they are unable to reach
such agreement, either party may approach this court to consider
whether such extension should be granted.
36.9   FNB or
any person acting on its behalf shall as soon as possible, but not
later than 90 days of this order coming
into effect, file a report
with the applicant on the manner in which it:
36.9.1
completed  the administration of the property mentioned in this
order;
and
36.9.2
complied with the terms of the order.
NAIDOO. J
On
behalf of the applicant:
Adv
(Ms) S Khumalo
Instructed
by:
The
State Attorney
11
th
Floor, Fedsure Building
49
Charlotte Maxeke Street
Bloemfontein
(Ref:
619/202300064/P7M)
On
behalf of the respondents:
Adv
MS Mazibuko
Instructed
by:
Webbers
Attorneys
96
Charles Street
Bloemfontein
(Ref:
M Koller/KET8/0001)