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[2022] ZANCHC 13
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National Director of Public Prosecutions v Ngunge (1792/2019) [2022] ZANCHC 13 (25 March 2022)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
1792/2019
Heard:
17/01/2022
Delivered:
25/03/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
and
ELIYA
MUGALUSI
NGUNGE
Respondent
Coram:
Mamosebo J et L Lever J et Nxumalo J
JUDGMENT
ON APPEAL
Mamosebo J
[1]
On 16 August 2019, Phatshoane ADJP granted an order in terms of s
38(2) of the Prevention
of Organised Crime Act
[1]
(POCA)
ex
parte
for
the provisional preservation of property preserving R15,500.00 in
cash and an Isuzu KB 300TDi with registration numbers and
letters
[....] with chassis number [....] and engine number [....]. The rule
nisi
was
extended on several occasions but confirmed
by
Vuma AJ on 13 December 2019.
[2]
On 14 May 2021 the applicant, now the appellant in this appeal, the
National Director
of Public Prosecutions (the NDPP), sought a
forfeiture order in terms of s 48 r/w s 50 of POCA on the basis that
the property was
an instrumentality of an offence and/or proceeds of
unlawful activities listed under Schedule 1 to POCA. The respondent,
Mr Eliya
Mugalusi Ngunge, opposed the application. The trial court
dismissed the application and ordered the NDPP to return or cause to
return to the respondent the cash amount of R15,500.00 and the Isuzu
motor vehicle. This appeal is with the leave of the trial court.
[3]
The appeal is premised on the following grounds that the trial court
erred in finding
that:
3.1 The
appellant did not prove on a balance of probabilities that the
property is an instrumentality of an offence;
3.2 It
is common cause that the order made by the Magistrate on 31 May 2018
is an order that has to be appealed
or reviewed before the appellant
can proceed with an application in terms of section 38 and 48 of the
Prevention of Organised Crime
Act, 121 of 1998 (POCA);
3.3 The
appellant conceded the lawfulness of the aforementioned court order
by the Upington Magistrate Court;
3.4 The
respondent had a
bona fide
belief that he is entering into a
lawful agreement with Tsotetsi;
3.5 The
long delay in bringing the preservation application in terms of POCA
was unexplained, put differently,
should have been explained;
3.6 No
significant losses and/or damage was suffered by the lawful owner of
those goods; namely the truck, boxes
of soup and the cell phone;
3.7 The
respondent was prejudiced in these circumstances;
3.8
Reliance by the appellant on s
50(4) of
POCA is misplaced;
3.9
Relevant information, facts and circumstances which might have had an
impact on the decision of the Court
in the preservation application
was not brought to the attention of the Court and/or remains
unexplained;
3.10 The respondent
was and/or had an innocent owner defence; and
3.11 Costs be
awarded to the respondent [Mr Ngunge].
[4]
Before turning to the circumstances that gave rise to this appeal, it
is necessary
to sketch the factual background of the events which are
mainly common cause or are not seriously disputed. Louw Transport in
Harrismith,
Free State Province, employed Mr Tshepiso Enoch Tsotetsi.
On 19 January 2021, his truck was loaded at Petermaritzburg Unilever
with 64 pallettes of soup boxes with three different flavours to be
transported to Mr Nicolaas Thiart of Wutow Trading, Windhoek,
Namibia.
[5]
On 21 January 2018, Mr Tsotetsi was in the vicinity of Upington and
was about
to cross through the
Ariamsvlei Border Post into Namibia. Mr Tsotetsi pulled his truck to
the side of the road on the Upington/Groblershoop
road where he was
joined by the respondent who arrived at the scene in the Isuzu bakkie
already described above. They were seen
offloading boxes from the
truck into the Isuzu bakkie. A report was made to Capt. Hermanus van
Wyk who was on duty when the information
was received.
