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[2024] ZAECQBHC 30
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National Director of Public Prosecutions v Biru (1598/2022) [2024] ZAECQBHC 30 (23 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
CASE
NO: 1598/2022
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Applicant
And
DAWIT
BIRU Respondent
JUDGMENT
PITT
AJ
Introduction.
[1]
This
is an application in terms of section 48 read with section 53 of the
Prevention of Organised Crime Act No. 121 of 1998 (‘POCA’)
for the forfeiture of a motor vehicle which is the property of the
respondent, and which property is in the possession of the applicant.
Before applying for the forfeiture order, the applicant obtained a
preservation order in respect of the motor vehicle concerned
on 14
June 2022. The basis of the application for forfeiture is that the
property was an instrumentality of certain offences.
[2]
The
respondent opposed the application on the basis that the use of the
property was incidental and not instrumental in the commission
of the
offence.
The
facts of applicant’s case.
[3]
The
applicant alleges that Tommy Jacobs (Jacobs), an employee and truck
driver of USIFAST Logistics, a logistics transport company,
was
hijacked on 8 October 2021 whilst he was driving a truck belonging to
his employer. The truck contained car parts, tyres, paint,
and
various other goods. The alleged hijacking took place at around 21h00
at or near the robots at Neave Industrial Area in Gqeberha.
The
alleged hijackers forced Jacobs into the back of the truck and drove
off with him.
[4]
Near
Alexandria, some 100 km away, the truck came to a stop and Jacobs was
put into a Tata bakkie and transported to Motherwell,
Gqeberha, where
he was held hostage in a shack. On the following day, 9 October
2021, Jacobs was taken from the shack in
Motherwell and dropped near
the Motherwell police station.
[5]
In
the meantime, the South African Police Service (SAPS) was alerted to
be on the lookout for the truck, and in doing so observed
on CCTV
footage that the truck was being followed by a Toyota Quantum 2.4 D
panel van with registration numbers and letters F[...]
with engine
number D[...] and chassis number J[...] (‘the property’).
The value of the property was estimated at R
140 200.00
[6]
On
the same morning of Jacobs’ release, the property was observed
by the SAPS members at the Oakley farm stall, close to Alexandria.
The property was being driven by the respondent, who was accompanied
by one Mr Wali Mohammed.
[7]
The
property was searched, and vehicle parts were found, which were
suspected to be part of the hijacked cargo. The respondent said
the
vehicle parts did not belong to him, and that he was transporting
them for someone. He was subsequently arrested and detained
at
Alexandria police station with his companion, and they were charged
with possession of suspected stolen property.
[8]
A
representative of USIFAST was contacted by the SAPS members to
inspect the vehicle parts seized from the respondent, and it was
confirmed that they formed part of the cargo which was stolen when
Jacobs was hijacked on the previous day.
[9]
Mohammed
made a statement to the police that the suspected stolen goods were
loaded from the hijacked truck into the property, which
was parked on
a gravel road near Patterson. A photo identity parade was held on 2
October 2021, at which Jacobs identified the
respondent as one of the
persons who had held him hostage in the shack in Motherwell.
[10]
The
applicant noted that the respondent chose to utilise the property
repetitively, considering that Alexandria is 100 km from his
residence in Gqeberha.
The
respondent’s case.
[11]
The
respondent set out his defence in his answering affidavit. He alleges
that he was arrested on 9 October 2021 with Mr. Wali Mohammed
while
he was driving the property. He also confirms that he was stopped by
the police, his vehicle searched, and the suspected
stolen goods were
found inside the property.
[12]
The
respondent further alleges that he was asked by a Somalian gentleman
to go to Port Alfred to help with the transport of goods.
The name of
the man is not mentioned, nor how the respondent knew the man or how
the two of them met.
[13]
He
further alleges that while he and Mohammed were driving back in the
direction of Gqeberha, he was flagged down by two men who
were
standing along the road. He then stopped and they informed him that
their motor vehicle broke down and was already towed away.
The two
men then loaded the plastic rolls into the property, and they were
told to go back to Gqeberha with the plastic rolls,
which were
destined for delivery to a Somalian shop in Korsten, Gqeberha.
[14]
On
the way to Gqeberha, the respondent noticed that the fuel light of
the vehicle had come on
,
and he made a U-turn to refuel. He
then noticed a police vehicle which had followed him, he was pulled
over and was asked why he
had made a U-turn, to which he explained
that he was running low on fuel and turned to refuel.
