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[2022] ZAFSHC 292
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National Director of Public Prosecutions v Khoza and Another (1406/2022) [2022] ZAFSHC 292 (4 November 2022)
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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
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
1406/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
JOSEPH
KHOZA
1
ST
Respondent
JOSEPH
S PROJECT CC
2
nd
Respondent
CORAM:
JP
DAFFUE J
HEARD
ON:
27
OCTOBER 2022
DELIVERED
ON:
4
NOVEMBER 2022
ORDER
1.
The following properties, subject to a
preservation order granted by this court under the above case number
on 14 April 2022, are
declared forfeited to the State in terms of s
50 of the Prevention of Organised Crime Act 121 of 1998 (POCA):
1.1
A Scania truck with registration number
[....] with engine number [....] and chassis number [....];
1.2
A Tanker trailer with registration
number [....] with chassis number [....];
1.3
A Toyota Land Cruiser double cab with
registration number [....] with engine number [....] and chassis
number [....] (the properties).
2.
The appointment of a curator bonis is
dispensed with and the properties shall vest in the custody of the
station commander of the
South African Police Service in Vrede, or an
officer of equal or higher rank, and her/she is hereby directed to
deal therewith
as follows:
2.1
To assume control of the properties and
take it into his/her custody;
2.2
when the forfeiture order comes into
effect, to hand over the properties to Selinah Letuka (Letuka), an
enforcement officer with
the Asset Forfeiture Unit, for Letuka to
dispose thereof by public auction or other means and to deposit the
proceeds of the sale
of the properties into the Criminal Asset
Recovery Account established under s 63 of POCA, number [....] held
at the South African
Reserve Bank, Vermeulen Street, Pretoria.
3.
Any person whose interest in the
properties concerned is affected by the forfeiture order may within
20 days after he/she/it has
acquired knowledge thereof set the matter
down for variation or rescission by the court.
JUDGMENT
Introduction
[1]
On 14 April 2022 the National Director of
Public Prosecutions (the NDPP) brought an ex parte application to
this court in accordance
with s 38(2) of the Prevention of Organised
Crime Act 121 of 1998 (POCA) whereupon a preservation order was
granted on the same
day pertaining to the following properties:
1.1
A Scania truck with registration number
[....]with engine number [....] and chassis number [....];
1.2
A Tanker trailer with registration
number [....]with chassis number [....];
1.3
A Toyota Land Cruiser (the Land Cruiser)
double cab with registration number [....]with engine number [....]
and chassis number
[....] (the properties).
The
order was duly served and published whereupon the first respondent,
Mr Joseph Khoza (Mr Khoza) filed an affidavit in terms of
s 39(3) and
(5) of POCA. I shall deal later herein again with the contents
of this affidavit.
[2]
On 24 June 2022 the NDPP issued an application
to declare the truck, tanker trailer and Land Cruiser (the
properties) forfeited
to the State. The respondents filed an
answering affidavit, deposed to by Mr Khoza, to which the NDPP
replied whereupon the opposed
application was enrolled for hearing on
27 October 2022. After hearing argument judgment was reserved.
Asset
forfeiture in terms of POCA
[3]
Section 50 of POCA provides that the High Court
shall, subject to s 52 make an order applied for in terms of s 48(1)
if it finds
on a balance of probabilities that the property concerned
was inter alia an “instrumentality” of an offence
referred
to in schedule 1 of the Act.
[4]
A forfeiture order may only be issued in
respect of property which is the subject of an existing preservation
order under s 39 of
POCA. It is common cause that this is so in this
case. The respondents’ counsel argued that by the time the
preservation
order was granted, the Land Cruiser had already been
returned to the respondents. He also accused the NDPP of providing a
false
version to the court when applying ex parte for the
preservation order. The NDPP’s counsel submitted that
when he applied
for that relief he was unaware of this fact. In
ex parte applications the utmost good faith is expected of litigants
and
their legal representatives and the relief obtained may be set
aside in appropriate circumstances if it appears at a later stage
that incorrect facts were placed before the court or facts were not
placed before the court that were supposed to be provided.