[6]
Captain van Wyk attended the scene, which was 15 kilometres from
Upington, Tsotetsi,
the driver of the truck, was not present. Van Wyk
requested back-up. His colleagues arrived shortly thereafter. The
respondent
was at the Isuzu bakkie. Van Wyk observed boxes not only
inside the Isuzu but also at the back of the Isuzu under a canopy. He
enquired from the respondent about the boxes. His reply was that he
and the truck driver had off-loaded the boxes from the truck
onto
the Isuzu. Van Wyk’s further observation was that
although the truckload was covered with a canvas, which he pulled
away,
there were open spaces between the boxes packed at the back of
the truck. The respondent informed
van
Wyk that he had an arrangement with Tsotetsi to meet next to the road
to exchange 170 boxes for a cash amount of R10,000.00
(Ten Thousand
Rand).
[7]
Tsotetsi later appeared on the scene barefoot from the Groblershoop
direction. He
furnished different versions to van Wyk. First, that he
was hijacked by three men in the Isuzu bakkie but later somersaulted
and
confirmed the arrangement alluded to by the respondent. Van Wyk
contacted Mr Christoffel Johannes Olivier of Louw Transport who
confirmed the truck’s destination to Windhoek. Olivier made no
mention of a stopover in Upington or offloading of some of
the boxes
in Upington but merely confirmed that the entire truckload was meant
for delivery in Namibia.
[8]
Van Wyk enlisted the assistance of the members of the Local Criminal
Record Centre
(LCRC) who took photographs at the scene. He proceeded
to search the Isuzu and found a
cash
amount of R15,500.00 (Fifteen Thousand Five Hundred Rand) which was
seized together with a blue Nokia phone belonging to Tsotetsi
and the
Isuzu which he took to Upington Police Station. The cash and the cell
phone were booked in the SAP13 register while the
Isuzu was booked at
the Vehicle Safeguard Section in Upington under reference VSS
08/2018. The 125 boxes of soup which were in
the Isuzu were estimated
to cost R87,000.00 (Eighty Seven Thousand Rand).
[9]
The respondent and Tsotetsi were arrested and charged with theft
under Upington CAS
434/01/2018. Mr Jacobus Smit, who is attached to
the Asset Forfeiture Unit as a Senior Financial Investigator, with 16
years’
experience in commercial and organised crime cases,
established ownership of the Isuzu bakkie as that of the respondent
but was
pre-owned by MM Islam and Numul Alam. Both Islam and Alam
furnished confirmatory affidavits renouncing ownership of the bakkie
now valued at R95,200.00 (Ninety-Five Thousand Two Hundred Rand).
[10]
Louw Transport substituted Tsotetsi with another driver who completed
the trip to Windhoek. Upon
delivery of the boxes in Windhoek, it was
established that 134 boxes were missing. Olivier later identified 124
boxes at the police
station as his and they were handed over to him.
[11]
Tsotetsi and the respondent appeared in the Upington Magistrates
Court on 23 January 2018 and
were released on R1,000.00 (One Thousand
Rand) for the respondent and R500.00 (Five Hundred Rand) for
Tsotetsi. Of significance
is that on 31 May 2018 an attorney
Van Zyl legally represented the respondent in the said
magistrate’s court. The case was postponed to 05 June 2018 for
Tsotetsi
to secure the services of a legal aid attorney, the record
reads:
“
Mr
Van Zyl applies that vehicle of his client (No.1)[the respondent] be
returned to his client. State has no objection. It is ordered
that
motor vehicle of No 1 which was confiscated by police be returned to
No 1.”
The case was postponed
several times thereafter for different reasons and on 27 November
2018, as appearing on the face of the charge
sheet, the case was
struck off the roll because the state witnesses were not present in
court. The Isuzu bakkie remains in the
custody of the SAPS under the
authority of the preservation order.
[12]
In the application for the provisional preservation order, the
respondent was advised in terms
of s 39 of POCA to, if he has an
interest in the property, to enter an appearance to oppose the
forfeiture order, disclose the
basis of his defence upon which he
wished to rely for his opposition, and to have his interests excluded
from the forfeiture order.