[15]
The
police officials told the respondent that a truck was hijacked and
told him to open the back of the vehicle. The police officer
started
scratching among the rolls of plastic and found the goods that looked
like plugs.
[16]
The
respondent was taken to Alexandria Magistrate’s Court, where
the charges against him were withdrawn after numerous appearances.
The property was returned to the respondent, but a few months later
he was asked to return it to the applicant, which he did.
[17]
I
have been called upon to decide if the applicant is entitled to have
the property forfeited to the State as an instrumentality
of illegal
possession and transportation of stolen property and/or suspected
stolen goods in terms of POCA. I am also required
to determine if the
respondent falls within the meaning of an innocent owner for the
property to be excluded from the operation
of the forfeiture order,
and whether it would be disproportionate to do so in the
circumstances.
The
issues to be decided.
[18]
Section
48 (1) of the POCA provides that if a preservation of property order
is in force the National Director of Public Prosecutions
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.
The
law.
[19]
In
terms of 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; or
(b)
is
the proceeds of unlawful activities.”
[20]
In
National
Director of Public Prosecutions v Ngunge
[1]
,
the
learned judge succinctly put it in this manner:
“
The
purpose of POCA is to counteract organised crime and criminal gang
activities. It is the culmination of a protracted process
of law
reform aimed at attempting to ensure that criminals do not benefit
from their crimes. Chapter 6 thereof (comprising s 37
to s 62) is
focused on property that either has been used to commit an offence or
which constitutes the proceeds of crime, rather
than on the
wrongdoers themselves. It provides for forfeiture of the proceeds of
and instrumentalities used in crime, but is not
conviction-based and
may be invoked even where there is no prosecution. (See National
Director of Public Prosecutions and Another
v Mohamed NO and
Others
[2002]
ZACC 9
;
2002
(2) SACR 196
(CC)
(2002
(4) SA 843
[2002] ZACC 9
; ;
2002
(9) BCLR 970)
at
paras [14] – [17].)”
Discussion.
[21]
The
applicant alleged that the offence of illegal possession and
transportation of stolen and/or suspected stolen goods during the
hijacking is listed as item 18 in Schedule 1 of the POCA as an
offence and is the predicate crime which forms the jurisdictional
genesis of this application. The respondent does not dispute this. I
am also inclined to agree with the applicant that the offence
does
fall within Schedule 1 of the POCA.
[22]
It
is the respondent’s case, the way I understand it, that the
respondent falls within the meaning of an innocent owner for
the
property to be excluded from the operation of the forfeiture order.
It is therefore expected of the court to determine whether
the
respondent is an innocent owner of the property and whether to
exclude it for that reason.
[23]
Civil
forfeiture provides for the forfeiture to the State of the proceeds
obtained from and the instrumentalities used in the commission
of
crime.
[2]
It is not necessary to prove that any person was convicted.
[3]
In
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd,
[4]
it
was confirmed that in addition that forfeiture of the
instrumentalities used in crime is not conviction-based, such
forfeiture
may be invoked even where there is no prosecution.
Govindjee AJ, as he then was, reiterated this at para 10 of his
judgment in
NDPP
v Gallant
[5]
,
a
decision of this Division.
[24]
The
two- staged procedure is commenced by an application for a
preservation order, which is followed by an application for
forfeiture
to the State of the property used as instrumentality. It
is common cause between the parties that a forfeiture order is
already
in place as the first step in the process leading up to this
application for forfeiture.
Is
the property an ‘instrumentality of the offence’?
[25]
It
has to be determined whether the property was used as an
instrumentality of the offence. Section 1 of the POCA defines
‘
instrumentality of an offence
’ as ‘
any
property which is concerned in the commission or suspected commission
of an offence at any time before or after the commencement
of this
Act, whether committed within the Republic or elsewhere
.’
[26]
Forfeiture
in terms of chapter 6 is permitted where it is established that
property has been used to commit an offence, even when
no criminal
proceedings are pending.
[6]
“
Importantly,
and in contradistinction to chapter 5 forfeiture, chapter 6 is
‘…focused, not on wrongdoers, but on property
that has
been used to commit an offence
…’
[7]
[27]
In
Prophet
v NDPP CC,
[8]
it
was held by the Constitutional Court that civil forfeiture rests on
the legal fiction that the property and not the owner has
contravened
the law. As such, the guilt or wrongdoing of the owners or possessors
of property is not primarily relevant to the
proceedings.
[9]
[28]
When
forfeiture is sought by the State, a respondent may raise a defence
that s/he neither knew nor had reasonable grounds to suspect
that the
property had been an instrumentality in an offence.