In my
view, the fact that a SAPS member returned the Land Cruiser to the
respondents during the investigation could not be a bar
to a
successful preservation order. There can be no doubt that the Land
Cruiser was involved and used in order to commit a crime
insofar as
the pumps and equipment used to pump the stolen diesel to the tanker
trailer of the second respondent were conveyed
in the Land Cruiser.
Objectively speaking, even if the return of the Land Cruiser was
disclosed, the court would have granted the
preservation order on the
common cause facts of this case.
[5]
Chapter
6 of POCA is focused on property that either has been used to commit
an offence or which constitutes the proceeds of crime
and not on the
wrongdoers themselves. The chapter may be invoked even where there is
no prosecution as it is not conviction-based.
[1]
As indicated, the NDPP merely has to prove on a balance of
probabilities that the property concerned is an ‘instrumentality’
of an offence. The guilt or wrongdoing of the owner or possessor of
the property is not primarily relevant to the proceedings.
Common
cause facts
[6]
The following facts are either common cause
between the parties, or not pertinently disputed:
6.1
Joseph S Project CC (the CC), cited as second respondent in the
application of which Mr Khoza is the sole
member, is the owner of the
properties;
6.2
At about 03h30 on 22 September 2020 Lieutenant Colonel Odendaal (Col
Odendaal) and a colleague pursued the
Land Cruiser who started to
speed up at that stage, but they managed to pull it off the road. The
driver was Mr Celimino Ndimande
(Ndimande) who was accompanied by two
male persons, to wit Messrs Matsiba and Mcimochor. Inside the Land
Cruiser the SAPS members
found a big yellow diesel fuel pump, a
mobile pump as well as a black bag. The three persons, who
could not explain from
where they were coming, were arrested on
suspicion of theft of diesel and taken to the Vrede police station;
6.3
Odendaal established that the Land Cruiser belonged to the CC.
He also received information about two
Scania trucks, carrying diesel
that was possibly stolen at Mooi River, which were on their way to
Mpumalanga;
6.4
At about 06h20 that same morning the SAPS members spotted a Scania
truck and tanker trailer on the Vrede/Warden
road. They stopped the
truck and checked the load. Contrary to the load papers
provided to them by the driver indicating
that metal was transported,
the tanker trailer contained fuel which was later positively
identified as diesel. Contrary to
the relevant regulations the
inlet, outlet and control valves of the tanker were not sealed and
the driver, Mr Joseph Msindo (Msindo),
could not produce any permit
for transporting fuel;
6.5
Msindo mentioned that he was employed by a certain Joseph from Delmas
who had instructed him to transport
a load diesel from Mooi River. It
was established that the Scania truck and tanker trailer also
belonged to the CC;
6.6
The properties were confiscated by SAPS under Vrede CAS 91/09/2020;
6.7
Msindo was arrested for transporting stolen diesel;
6.8
First respondent made a statement to SAPS and confirmed his version
in the affidavit filed in terms of subsecs
39(3) and (5) of POCA as
well as in his answering affidavit in the forfeiture application, a
version which will be evaluated under
the next heading.
6.9
The diesel transported in the tanker trailer was valued at R525 200
and according to samples taken from the
freight the diesel was stolen
from the Transnet Pipelines Island View storage tank on 13 September
2020;
6.10
Theft of fuel from the Transnet pipelines has become extremely
prevalent recently with millions of rands being lost and
the DPCI in
the Free State is busy investigating these organised crime related
offences.
6.11
The estimated value of the properties is R600 000;
Evaluation
of the facts in dispute
[7]
As mentioned in the previous paragraph,
numerous material facts are either common cause, or not seriously
disputed. Consequently,
an evaluation of the respondents’
version is called for, bearing in mind the objective facts and other
issues not in dispute.