[13]
A notice was issued to the respondent in terms of s 39(1)(b) of POCA
the contents of which are
relevant:
“
This
notice is addressed to Eliya Mugalusi Ngunge and all other persons
who may have an interest in the R15 500 cash and the
Isuzu KB
300 TDi with registration numbers and letters [....] (the property).
The National Director of Public Prosecutions applied
for and was
granted a preservation of property order in terms of
s 38
of the
Prevention of Organised Crime Act, No. 121 of 1998
in the High Court
of South Africa (Northern Cape, Kimberley). A copy of the application
and order can be obtained from the person
mentioned in par 9
hereunder.
Take notice that:
1.
If you have an interest in the
property, you should understand that it is now at risk. You are
advised to obtain legal advice on
whether your interest can be
protected and, if so, on how to protect it.
2.
You are notified that the National
Director will, within 90 days of publication of this notice, apply to
the High Court under
section 48
of POCA for a forfeiture order. The
preservation order will remain in force until the application for a
forfeiture order is finalised,
and until any forfeiture order that is
made is satisfied.
3.
If you intend to oppose the
application for a forfeiture order, or you intend to apply for an
order excluding your interest from
a forfeiture order in respect of
the property, you must enter an appearance in terms of the order. The
requirements for such an
appearance are set out in the order and are
also dealt with in
sections 39(3)
, (4) and (5) of POCA. An appearance
must comply with these requirements and must be delivered to the
office of the State Attorney
at the address mentioned in paragraph 9,
below.
4.
Your attention is specifically drawn
to the
14-day time limit
prescribed in
section 39(4)
for the entry of an appearance
referred to in paragraph 3 above.
5.
If you enter an appearance in terms
of the order, you will be entitled to be given 14 days’ notice
of the application by the
applicant for a forfeiture order in respect
of the property.
6.
If you fail to enter an appearance
in terms of the order or to comply with the above requirements, you
will not be given notice
of the application for a forfeiture order
and you will not be entitled to appear at the hearing of the
application. In such a case,
the court may grant a default order
forfeiting the property to the state under
section 53
of POCA.
7.
You may, on good cause shown
(including the non-availability of any other suitable remedy to
protect your legitimate rights or interests),
on 3 days notice in
urgent instances and at least 7 days notice in other instances to the
applicant, and within 8 days of becoming
aware of the order, apply
for reconsideration of the order.
8.
You are specifically advised that
even if you intend to apply for reconsideration of the preservation
order in this case, you must,
in addition, comply with paragraphs 5
to 7 above if you intend to oppose the forfeiture application at a
later date. Failure to
do so can result in a forfeiture order being
granted against the property by default and without further notice to
you.
9.
Whenever this order states that you
must deliver or serve any notice, affidavit or other process document
on the applicant, you
must deliver or serve them on the applicant at
the following address: Office of the State Attorney, Mrs Gcilitshana,
First Floor,
Woolworths Building, Cnr Lennox and Chapel Street,
Kimberley. Telephone number 053 807 7800.
(Own
emphasis).
[14]
Mr Eugene Brian Ontong, a Senior State Advocate in the office of the
Director Public Prosecutions,
deposed to the founding affidavit in
the forfeiture application. Of significance is the following
paragraph in the founding affidavit
of Mr Ontong pertaining to the
purported opposition:
“
[22]
The respondent has not entered an appearance following service upon
him and publication in the Government Gazette. The
respondent’s
attorney, Mr van Zyl from Upington, however and by way of a letter
has requested the return of the Isuzu to
the respondent. This in
itself does not constitute a proper entering of an appearance or
opposition in terms of POCA.”
[15]
What is pertinent in this forfeiture application is that the trial
court moved from the premise
that the answering affidavit as
contained at page 99 of the paginated papers was in respect of the
forfeiture application whereas
it related to the preservation
application. My finding is informed by the following: Whereas Mr
Ontong deposed to the following
at para 21.18 of his founding
affidavit:
“
Smit
established that the respondent is the owner of the Isuzu.”