[10]
This is the so-called ‘innocent’ or ‘
ignorant
owner defence
’.
[11]
In
Cook
Properties
it
was held that while the two-stages are tightly intertwined, this does
not mean that the property owner’s guilt or innocence
plays a
role in determining the meaning of ‘
instrumentality
of an offence
.’
[12]
This confirms that a criminal conviction is not a condition precedent
to forfeiture, and why property may be forfeited even where
no charge
is pending.
[13]
It was further
held in
Cook
Properties
[14]
that
‘
in
giving meaning to instrumentality of an offence’ the focus is
not on the state of mind of the owner, but on the role the
property
plays in the commission of crime. The phrase must be interpreted
independently of the guilt or innocence of the property-owner…
The question is whether a functional relation between property and
crime has been established. Only at the second stage, when (after
finding that the property was an instrumentality) the Court considers
whether certain interests should be excluded from forfeiture,
does
the owner’s state of mind come into play
…’
[29]
A
wide literal interpretation of the meaning of ‘i
nstrumentality
of an offence’
cannot
be countenanced if it would result in unintended consequences,
keeping in mind that the remedial objectives of chapter 6
operate as
a punishment.
[15]
The
reference in the preamble of the Act prohibiting the use of property
for the commission of an offence provides some limitation,
denoting a
relationship of direct functionality between what is used and what is
achieved.
[16]
[30]
The
words ‘concerned in the commission of an offence must be
interpreted so that the link between the crime committed and
the
property is reasonably direct, and the employment of the property
must be functional to the commission of the crime, so that
it can be
said to 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 the property must be
instrumental in, and not merely incidental
to, the commission of the
offence.
[17]
[31]
The
following factors were considered by the Supreme Court of Appeal at
para 27 in
Prophet v National Director of Public Prosecutions SCA
to measure the strength and extent of the relationship between
the property sought to be forfeited and the offence: (a) whether the
use of the property in the offence was deliberate and planned or
merely incidental and fortuitous; (b) whether the property was
important to the success of the illegal activity; (c) the period for
which the property was illegally used and the spatial extent
of its
use; (d) whether the purpose of acquiring, maintaining or using the
property was to carry out the offence. No one factor
is dispositive,
and a court must be able to conclude, after considering the totality
of circumstances, that the property was a
‘substantial and
meaningful instrumentality’ in the commission of the
offence(s).
[32]
The
offence with which the respondent was charged is that of illegal
possession and transportation of stolen and/or suspected stolen
goods. In support of this charge, the applicant alleged that the SAPS
observed on CCTV footage that the truck that was hijacked
was being
followed by a Toyota Quantum 2.4 D panel. This evidence in the
applicant’s founding affidavit was not denied by
the
respondent.
[33]
The
applicant also alleged that Jacobs identified the respondent in an
identity parade as one of the persons who had held him hostage
in the
shack in Motherwell after the hijacking.
[34]
It
is presumed that the ‘two guys’ were the persons from
whom the respondent was to collect the goods to be transported
for
the Somalian gentlemen referred to by the respondent. The respondent
did not in his answering affidavit provide more details
about the
Somalian gentleman such as his name, what the goods were the
respondent was to collect, and who the respondent was to
collect the
goods from. The two guys are also not identified. The respondent does
not venture more facts on the identities of the
‘two guys’
as to how they knew that the respondent was the person to collect the
goods from them, and why the goods
were not collected in Port Alfred
as requested by the Somalian gentleman. One is left guessing as to
all these inconsistencies.
[35]
The
respondent has also not alleged whether he told the police about the
‘two guys’ from whom he had received the goods.
If he
did, the police could or should have pursued them because they gave
the goods to the respondent before the police arrived.
[36]
The
question which must be answered is whether the property was used as
an instrumentality of the offence. If this court finds that
the
property was used as an instrumentality, then it must be found that
the property must be forfeited to the State. However, to
reach this
conclusion, certain questions must be asked to assist the court to
reach that conclusion.
[37]
The
first such question is: was the property used to commit an offence?
The applicant alleged that the SAPS members stopped the
respondent
and Mr Wali Mohammad between Alexandria and Kenton-on-Sea and were
found in the possession of the stolen and/or suspected
stolen goods.