[8]
Mr Khoza deposed to two affidavits in these
proceedings on behalf of himself as well as the CC. He indicated in
his statement to
SAPS that a certain Mr Rafick (Rafick) attended at
his work place and requested to hire a truck and tanker trailer as
his own truck
was stuck at Mooi River and had to be taken in for
repairs. I interpose to mention that the CC’s registered
address is in
Benoni whilst Mr Khoza mentioned two addresses in his
SAPS statement, to wit in Benoni and Delmas respectively. In his
answering
affidavit he provided the address in Delmas as his
residential address. It was agreed that the diesel would be pumped
from Rafick’s
truck into the CC’s tanker trailer.
Rafick also requested a bakkie to transport the tools that he
required for the
operation which was also provided, being the Land
Cruiser. Mr Khoza’s two employees would be the drivers of
the vehicles
rented out. The rental costs agreed upon was R15 000 in
respect of the truck and tanker trailer and R5 000 in respect of the
Land
Cruiser. The amount of R20 000 was paid in cash. This verbal
agreement was entered into on 21 September 2020 and in terms thereof
the vehicles would be returned the next day, but that never happened.
Mr Khoza did not request and/or receive any information whatsoever
pertaining to Rafick; neither his full names, nor his identity
number, cell phone number, address or the registration number of
his
broken down truck. There is no indication that he issued a receipt to
Rafick or that the transaction was captured in his books
of account.
Upon being contacted by his one driver he went to the Vrede police
station on 22 September 2020.
[9]
The
proceedings are opposed motion proceedings wherein the NDPP is
seeking final relief; therefore, any factual dispute arising
on the
papers should be resolved in accordance with the
Plascon-Evans
rule.
[2]
Unless the
circumstances are special, opposed motion proceedings are not
designed to determine probabilities and a final order
can only be
granted if the facts averred in an applicant’s founding
affidavit which have been admitted by the respondent
together with
the facts alleged by the latter justify such an order. However, when
a respondent’s version consists of bald
or uncreditworthy
denials and/or raises fictitious disputes of fact and/or is palpably
implausible, far-fetched or clearly untenable,
a court is justified
in rejecting such version merely on the papers.
[10]
Bearing in mind the undisputed evidence and
common cause facts mentioned under the previous heading it is
necessary to consider
the respondents’ version. In my view the
version is so palpably implausible, far-fetched and uncreditworthy
that this court
is entitled to reject it merely on the papers and I
say this for the following reasons:
10.1
Mr Khoza insisted in both affidavits filed in these proceedings that
he is the owner of the truck, tanker trailer and
Land Cruiser whilst
the objective documentary evidence reveals that the CC with
registered address in Benoni is the owner;
10.2
When the SAPS members asked for the required paper work, the truck
driver handed over a document relating to the transportation
of metal
products whilst he was transporting fuel. In this regard counsel for
the respondents argued that the duty to complete
this documentation
rested upon Rafick. This argument is untenable as the owner of the
truck and tanker trailer, the CC represented
by Mr Khoza and/or its
driver, had a duty to ensure that the documentation was in order;
10.3
According to Mr Khoza, Rafick, who was unknown to him at all relevant
times, arrived at his offices in Delmas on 21 September
2020. Rafick
wanted to hire a truck and tanker trailer to transport diesel.
According to his version Rafick’s truck had broken
down in Mooi
River several hundred kilometres away in KwaZulu-Natal. It is Mr
Khoza’s case that he is a businessman and owner
of eleven
trucks and is involved in the transportation sector of our economy
for the past 18 years. He wanted to convince
the court that he
entered into a verbal agreement with a stranger without obtaining any
personal details of this person and/or
to the destination to which
the diesel was supposed to be transported. Mr Khoza, failed to obtain
proof from Rafick that the diesel
had been obtained from a reliable
source and that the storage in the tanker and transportation thereof
would be in line with the
applicable legislation and regulations. His
failure must be considered against the backdrop that his insurance
might have been
at risk if illegal, unauthorised and/or inflammable
goods without proper safety precautions were transported, not to
mention the
possibility of his vehicles being seized for transporting
illegal goods;
10.4
Mr Khoza tried to create a distance between himself and the illegal
transportation by denying that he went to Mooi River.