In his answering
affidavit, the respondent said the following in respect of 21.18:
“
The
allegations contained in this paragraph are hereby denied. The
applicant is put to the proof thereof.”
At para 9 (above) I have
referred to the ownership of the Isuzu vehicle and the passing of
ownership to the respondent. If the respondent
persists in denying
ownership of the Isuzu, as it appears in his answering affidavit, the
question to be answered is how does he
derive
locus standi
in this application? Ms Van Dyk, for the
NDPP, however, submitted, correctly that it is unquestionable that
the respondent is the
owner of the Isuzu bakkie.
Ground 1: did the
appellant succeed in proving that the Isuzu bakkie is an
instrumentality of an offence
[16]
Chapter 1 of POCA defines:
[16.1]
“instrumentality of an offence” as meaning “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.
[16.2]
“unlawful activity” means “conduct which
constitutes a crime or which contravenes any law whether such conduct
occurred before or after the commencement of this Act and
whether
such conduct occurred in the Republic or elsewhere.”
[17]
Howie P in
National
Director of Public Prosecutions v Geyser and Another
[2]
pronounced:
“
[17]
To be an instrumentality of an offence the property concerned must by
definition in POCA, be ‘concerned in the
commission’ of
that offence. As the cases have interpreted that definition, the
property must facilitate commission of the
offence and be directly
causally connected with it so that it is integral to commission of
the offence.”
(references
omitted)
[18]
In
Mohunram
and Another v National Director of Public Prosecutions and Another
(Law Review Project as Amicus Curiae)
[3]
Van
Heerden AJ in the ConCourt held:
“
In
other words, the determining question is
‘…
.
whether there is a sufficiently close link between the property and
its criminal use, and whether the property has a close enough
relationship to the actual commission of the offence to render it an
instrumentality.’”
(reference
omitted)
[19]
The R15,500.00 cash is also an instrumentality of the offence when
viewed against the lens of
the respondent and proceeds of an unlawful
activity and juxtaposed with the conduct of Tsotetsi. The cash was
necessary, in other
words, it played an integral part to
the unlawful transaction between the respondent and Tsotetsi.
But for the cash, Tsotetsi would not have offloaded the boxes of soup
onto
the Isuzu. But for the Isuzu, there
would not have been a mode of transport to facilitate and complete
the transaction.
[20]
Mr Jacobs, for the respondent, initially went off script and
lengthily argued on what was not
contended in the papers. When his
attention was drawn to
the absence of an
explanation by the respondent who resides in Pabalello, Upington,
along the route he had to follow, why he would
meet with Tsotetsi on
the roadside and not at a physical address counsel submitted
that it is not pleaded that the truck was from Natal to
Namibia. The answering affidavit spans pages 99 to 107 and there is
no averment
that the truck may not deviate.
[21]
As the shoe started to pinch Mr Jacobs made the submission that the
impediment of the defence
regarding the insufficiency of the
explanation was caused by the respondent’s erstwhile attorneys.
On the contrary, on 16
March 2020, Matlejoane Attorneys served and
filed the respondent’s opposing affidavit. At para 1.3 the
respondent states:
“
Where
I make submissions of a legal nature in this affidavit, I do so based
on the advice that I have received from my legal representative
which
advice I verily believe to be correct. I have read the affidavit of
Eugene Brian Ontong which is attached to the Notice of
Application
for preservation order and which is sought against me and would like
to respond as follows….”
The respondent confirmed
that he believed the above
by his
erstwhile attorneys to be correct.
[22]
The respondent, through the assistance of his erstwhile attorneys or
the current attorneys and
counsel, has not dealt with POCA or its
requirements at all. Mr Jacobs was constrained to concede that had
the respondent’s
current legal team been of the view that
papers required to be supplemented leave would have been sought to
take care of the inadequacy.
