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[2023] ZAECMKHC 19
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National Director of Public Prosecutions v Karuga (324/2022) [2023] ZAECMKHC 19 (21 February 2023)
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
DIVISION, MAKHANDA)
Case
No: 324/2022
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
And
DENNIS
KABUTHA KARUGA
Respondent
JUDGMENT
BESHE
J:
[1]
This is an application for a
forfeiture order in respect of a white Nissan Micra motor
vehicle
with registration number J[...] 9[...] E[…] hereinafter
referred to as the property. On the 8 February 2022 a preservation
order was made in respect of her property on the basis that there
were reasonable grounds for believing that it constituted an
instrumentality of an offence, namely drug trafficking.
Section
48
of
the
Prevention
of Organised Crime
[1]
(the Act) 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.
(2)
The National Director shall give 14 days notice of an application
under
subsection (1) to every person who entered an appearance in
terms of section 39 (3).
(3)
A notice under subsection (2) shall be served in the manner in which
a
summons whereby civil proceedings in the High Court are commenced,
is served.
(4)
Any person who entered an appearance in terms of section 39 (3) may
appear
at the application under subsection (1)―
(a)
to oppose the making of the order, or
(b)
to apply for an order―
(i)
excluding his or her interest in that property from the operation
of
the order; or
(ii)
varying the operation of the order in respect of that property, and
may
adduce evidence at the hearing of the application.”
The
application is opposed. It is common cause that respondent’s
brother one
Christopher Karuga
was convicted of the crime that
led to the preservation order being issued in respect of the property
sought to be forfeited to
the state.
[2]
The basis of the opposition is
that the respondent played no part in the commission of
the crime.
The motor vehicle in question belongs to him, was only registered in
his brother’s name to avoid him getting traffic
violation
tickets because the property was used as Uber and Bolt taxi.
Respondent contends that he is the one who “tipped
off”
the police leading to his brother’s arrest in whose name the
property is registered.
[3]
Section 39 (3)
of the Act
in question provides for a procedure in terms of which a person who
has an interest in the property which is subject
of to a preservation
order may oppose the making of a forfeiture order or apply for an
order excluding his / her interest in the
property concerned, from
the operation of the forfeiture order. It would seem that the
respondent is approaching this court on
the basis of
Section 39
(3)
of the Act.
[4]
Regarding the exclusion of
interest in forfeited property,
Section 54 (8A)
provides for
instances in which a court may make an order of exclusion of a person
interest’s in the property in question.
They are:
“
(8A) If a court
finds on a balance of probabilities that the applicant had acquired
the interest concerned legally and
(a)
neither knew nor had reasonable grounds to suspect that the property
in
which the interest is held is an instrumentality of an offence
referred to in Schedule 1 or property associated with terrorist and
related activities; or
(b) where the offence
concerned had occurred before the commencement of this Act, the
applicant has since the commencement of this
Act, taken all
reasonable steps to prevent the use of the property concerned as an
instrumentality of an offence referred to in
Schedule 1 or property
associated with terrorist and related activities.”
[5]
Regarding the first requirement:
acquisition of the interest in the property concerned
legally, it was
submitted on behalf of the applicant that the respondent does not
have the
locus standi
to protect any interest in the property
against the forfeiture order. The reason advanced for this assertion
is that - he is not
the owner of the property. It is common cause
that the motor vehicle in question was previously owned by one
Madnabhachi
until about 23 January 2019, by the respondent
from 17 April 2019. The following year on 8 September 2020 the title
holder became
his brother
Christopher
who was convicted in
connection with drugs found in the same property. Respondent explains
that the motor vehicle is registered
under his Bolt and Uber
businesses. He employed his brother as a driver after purchasing the
motor vehicle for R347 661.04.
He provides proof of a payment to
a
Mr McWilliams
of R347 661.04 on 30 July 2020. He had,
however, been the title holder in respect of the property since 17
April 2019. According
to a vehicle valuation report, effective
December 2021, the price of a new Nissan Micra 1.2 is R143 900.00.
Trade in price
is ± R84 000.00. Retail price is ±
R96 000.00, depending on the condition of the motor vehicle.
This will
also have a bearing on the proportionality or otherwise of
the confiscation order, should it be found such is justified.
[6]
The explanation respondent
proffers for registering the motor vehicle in his brother’s
name is so that he could personally account for the ticket fines he
was incurring. It is noteworthy that in a confirmatory affidavit
deposed to by his brother on 16 November 2022 and only filed a day
before the hearing of this matter, he states
inter alia
: that
the motor vehicle was given to him by his brother in order for him to
be part of the e-hailing business and added him to
his e-hailing
profiles as a way of assisting him because he had not been working
for some time. He transferred the motor vehicle
to his name because
he was not maintaining the motor vehicle.
[7]
A lot of reliance is placed on
respondent’s assertion that he is the one who tipped
off the
police about his brother transporting drugs which led to his arrest.
[8]
There is however a lot that does
not add up in this regard. The property was seized in
Cradock.
