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[2023] ZAECMKHC 3
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National Director of Public Prosecutions v Booysen and Another (1060/2022) [2023] ZAECMKHC 3 (24 January 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 1060/2022
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant
And
ELTON
BOOYSEN
First Respondent
CRYSTAL
ADALENE BAARTMAN
Second Respondent
JUDGMENT
BESHE
J:
[1]
The
Prevention
of Organised Crime Act
[1]
is designed
inter
alia
,
for the civil forfeiture of property that has been used to commit an
offence.
Section
48
sets
out the manner in which a forfeiture order can be obtained. It
provides that:
“
48
Application of 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.”
This
section is to be read with
Section 50
which provides that:
“
50
Making of forfeiture order
(1)
The High Curt 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 Schedule1;
(b)
is the proceeds of unlawful activities; or
(c)
is property associated with terrorist and related activities.”
Section
52
provides for the exclusion of interests in the property that
is subject to forfeiture. More about
Section 52
later.
[2]
This is an application in terms
of the abovementioned provisions. It is opposed by the
respondents.
[3]
The following appears to be
common cause:
The
respondents who are life partners and part owners of the property –
a Volkswagen Polo GTI. The said property was seized
by the police on
the 20 February 2022. A preservation order in respect of the property
was issued on the 12 April 2022.
The
property was seized by
Constable Siviwe Buzani
who is attached
to the Cookhouse Police Station, after having been stopped whilst
travelling on the R61 road towards Tarkastad.
Both respondents were
occupants in the property, first respondent being the driver with
second respondent as his passenger.
[4]
It is alleged that upon
searching the boot of the property, in a backpack containing nappies,
(underneath the said nappies) in a blue plastic bag: 1005 mandrax
tablets, 450 grams of tik were found. The estimated value of
the
drugs is said to be R300 000.00.
[5]
This led to the property being
seized by the police as it was deemed to constitute an
instrumentality of crime.
[6]
First respondent deposed to the
opposing affidavit. Therein, he placed evidence to prove
that he
bought the property in January of 2022 for R80 000.00 and paid
for it cash. He goes on to show set out where the money
came from.
Namely by providing bank statements reflecting transaction made
between January and April 2022. A contribution towards
the purchase
price of R46 000.00 from the second respondent being proceeds
from a certain policy she owned. This is confirmed
by second
respondent. Belatedly, albeit not raised in respondents’ answer
/ opposition to this application, in their heads
of argument,
[2]
respondents submit that besides the say-so of the police officials
who stopped the property, there is no evidence that what was
found
inside the boot of the property was indeed drugs. No reasons are
advanced by the two officials why they concluded that the
tablets
found in the property were mandrax tablets and the other substance
was tik. There is no evidence that those were drugs.
[7]
Evidence by
Constable Buzani
who stopped the property, together with his colleagues, reveals that
they were on the lookout for the motor vehicle in question.
He had
received a tip-off that it was transporting drugs. Moreover, as
asserted by applicants’ legal representative, at no
stage did
the respondents in their opposition deny that the substances found in
their property were drugs. Despite the fact that
Section 39 (5)
(c)
requires that in opposing the making of a forfeiture order,
the person concerned state the basis of the defence upon which they
intend to rely for opposing a forfeiture or for applying for the
exclusion of their interests from the operation of the forfeiture
order. Respondents’ counsel attributed this failure on their
part on the fact that, being laymen, they were not legally
represented at the time they deposed to the opposing affidavits.
Relevant to this issue, at paragraph [31] of his affidavit, first
respondent states that he is innocent and that the state bears the
burden of proving his guilt. Further that applicant’s
papers do
not show,
inter alia
that he is involved in drug smuggling or
in selling or distributing illegal substances. Nothing is said about
the substances found
inside the boot of the property.
[8]
In light of what is stated
hereinabove, I have no difficulty in finding that at the preservation
order stage, there were reasonable grounds for believing that the
property was an instrumentality of an offence listed under
Schedule
1
of
Prevention of Organised Crime Act
.
[9]
As rightly pointed out by the
applicant, the respondents seem to be missing the point of
the
application. They seem to be misconstruing the nature of the
application. The forfeiture of the property is sought on the basis
that it is an instrumentality of crime
[3]
and not that the property was acquired by means of proceeds of
unlawful activities.
[4]
At best
for them, respondents assert that the applicant has not succeeded in
showing that
Section
38 (2)
is
applicable.