Blaming the erstwhile attorneys for a
lacuna that could have been cured by the current team does not assist
the respondent. The
argument has no merit.
[23]
Mr Jacobs argued that the NDPP has not succeeded in proving on a
balance of probabilities that
the property is an instrumentality of
an offence. Counsel made the submission that the respondent was
offloading the boxes whereas
they had already offloaded. The quantity
of boxes, 170, at a cost of R10,000.00, is also significant. R10,000
÷ 170 = R58.82
per box. It means the respondent was paying
R58.82 per box of soup according to his arrangement with Tsotetsi.
According to the
evidence, there was 125 boxes of soup on the Isuzu
with an estimated value of R87,000.00. A quick calculation shows that
R87,000.00
÷ 125 = R696.00 per box. Surely, the respondent
knew or ought to have known that the transaction is suspicious. It
boggles
one’s mind why the respondent would persist that he was
buying soup from a legitimate source. The burden of proof in a POCA
case is on a balance of probabilities and not beyond reasonable
doubt.
[24]
Mr Ontong made this averment at para 21.14 of his founding affidavit:
“
Van
Wyk when he searched the Isuzu found R15,500.00 in cash in the
Isuzu.”
In his answering
affidavit, at p104 the respondent said:
“
The
allegations contained in this paragraph are hereby admitted. The said
cash found in my possession was going to pay for the stock
that was
delivered by the truck driver as per agreement.”
Mr Jacobs urged us to
deduce that the respondent and Mr Tsotetsi had previously spoken.
This came on
the backdrop of the
contention by Mr Jacobs that the erstwhile attorneys wrongly drafted
the opposing papers and that the responses
do not include what the
respondent conveyed
when he consulted
with him. The choice of legal representative rested with the
respondent and consequences of his choice are usually
his to bear.
However, as has already been pointed out the respondent’s
present legal representative could have taken steps
to rectify the
position, yet failed to do so.
[25]
This Court, per Olivier AJ then, in
National
Director of Public Prosecutions v Seleoane
[4]
had
the opportunity to deal with a matter where a motor vehicle was
stopped on a public road and found to contain 56.10kg of dagga,
justifying an inference that an offence of dealing in dagga was being
committed. The Court held that the vehicle was the means
of
transporting the dagga in the commission of an offence and therefore
an instrumentality. The vehicle was declared forfeit to
the State.
[26]
In my view, the mere fact of the arrangement by Tsotetsi and the
respondent to meet at the side
of the road, offload boxes from the
truck onto the Isuzu, cargo destined for Windhoek belonging to a
third party, satisfies the
requirement. The Isuzu facilitated the
transportation of the boxes. When the police intervened the deal was
sealed and complete.
Unquestionably, the Isuzu and the cash were
sufficiently linked and played a direct role in the commission of an
offence to render
it an instrumentality.
The Schedule 1 offences that are relevant in this matter are theft,
whether under the common law or a statutory
provision and any offence
under section 36 or 37 of the General Law Amendment Act, 1955 (Act 62
of 1955) and any conspiracy, incitement
or attempt to commit an
offence referred to in this Schedule.
I am therefore
satisfied that the NDPP has made out a proper case of instrumentality
(on a balance of probabilities in respect)
of both the Isuzu and the
cash.
[27]
The Constitutional Court’s remarks in
Mohunram
[5]
pertaining
to proportionality are instructive:
“
[56]
Turning now to the question of proportionality, the purpose of the
proportionality enquiry is to determine whether the
grant of
forfeiture order would amount to an arbitrary deprivation of property
in contravention of s 25(1) of the Constitution.
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
constitutionally unacceptable) forfeiture, and courts must always be
sensitive to and on their guard against this.
[57] The
proper application of a proportionality analysis weighs the
forfeiture and, in particular, its effect 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
ch6 of POCA have been held to include:
·
removing the incentives for crime;
·
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.”