It is not in dispute that the respondent was found in possession of
the stolen and/or suspected goods. The respondent
in his answering
affidavit alleged that when he was being arrested, he was never asked
for an explanation and despite trying to
communicate with the police
official, he was told to keep quiet and that he should explain his
story to the Magistrate. The respondent
did not venture to give an
explanation in his answering affidavit despite having the opportunity
to do so. No explanation is provided
as to why the respondent did not
do so. It may be because the respondent did not want to make
allegations which may incriminate
him in the criminal case. However,
the criminal case has no bearing on this application for the present
purposes.
[38]
In
terms of the
Cook Properties
case mentioned above, a
respondent may raise a defence that s/he neither knew nor had
reasonable grounds to suspect that the property
had been an
instrumentality in an offence. The respondent has not raised this
defence, as is evidenced in the preceding paragraph.
[39]
For
the above reasons, I am therefore unable to find that the respondent
falls within the meaning of an innocent owner for the property
to be
excluded from the operation of the forfeiture order on this basis.
[40]
The
next question to be asked to determine if the property was an
instrumentality of the offence, in terms of the guiding principles
in
Cook Properties,
is whether the link between the crime
committed and the property is reasonably direct, and if the
employment of the property was
functional to the commission of the
crime, so that it can be said to play a reasonably direct role in the
commission of the offence.
In answering this question, one must ask
whether the property facilitated or made possible the commission of
the offence, and was
not merely incidental to, the commission of the
offence.
[41]
The
offence with which the respondent was charged is illegal possession
and transportation of stolen and/or suspected stolen goods.
The
property was used to transport the stolen and/or suspected stolen
goods at the time of the arrest of the respondent by the
police. This
proves a direct link between the crime committed and the property.
There is sufficient evidence that the employment
of the property was
functional to the commission of the crime. The property facilitated
or made possible the commission of the
offence and was not merely
incidental to the commission of the offence.
[42]
When
applying the
Prophet (SCA)
factors to determine to measure the
strength and extent of the relationship between the property sought
to be forfeited and the
offence, the answer can only be in the
affirmative on the facts and evidence
in casu
. According to
the evidence of the applicant, the property was observed on CCTV
camera from the day of the hijacking following the
hijacked truck and
was stopped and the respondent found in the possession of the goods
that were reported stolen from the same
truck.
[43]
Taking
into consideration all the evidence, the applicant has proved on a
balance of probabilities that the property was an ‘instrumentality
of the offence’ of illegal possession and transportation of
stolen and/or suspected stolen goods. The respondent’s
version
of events does not sustain a defence to the offence, nor has any of
the evidence of the applicant been disputed by the
respondent. I
therefore conclude, after considering the totality of circumstances,
that the property was a ‘substantial and
meaningful
instrumentality’ in the commission of the offence.
Proportionality.
[44]
The
concept of proportionality in instrumentality cases was introduced by
the matters of
Prophet
and
Monunram
[18]
.
The
court held in
Mohunram
that
the purpose of the proportionality enquiry is to determine whether to
grant a forfeiture order would amount to an arbitrary
deprivation of
property in contravention of section 25(1) of the Constitution. It
was further held that the interpretation of POCA
(and more
particularly of ‘instrumentality of an offence’) as
reaching beyond the ambit of ‘organised crime’
and
applying to cases of individual wrongdoing could result in situations
of clearly disproportionate and hence unacceptable forfeiture,
and
court must be sensitive to and on their guard against this.
[45]
The
Constitutional Court in
Mohunram
then elaborated on the
proportionality enquiry as follows:
“
[57]
The
proper application of a proportionality analysis weighs the
forfeiture and, in particular, its effects on the owner concerned,
on
the one hand, against the purposes the forfeiture serves, on the
other. The broader societal purposes served by civil forfeiture
under
Chapter 6 of POCA have been held to include:
·
removing
incentives for crime;
[19]
·
deterring
persons from using or allowing their properties to be used in crime;
·
eliminating
or incapacitating some of the means by which crime may be committed;
and
·
advancing
the ends of justice by depriving those involved in crime of the
property concerned.”
[46]
The
court in
Mohunram
referred to
Prophet, and held –
“…
whilst
acknowledging that the standard for establishing arbitrariness is
different to the standard of proportionality, Nkabinde
J nonetheless
adopted the following factors as some of those which would be
relevant to the proportionality enquiry:
·
whether
the property is integral to the commission of the crime;
·
whether
the forfeiture would prevent the further commission of the offence
and its social consequences;
·
whether
the “innocent owner” defence would be available to the
respondent;
·
the
nature and use of the property;
[20]
and
·
the
effect on the respondent of the forfeiture of the property.”