The
crucial question to be considered is how the Land Cruiser arrived in
Mooi River bearing in mind the version of his own employee,
Ndimande
on whose police statement Mr Khoza relied.
[3]
I quote:
‘
On
Monday 21.09.2020 at about 11:00 it happened that I was informed by
my boss Mr Joseph Khoza that myself and the other driver
Mr Msindo
must go to Mooi River. He never exactly told us what we were going to
do there. On our arrival at Mooi River
we went to a
nearby truck stop
.
I
was driving one truck
and
could not remember its registration numbers with, whilst A/male
Msindo
was also
driving another
truck
. We then slept
there. At around 21:00 it happened that A/male known as Rafael
came to me, requested the keys to the
truck that I was driving.
I handed the keys to him and
he
gave me the Toyota Cruiser keys
.
On
Tuesday 22.09.2020 at around 01:00 he informed me that I should
travel with Toyota Land Cruiser.
By
then
, there were two A/males
on the bakkie. I then travelled from Mooi River….’
.
(emphasis added.)
There
can be no doubt that this statement records, contrary to Mr Khoza’s
version, that Ndimande and Msindo were the drivers
of two trucks who
travelled to Mooi River where Ndimande eventually met this person
Rafael and later the other two male persons
whom he found, on his
version, in the Land Cruiser who accompanied him until apprehended by
SAPS.
10.5
In his warning statement Msindo refused to give any explanation,
although he indicated the following to Col Odendaal
immediately after
being stopped and during questioning about permits:
[4]
‘…
that
he has a load Diesel that he was ask to take from Mooirivier during
the night and that he has no papers and the guy who hires
him is a
certain Joseph from Delmas and that Rafael is on the way with another
truck. …’.
This
version to Col Odendaal immediately after being stopped that another
truck with a load of diesel driven by Rafael was on its
way is in
line with that of Ndimande that the two of them were the drivers of
two trucks that went all the way to Mooi River.
10.6
On Mr Khoza’s version the two persons apparently employed by
Rafick accompanied his drivers to Mooi River in order
to show them
the location of Rafick’s broken down truck. He referred
to this aspect twice in his answering affidavit
and stated the second
time:
[5]
‘
The
physical possession of my vehicles was with my two drivers. Mr
Raffick further provided me with his employees, Timashe Matsiba
and
Victor Mcichimori who assumed the role of directing my drivers to
where the
goods were to be
fetched
.’
(emphasis
added.)
This
version is clearly contradicted by Ndimande in his statement relied
upon by the respondents and also his own affidavit filed
in terms of
subsecs 39(3) and (5) of POCA.
[6]
10.7
According
to Mr Khoza he owns eleven trucks. On his version and bearing
in mind the years spent in the transport industry
he had never
questioned the legality of the goods to be transported by his
customers when using his vehicles, whether for personal
or commercial
use. Contrary hereto he eventually mentioned that after the
seizure of his property he only has one truck to
be used in his
business and that the truck and tanker trailer seized by SAPS
generated a rental income of R80 000 per month.
[7]
No financial statements and/or accounting records have been placed
before the court to prove the veracity of his version. This
is just
another example of a bald statement which is not worthy of
acceptance. Also, this version contradicts the deponent’s
earlier version in the same affidavit as well as his earlier
affidavit in terms of subsecs 39(3) and (5) of POCA.
10.8
I
am satisfied that Rafick (or Rafael) is a figment of Mr Khoza’s
imagination and that such person does not exist at all.