[28]
Nkabinde J, writing for the unanimous court in
Prophet
v National Director of Public Prosecutions
[6]
held:
“
[63]
In this case some of the relevant factors appear to be the following:
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 applicant; the nature
and use of the property; and the effect on
the applicant of the
forfeiture of the property.”
[29]
In
National
Director of Public Prosecutions v Botha NO and Another
[7]
Jafta
J insightfully remarked:
“
[110]
The purpose of forfeiture, namely, combating serious crimes
and
removing an incentive to commit such crimes, coupled with the fair
procedure prescribed by POCA refute the assertion that forfeiture
made in compliance with POCA is arbitrary.”
[30]
I have already found that the appellant did not raise the ‘innocent
owner’ defence.
I could not discern in the papers where the
appellant dealt with POCA or the aspect of proportionality. The
property in issue has
already been found to be an integral part to
the commission of the crime. The estimated amount of goods (125 boxes
of soup) found
in the respondent’s Isuzu was R87,000.00. The
uncontested current estimated value of the Isuzu according to Mr
Jacobus Smit,
guided by TransUnion Auto Dealers Guide is
approximately R95,200.00. I am of the view that granting forfeiture
of the vehicle under
these circumstances would not amount to an
arbitrary deprivation of property. I am also convinced that
forfeiture will discourage
the respondent from committing further
offences. The purpose of not incentivising crime will be served.
The appellant conceded
the lawfulness of the Upington Magistrate Order granted on 31 May
2018; Such an order has to be reviewed
or appealed before the
appellant can proceed with the application in terms of sections 38
and 48 of POCA.
[31]
The submission by Ms Van Dyk is that there was no averment by the
respondent in his papers that
despite the order by the Magistrate the
State failed to adhere to the order.
In
the premises the conclusion was arrived at by the trial court on its
own which resulted in an adverse finding against the NDPP.
Differently put, the trial court decided a dispute on an issue that
was not raised on the papers before the Court.
[32]
Ms van Dyk argued that NDPP was entitled to bring the s 38
application in terms of POCA and denies
having concealed any material
facts, more particularly, the order by the Upington Magistrate, when
the preservation application
was made. The Isuzu was not an exhibit
before the Court and the respondent could have applied for the
handing back of the vehicle
from the police. Counsel, for the
appellant invoked the unreported judgment in
NDPP
v Mamade
[8]
.
[33]
Counsel further submitted that the NDPP and the SAPS are separate
institutions governed by different
legislation and the Isuzu was in
possession of the police. This therefore meant that the NDPP was not
bound by the release order.
According to her the NDPP was not
prohibited from launching preservation proceedings in terms of POCA.
[34]
Leach J, then, in
National
Director of Public Prosecutions v Swart
[9]
faced
with a similar matter where the Magistrate, having sentenced the
accused, issued an order that the motor vehicle be returned
to the
respondent (Swart) and the NDPP decided to seek a forfeiture order,
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 (9) BCLR 970)
at paras
[14] – [17].)
[35]
Regard being had to the above authorities, the finding by the trial
court that the NDPP had first
to exhaust the remedy of a review or
appeal of the Magistrates’ order prior to launching the
proceedings in terms of POCA
is misconceived. A criminal conviction
is not a condition precedent to forfeiture
[10]
and the NDPP was entitled to pursue the POCA proceedings.
Accordingly, in the current circumstances, the magistrates order to
return the vehicle cannot and does not preclude the NDPP from
following a forfeiture process in respect of the relevant vehicle.
The only consideration being in the forfeiture proceedings, the
question of whether the vehicle was an instrumentality of or the
proceeds of crime as defined in POCA.
The respondent had a
bona fide
belief that he was entering into a lawful agreement
with Tsotetsi.