[47]
The
applicant submitted that it is for the owner to place the necessary
material for a proportionality analysis before the court,
and he has
failed to do so. I agree with the applicant that the respondent has
not placed any facts or proof before this court
to decide on the
proportionality analysis
in casu.
I
therefore find that is proportionate to forfeit the respondent’s
property to the state in the circumstances.
[48]
In
reaching my conclusion above, I had to consider if the respondent
falls within the meaning of an innocent owner for the property
to be
excluded from the operation of the forfeiture order. Since I have
already decided the application in favour of the applicant,
it is not
necessary to make this determination because the respondent does not
fall within the meaning of an innocent owner.
[49]
During
the hearing of the application, Ms du Toit on behalf of the
respondent submitted that the applicant in the replying affidavit
alleged new facts to which the respondent could not respond. One such
allegation was that the arrest of the respondent by the SAPS
was
imminent. I asked Ms du Toit if the respondent should not have
brought an application for the filing of a further affidavit
to
address the new facts, and the response was that perhaps that should
have been done. Mr Myburgh for the applicant also made
this
submission in his reply. I am of the view that the facts in the
replying affidavit of the applicant, though they may be new
and
additional facts, do not influence the determination of the issues
before me. Those facts were not considered in my decision
as they do
not make a difference to the outcome of the matter.
Order.
Accordingly,
the following order shall issue:
1.
In
terms of
section 53(1)(a)
of the
Prevention of Organised Crime Act
No. 121 of 1998
, a Toyota Quantum 2.5D Panelvan with the following
details:
1.1
Registration
number:
F[...];
1.2
Vehicle
Registration number:
D[...]; and
1.3
Chassis
number:
J[...] (the property),
be
and is hereby declared forfeit to the State.
2.
Rina
Van Niekerk of Aucor Auctioneers (Pty) Ltd be appointed to act in
terms of this order.
3.
Pending
the taking effect of this order, the property shall remain under the
control of Rina Van Niekerk.
4.
The
applicant is directed to serve a copy of this order, the preservation
order and preservation application papers on the respondent.
5.
Rina
Van Niekerk shall ensure that the property shall be sold either by
private treaty or public auction and shall transfer the
proceeds of
the sale into the Criminal Assets Recovery Account with account
number 0[...] held at the Reserve Bank within twenty
days of service
of this order, the preservation order and preservation application on
the respondent in the event that the respondent
does not bring an
application for the rescission and/or preservation of this order
and/or the preservation order.
DV
PITT
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant :
Adv W
Myburgh
Instructed
by :
THE STATE ATTORNEY
Gqeberha
Counsel
for the Respondents :
Adv du Toit
Instructed
by :
CAROL GESWINT
Gqeberha
Heard
on :
1 February 2024
Date
delivered :
23 April 2024
[1]
(1792/2019)
[2022] ZANCHC 13
(25 March 2022).
[2]
Chapter 6 of POCA outlines the requirements and process involved.
[3]
NDPP v
Mohamed NO
2003
(4) SA 1
CC at para 16.
[4]
2004 (2) SACR 208 (SCA).
[5]
(917/2018)
[2021] ZAECPEHC 51 (14 September 2021).
[6]
NDPP v
Gallant supra;
Para
10 of
NDPP
v RO Cook Properties.
[7]
See also
Mohamed
1 supra
at
para 17.
[8]
2007 (6) 169 (CC) at para 58.
[9]
Mohamed
1
at
para 17
,
Prophet
at
para 58, and
Mohunram
and another v NDPP and others [2007] ZACC
at
fn 15
.
[10]
Cook
Properties,
in
referring to
Mohammed
1 supra.
[11]
Mohamed
supra
at
para 18 as cited in
Cook
Properties
at
paras 11 and 17.
[12]
Cook
Properties supra at para 11
.
[13]
Cook
Properties supra
at
para 21.
[14]
Supra
.
[15]
Cook
Properties supra
at
para 12.
[16]
Mohamed
1 supra
para
17 as cited in
Cook
Properties supra
at
para 14.
[17]
Cook
Properties supra
at
para 31.
[18]
Mohunram
v NDPP
2007
(4) SA 222 (CC).
[19]
This purpose will be particularly relevant where one is dealing with
the forfeiture of the proceeds of unlawful activities and
may rarely
be applicable in the context of the forfeiture of the
instrumentalities of offences.
[20]
Particularly in the case of immovable property, the question
whether, in addition to being “an instrumentality of an
offence”, the property is also used as a residence.