In concluding
the evaluation of the factual disputes, it is worth mentioning what
the Supreme Court of Appeal has stated in
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another.
[8]
Litigants are warned to seriously and unambiguously address the facts
said to be disputed in opposed motion procedure. When
a
respondent signs an answering affidavit they commit to the contents
thereof, inadequate as they may be. There is also a
serious
duty on the legal adviser who settles an answering affidavit to
ascertain and engage with facts which the client disputes
and to
reflect such disputes fully and accurately. Recently the
Supreme Court of Appeal considered a respondent’s opposition
in
a case where the NDPP unsuccessfully sought a forfeiture order in the
high court.
[9]
After
criticizing the respondent’s ‘bald allegations
unsupported by any evidence or reason’ it concluded
that the
inescapable inference to be drawn from the totality of the facts was
that the particular funds were derived from unlawful
activities.
Consequently, the NDPP’s appeal succeeded.
Proportionality
[11]
Courts
are required to be acutely aware and sensitive towards the
constitutional rights of respondents in considering forfeiture
orders. Compliance with chapter 6 of POCA has the potential of
intruding on the constitutional guarantee against arbitrary
deprivation of property. Therefore, as Nugent JA stated, ‘there
needs at least be a rational relationship between the deprivation
and
the legislative ends that are sought to be attained through the
deprivation.’
[10]
[12]
The
Supreme Court of Appeal stated in
Prophet
v National Director of Public Prosecutions (Prophet)
[11]
that
the owner of property to be declared forfeited must present evidence
before the court in order for it to do a proper proportionality
analysis. It was also recorded in the majority judgment that
‘(a) mere sense of disproportionality should not lead
to a
refusal of the order sought’ and ‘(t)o ensure that the
purpose of the law is not undermined, a standard of “significant
disproportionality” ought to be applied for a court to hold
that a deprivation of property is “arbitrary” and
thus
unconstitutional,…’. Ponnan JA cautioned in a minority
judgment that the courts should be vigilant to ensure
that the
provisions of POCA are not used
in
terrorem,
explaining
that the ‘draconian effect’ of POCA ‘would be
exacerbated,… were the elevated benchmark “significantly
disproportionate” to be applied
.’
[12]
The
Constitutional Court did not express itself on this specific issue in
an appeal to that court.
[13]
[13]
I
considered the following aspects in the proportionality analysis:
[14]
13.1
The respondents did not deny the respective values of the preserved
properties and the stolen diesel;
13.2
The evidence is indicative of a rational link between transportation
of the stolen diesel and criminal gang activities;
13.3
The scale of theft of diesel on the particular Transnet pipeline is
huge and requires extraordinary measures for its
detection,
prosecution and prevention, especially insofar as there can be little
doubt that SAPS is confronted with organised crime
committed by
sophisticated syndicates using expensive vehicles;
[15]
13.4
The use of the property was deliberate and planned and not merely
incidental;
13.5
The property was important to the success of the illegal activity
insofar as the tanker trailer was specifically manufactured
to
transfer fuel like diesel and the Land Cruiser was suitable to
transport the pumps and equipment required;
13.6
The property was illegally used during night time and over an
extended distance of hundreds of kilometres during level
3 of the
Covid 19 regulations without authorisation;
[16]
13.7
On all probabilities the admitted transportation of diesel was not an
isolated event, bearing in mind that two trucks
transporting diesel
were on their way the same night from KwaZulu-Natal en route through
the Free State Province to somewhere in
Mpumalanga;
13.8
If the truck and tanker trailer were acquired and/or used or rented
out for legitimate business purposes, the respondents
would be able
to present invoices, accounting records or financial statements
confirming this, which they failed to do.
Conclusions
[14]
I am satisfied that the NDPP was entitled to
obtain a preservation order and that the application for forfeiture
was brought timeously
after service and publication of that order.