[36]
The surrounding circumstances of this matter, when assessed in
totality, do not support the contention
by the respondent of a
bona
fide
belief that he was entering a lawful agreement with
Tsotetsi. The respondent’s answering affidavit is replete with
either
denying the contents, noting the contents, or that he can
neither admit nor deny the allegations in the founding affidavit. It
is only where he is responding to the NDPP’s para 21.14 in
respect of which he admitted that the cash found in the Isuzu was
in
his possession and was meant to pay for the stock that was delivered
by the truck driver as per agreement.
[37]
The defence, if any, of the respondent must be found in his answering
affidavit. I have not discerned
any. The court
a
quo
seems to have accepted on face value or attached weight to the
contention of a
bona
fide
belief
raised on behalf of the respondent that he was entering into a lawful
agreement by pronouncing:
[11]
“
[46]
In the circumstances, and on the probabilities of this case, the
respondent could have been harbouring under the mistaken,
but bona
fide belief that he was concluding a legitimate business transaction
with the said Tsotetsi.”
[38]
The respondent could have furnished an
explanation in response to s 39(3) of POCA to protect his
interest after receiving the notice informing him that his property
was
at risk. The answering affidavit does not even furnish any
explanation as to how he
and Tsotetsi
knew each other, how this so-called ‘lawful’ transaction
was conceived and whether or not the respondent
has verified the
source of supply to determine its lawfulness. The laughable fraction
of the real value of the goods the respondent
and Tsotetsi agreed on
as the purchase price of the goods concerned. This argument by the
respondent lacks merit. The court
a quo
ought to have seen
through the ploy.
The long delay by the
NDPP in bringing the preservation application in terms of POCA
[39]
POCA’s legislation is aimed at combating crime, more
particularly, organised crime and
ensuring that no one benefits from
the incentives of crime. The Act acknowledges in its preamble that
there is a rapid growth of
organised crime, money laundering and
criminal gang activity nationally and internationally. Since
organised crime has internationally
been identified as an
international security threat, no time frame has been particularly
set for the launching of the POCA applications.
The only time frame
with a bearing in this application relates to the duration of
preservation of property orders which expires
90 days after the date
on which notice of the making of the order is published in the
Gazette
in terms of s 40 of POCA
.
Challenging the
appellant’s delay in launching the preservation application
does not take the matter any further and this
aspect should not
detain us.
The lawful owner of
those goods, namely, the truck, boxes of soup and the cellphone,
suffered no significant losses and or damages
[40]
The aforementioned finding by the court a quo is, in my view, missing
the point. The issue is
whether the Isuzu and the cash were
instrumentalities of an offence from the perspective of POCA. I have
already found that they
were. It is therefore immaterial on whether
the lawful owner suffered any damages or not.
The respondent was
prejudiced in the circumstances
[41]
Whether the respondent was prejudiced, is prejudiced, or not ought to
be assessed in terms of
POCA. The
onus
was on him to utilise
the applicable provisions of POCA to state his defence. The
respondent failed to state his defence appropriately
and in the
current circumstances, he cannot avoid the consequences of this
failure.
That reliance by the
appellant on s 50(4) of POCA is misplaced
[42]
Section 50(4) of POCA stipulates:
“
(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.”
[43]
The court
a
quo
found
that because there is an existing order by the Magistrate dated 31
May 2018 for the return of the vehicle to the respondent,
and since
the order was not taken on review or appeal, reliance by the NDPP on
s 50(4) is misplaced. In this regard, I have already
invoked the
Mamade
and
Swart
decisions.
Of significance though is that nothing bars the NDPP from pursuing
the relief in terms of POCA, even when there was no
criminal trial or
it was pending, withdrawn or struck off roll. To reiterate, the
remarks by Franklin AJ in
Mamade
[12]
that
the NPA and the SAPS derive their powers and duties from different
legislations and cannot simply be painted with the same
brush. Each
one accounts according to its legislation. The instructive remarks by
the Constitutional Court in
Botha
[13]
however
bear repeating:
“
[107]
POCA prescribes an elaborate procedure which must be followed
before
an order of forfeiture is made. In order to safeguard the rights in
the property concerned, section 48 obliges the NDPP
to give notice of
the application for forfeiture to every person who has recorded in
terms of section 39 that they have interest
in the property in
question. Once served with the papers, such person may appear at the
hearing of the application and oppose the
order of forfeiture or
request that the operation of the order should exclude her interest
in the property. She is entitled to
adduce evidence at the hearing of
the application.”