Respondent draws attention to calls he made to a number in Cradock,
which is similar to the number given by the arresting
officer (
Etto
)
as his office number. However, the question is, if he learnt that his
brother was in Mpumalanga, why would he call or tip off
police in
Cradock? The timeline as to when he got to know that his brother was
in Mpumalanga to the time when he was arrested does
not seem to add
up. In addition, he has provided the court with records of his
telephone calls during the period in question. Why
is there no record
of calls received in the early hours of the 23 or 24 September 2021
from his brother as he suggests he called
him in the early hours of
the 23 or 24 of September and he established that he was in
Mpumalanga Province.
[9]
The fact that the property was
used as an instrumentality of an offence is not denied.
[10]
The main thrust of respondent’s case is that
he and not his brother in whose name the property is
registered owns
the motor vehicle. He was not aware that it was to be used as an
instrumentality of an offence. In other words,
he is an innocent
party and had no part in the crime. In my view, his case stumbles on
the first hurdle, that of being an innocent
owner. All respondent
needs to do is to satisfy the court on a balance of probabilities
that he is the owner of the property, not
his brother
Christopher
.
For the reasons stated earlier, I am not persuaded that he succeeded
in doing so – showing that he was an innocent owner
and
therefore has the
locus standi
to apply for the exclusion of
his interest in the property.
[11]
The objectives of the
Prevention of Organised
Crime Act
are clear. They are
inter alia
the civil
forfeiture of property that has been used to commit an offence.
[12]
It is trite that the Act (
POCA
)
is an important tool in achieving the goal of reducing organised
crime.
[2]
In
First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service and Another
[3]
the following was stated regarding deprivation of one of his property
through confiscation orders or the proportionality thereof:
“
[98] The second is
that, for the validity of such deprivation, there must be an
appropriate relationship between means and ends,
between the
sacrifice the individual is asked to make and the public purpose this
is intended to serve. It is one that is not limited
to an enquiry
into mere rationality, but is less strict than a full and exacting
proportionality examination. Moreover, the requirement
of such an
appropriate relationship between means and ends is viewed as
methodologically sound, respectful of the separation of
powers
between Judiciary and Legislature (in the case of the United Kingdom
between Judiciary and Executive) and suitably flexible
to cover all
situations. It matters not whether one labels such an approach an
‘extended rationality’ test or a ‘restricted
proportionality’ test. Nor does it matter that the relationship
between means and ends is labelled ‘a reasonably proportional’
consequence, or ‘roughly proportional’, or ‘appropriate
and adapted’ or whether the consequence is called
‘reasonable’
or ‘a fair balance between the public interest served and the
property interest affected’.”
In
the
Prophet
matter
supra
, at page 193 D-E, it
was stated that the scheme of
POCA
seeks to ensure that no
person convicted of an offence benefits from its fruits and to ensure
that property used as an instrumentality
of an offence is forfeited.
[13]
The drugs that were found concealed inside the
door panel of the property and inside the spare wheel thereof
is said
to have an estimated value of R26 670.00. I have already alluded
to the evidence showing that the motor vehicle could
not have been
R300 000.00 and alluded to its probable value. I do not think
that the forfeiture order in this regard is not
proportionate to the
purpose for which it is meant.
[14]
I have been urged to order that respondent pays
costs of the application including those that were reserved
previously. I propose not to make an order for costs.
Section 57
(5)
of the Act provide that:
“
57 Fulfilment
of forfeiture order
(5)
The expenses incurred in connection with the forfeiture and the sale,
including expenses of seizure, maintenance and custody of the
property pending its disposition, advertising and court costs shall
be defrayed out of moneys appropriated by Parliament for that
purpose.”
[15]
In the result, the following order will issue:
1. The following property
namely, a white Nissan Micra motor vehicle with registration number
J[...] 9[...] E[…], chassis
number M[...] and engine number
H[...] seized on 24 September 2022 under Cradock CAS 2[...] (the
property), be and is hereby forfeited
to the state in terms of
Section 50 (a) of the Prevention of Organise Crime Act 121 of 1998
(POCA).
2. Mr Lungelo Matiwane of
Michael James Umgalelo, the Auctioneer who was appointed in terms of
the Preservation Order, shall cause
the property to be sold and cash
to be deposited into the Criminal Asset Recovery Account (with
account number 8[...]held at the
Reserve Bank) within 20 days after
service of this order on Christopher Karuga.
3. The applicant is to
serve a copy of this order on Christopher Karuga.
4. No order as to costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant:
Mr. M
Wolmarans
Instructed
by:
STATE
ATTORNEYS
C/o N
N DULLABH & CO
5
Bertram Street
MAKHANDA
Ref:
Mr. Wolmarans
Tel.:
046 – 622 6611
For
the Respondent:
Adv:
J Barker
Instructed
by:
MFUNDO
NTSHWAXA ATTORNEYS
116
High Street (LRC Building)
MAKHANDA
Ref:
Mr. Ntshwaxa/KAR1
Tel.:
081 271 7367
Date
Heard:
16
February 2023
Date
Reserved:
16
February 2023
Date
Delivered:
21
February 2023
[1]
Act
121 of 1998.
[2]
Prophet
v NDPP
2007 (6) SA 169
CC at [59].
[3]
[2002] ZACC 5
;
2002
(4) SA 768
CC at [98].