Furthermore, a proper opportunity was provided to the respondents to
respond to the
allegations which they did, referring again to the
affidavit in terms of subsecs 39(3) and (5) of POCA as well as the
answering
affidavit in the forfeiture application. Having rejected
the version presented by the respondents and bearing in mind the
objective
and common cause facts as well as the issue of
proportionality, a proper case has been made out for the relief
sought by the NDPP.
Order:
1.
The following properties, subject to a
preservation order granted by this court under the above case number
on 14 April 2022, are
declared forfeited to the State in terms of s
50 of the Prevention of Organised Crime Act 121 of 1998 (POCA):
1.1
A Scania truck with registration number
[....]with engine number [....] and chassis number [....];
1.2
A Tanker trailer with registration
number [....]with chassis number [....];
1.3
A Toyota Land Cruiser double cab with
registration number [....]with engine number [....] and chassis
number [....] (the properties).
2.
The appointment of a curator bonis is
dispensed with and the properties shall vest in the custody of the
station commander of the
South African Police Service in Vrede, or an
officer of equal or higher rank, and her/she is hereby directed to
deal therewith
as follows:
2.1
To assume control of the properties and
take it into his/her custody;
2.2
when the forfeiture order comes into
effect, to hand over the properties to Selinah Letuka (Letuka), an
enforcement officer with
the Asset Forfeiture Unit, for Letuka to
dispose thereof by public auction or other means and to deposit the
proceeds of the sale
of the properties into the Criminal Asset
Recovery Account established under s 63 of POCA, number [....] held
at the South African
Reserve Bank, Vermeulen Street, Pretoria.
3.
Any person whose interest in the
properties concerned is affected by the forfeiture order may within
20 days after he/she/it has
acquired knowledge thereof set the matter
down for variation or rescission by the court.
J
P DAFFUE, J
On
behalf of the Applicant:
Adv KJA
Ntimutse
Instructed
by: Asset
Forfeiture Unit
BLOEMFONTEIN
On
behalf of the Respondents:
Adv
T Mogwera
Instructed
by:
Tshepo
Thusi Attorneys
BLOEMFONTEIN
[1]
National
Director of Public Prosecutions & Another v Mohamed NO &
Others
[2002] ZACC 9
;
2002
(2) SACR 196
(CC) paras 14-17.
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E–635C.
[3]
Annexure
JK5 on p 62 of the forfeiture application.
[4]
Affidavit
of
Col
Odendaal, annexure BS5 at p 38.
[5]
Mr
Khoza’s version appears in paras 7.3 (the first version) &
32 (the second and confirmatory version) pp 44 & 48
respectively.
[6]
Paras 18.3 and 18.4 of the affidavit dated 9 June 2022 where Mr
Khoza indicated that his two drivers would find Rafick and his
two
employees in Mooi River and that they would give directions where
‘the goods were going to be offloaded.’
[7]
Paragraphs
12 and 31 of the affidavit in terms of subsecs 39(3) & (5) of
POCA.
[8]
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) para 13.
[9]
National
Director of Public Prosecutions v Moyane
(474/2021)
[2022] ZASCA 79
(31 May 2022).
[10]
National
Director of Public Prosecutions v Van Staden and Others
2007 (1) SACR 338
(SCA) para 4, quoting with approval
National
Director of Public Prosecutions v R O Cook Properties (Pty) Ltd
2004 (2) SACR 208
(SCA) paras 15 & 16.
[11]
The majority judgment in
Prophet
v National Director of Public Prosecutions
2006 (1) SA 38
(SCA) para 37.
[12]
Ibid paras 45 & 47.
[13]
Prophet
v National Director of Public Prosecutions
[2006] ZACC 17
;
2006 (2) SACR 525
(CC) para 69.
[14]
Ibid paras 58 – 69.
[15]
Mohunram
v National Director of Public Prosecutions
[2006] ZASCA 12
;
2007 (4) SA 222
(CC) para 126.
[16]
Affidavit of Col Odendaal, annexure JK 2 at p 53