[44]
At the hearing of the forfeiture application before Moses AJ, no
evidence was adduced despite
the fact that the respondent was served
with a s 39 Notice to which there was no response or reaction. In
this instance, the NDPP
followed the correct elaborate POCA
procedure. I am also not persuaded that there was any information
that the NDPP did not disclose
to the Court in the preservation
application which could have had an impact on the outcome. There is
no basis for the trial court
to have ordered costs against the NDPP
in the forfeiture application.
[45]
What remains is the question of costs.
There is no reason why
costs cannot follow the result.
[46]
In the result, the following order is made:
1.
The appeal is upheld with costs.
2.
The order of the court
a
quo
is set aside and replaced with the
following order:
“
2.1
An order is hereby granted in terms of the provisions of s 50(1) of
the Prevention of Organised Crime Act 121 of
1998 (POCA), declaring
forfeit to the State the Isuzu KB 300 TDi Single Cab with
registration numbers and letters [....] and chassis
number
[....]356064 and engine number [....] (the Isuzu) and R15,500.00 (in
cash) held by the South African Police Service (SAPS)
under Calvinia
CAS 117/09/2018 (the property) which is currently subject to a
preservation of property order granted by this Court
on 16 August
2019.
2.2
In terms of s 50(6) of POCA, paragraph 2.5
below shall take effect 45 days after publication of a notice thereof
in the Government
Gazette.
2.3
The SAPS Commanding Officer, Upington shall
take care of the property, be and is hereby directed to continue
acting as such for
the purposes of this order.
2.4
Pending the taking effect of this order,
the property shall remain in the custody of the SAPS Commanding
Officer, Upington.
2.5
On the date on which this order takes
effect, to wit, 45 days after publication in the Government Gazette,
the SAPS Commanding Officer,
Upington shall hand the property to the
Senior Special Investigator, Jacobus Smit
,
of the applicant who shall:
a.
Assume control of the property and take it
into his custody;
b.
Sell the Isuzu at a best price either by
public auction or private treaty;
c.
Sign all documents necessary to effect the
sale, transfer and registration of the Isuzu; and
d.
Pay the proceeds thereof, less any
commission and incidental expenses occasioned by the sale as well as
the cash into the Criminal
Asset Recovery Account number [....]
established in terms of s 63 of POCA.
2.6
The applicant is directed to publish a
notice of this order in the Government Gazette as soon as it is
practicable.”
M.C.
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
Lever
J and Nxumalo J concur in the Judgment by Mamosebo J.
For
the appellant: Adv. L
van Dyk
Instructed
by:
The Office of the Director
Public Prosecutions
For
respondent:
Adv. A Jacobs
Instructed
by:
Kenneth Juries & Associates
[1]
121 of 1998
[2]
[2008] ZASCA 15
;
2008 (2) SACR 103
(SCA) at 110 para 17
[3]
2007 (2) SACR 145
(CC) at 165d – e
[4]
[2003] 3 All SA 102 (NC)
[5]
(Supra)
Page
168 paras 56 and 57
[6]
[2006] ZACC 17
;
2006 (2) SACR 525
(CC) at para 63
[7]
2020 (1) SACR 599
(CC) at para 110
[8]
NDPP v Ismael, Faziel Mamade Case No 08/18360, delivered on 2
December 2008
[9]
2005 (2) SACR 186
(SECLD) at 188f - g
[10]
National Director of Public Prosecutions v Seevnarayan
2004 (2) SACR
208
(SCA) at 226 para 20
[11]
At para 46
[12]
At para 11.2
[13]
At para 107