Section
38 (2)
concerns
the application at the preservation stage namely the requirement that
the court shall make a preservation order if there
are reasonable
grounds to believe
inter
alia
that the property is an instrumentality of crime.
[10]
Do the interests of the respondents deserve to be
excluded in terms of
Section 52
? This section provides for
instances where a court can make an order excluding certain interests
in the property from being affected
by the forfeiture order. Those
instances are;
inter alia
; in respect of proceeds of unlawful
activities; where the interest concerned was acquired legally. In the
case under consideration,
that is not the allegation, namely that the
property is proceeds or was acquired by means of unlawful activities
or is proceeds
thereof.
[11]
In relation to the instrumentality of a crime /
offence referred to in
Schedule 1
, as is alleged in this
matter, interests in the property can be excluded if the court finds,
on a balance of probabilities that
the applicant for such exclusion
did not know or have reasonable grounds for suspecting that the
property is an instrumentality
of an offence listed in
Schedule 1
and the interest was acquired legally. The grounds for exclusion of
the interest do not apply in
casu
. The allegation is that the
respondents were travelling together in the property, in which a
substantial amount of drugs were concealed
inside a nappy bag in the
boot of the property in question. The allegation is further that
first respondent upon being stopped
by
Buzani
tried to turn
the property around and drive to the direction from which he came.
After the drugs were discovered inside the backpack
and upon being
asked to whom the drugs belonged, first respondent looked at the
second respondent, who started crying.
[12]
In the circumstances, I am satisfied that the
applicant has succeeded in showing on a balance of probabilities
that
the property was used by the respondents as an instrumentality of an
offence referred to in
Schedule 1
to this Act.
[13]
Accordingly, there will be an order in terms of
the draft forfeiture order marked “A”.
N G BESHE
JUDGE
OF THE HIGH COURT
ANNEXURE
“A”
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
On
Tuesday, 24 January 2023
Before
the Honourable Ms Justice Beshe
Case
Number.: 1060/2022
In
the application of:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant
And
ELTON
BOOYSEN
First Respondent
CRYSTAL
ADALENE BAARTMAN
Second Respondent
In re
: A
grey Volkswagen Polo GTI motor vehicle with registration number J[…]
9[…], seized on 20 February 2022 under Cradock
C[…]
2[…] (the property)
Having
heard Mr. Barrow, Attorney for the Applicant and Mr. Pienaar, Counsel
for the Respondents, and having read the Notice of
Motion and other
documents filed of record:
IT
IS ORDERED THAT:
1.
The following property namely, A grey Volkswagen Polo GTI motor
vehicle with registration number J[…]
9[…], chassis
number A[…] and engine number B[…] seized on 20
February 2022 under Cradock C[…] 2[…]
(the property) be
and is hereby forfeited to the state in terms of section 53(1) (a) of
the Prevention of Organised Crime Act 121
of 1998 (POCA).
2.
Tirhani Mabunda (Mabunda), an auctioneer at Tirhani Auctioneers, who
was appointed in terms of the Preservation
Order and is within the
jurisdiction of the Honourable Court and who is in possession of the
property, shall cause the property
to be sold and cause the cash to
be deposited into the Criminal Assert Recovery Account (with account
number 8[…] held at
the Reserve Bank) within 20 days after
service of this Order on Booysen and Baartman.
3.
The Applicant to serve a copy of this Order on Elton Booysen
(Booysen) and Crystal Adalene Baartman (Baartman).
By
order of Court
State
Attorney Registrar
APPEARANCES
For
the Applicant :
Mr Barrow
Instructed
by
: STATE
ATTORNEYS
C/o WHITESIDES ATTORNEYS
53 African Street
MAKHANDA
Ref: Mr. G Barrow/C13198
Tel.:
046 – 622 7117
For
the Respondents :Adv: A J Pienaar
Instructed
by
: HEGGIE
& ASSOCIATES
Liberty
Building Suite 1
98 Meade Street
GEORGE
Ref:
David John Heggie
Tel.:
065 888 2032
Date
Heard
:
19 January 2023
Date
Reserved
:19 January
2023
Date
Delivered
:24 January
2023
[1]
Act
121 of 1998.
[2]
The
heads were filed in the morning on the date the matter was scheduled
for hearing.
[3]
Section
50 (1) (a).
[4]
As
provided for in Section 50 (1) (b).