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[2022] ZAECMKHC 35
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National Director of Public Prosecutions v Kwetana (4034/2021) [2022] ZAECMKHC 35 (10 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Reportable
Case
no: 4034/2021
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC
Applicant
PROSECUTIONS
and
SIVILE
PATRICK KWETANA
Respondent
JUDGMENT
Govindjee
J
[1]
The
respondent is the owner of a Toyota Quantum vehicle (registration
number J … EC) and a trailer (registration number H
…
EC) (‘the property’). The property was used to transport
15 live sheep on 5 October 2021. It is subject to
a preservation
order in terms of s 38 of the Prevention of Organised Crime Act, 1998
(‘the Act’).
[1]
The
applicant (‘the NDPP’) claims that the property was used
as an instrumentality of the offence of stock theft and
seeks a
forfeiture order in terms of s 50 of the Act. The respondent denies
that the property is an instrumentality of an offence
referred to in
schedule 1 of the Act.
[2]
The respondent’s version of events
may be summarised as follows. He was telephoned by his brother, who
was in prison, and
informed that another person required
transportation ‘of goods’. The chairs of the Toyota
Quantum should be removed
for the goods to fit. A fellow inmate of
the respondent’s brother, one ‘Ex’ spoke to the
respondent on the telephone
on Sunday 3 October 2021. The respondent
was told about that inmate’s friend, Unathi. According to the
respondent’s
summary of that conversation, Unathi owned a
family farm at Cookhouse. The family was splitting their assets
because of a quarrel.
Ex would give the respondent’s number to
Unathi.
[3]
Unathi called the respondent twice on
Monday 4 October 2021 and a price was agreed for transportation of
the ‘goods’
on 5 October 2021. The respondent met Unathi
‘at his residence at Sheldon’ on that date ‘after
he had given me
directions to the family farm’. Aided by four
other men, Unathi loaded 15 live sheep onto the property, claiming
that he
was in possession of the necessary documentation for their
transportation. The respondent had no reason to disbelieve this
assertion
‘considering the information given to me by Ex as
well [as] Unathi’:
‘
At
all material times, I was running my business of transporting goods
per the agreement. I had no knowledge of any crime nor intention
of
committing any crime of stock theft. Unathi has since run away [and]
I have had no contact with him … I deny that the
property
concerned is an instrumentality of an offence … I have not
been able to earn an income since my property was taken.’
[4]
On the version of the NDPP, supported by
affidavits from a NDPP Senior Financial Investigator and South
African Police Service sergeant,
the property was seized following
information about possible stock theft in Cookhouse. The property
left Gqeberha, which is several
kilometres away from Cookhouse. It
was spotted travelling on a gravel road towards Draaihoek Farm, and
returning in the direction
of Gqeberha. The property was followed and
stopped. The front passenger jumped out of the vehicle as it was
slowing, ran away and
could not be apprehended. When the vehicle was
searched, it yielded 10 sheep inside the Quantum and five sheep
inside the trailer.
Some of the Quantum seats had been removed,
probably to adapt the vehicle to make space for the sheep. No removal
certificate to
possess or transport the sheep exists and no
satisfactory explanation was provided for possession or
transportation of the sheep.
[5]
It is common cause that the sheep did not
belong to any of the occupants of the Quantum and that stock theft
was committed. Respondent
concedes, through the heads of argument of
his counsel, that the most probable inference to be drawn is that
Unathi either had
no permit or had a false permit in his possession.
His defence is summarised as follows:
a.
He was not aware of the true intentions of
Unathi, which was to use his property to commit stock theft;
b.
He had no knowledge ‘or did not have
a belief of a reasonable possibility’ of a commission of an
offence and the use
of his property as an instrumentality of an
offence. In addition to the fraudulent motives of Unathi, the people
with whom the
respondent had trust relationships were instrumental in
developing a business relationship between the respondent and
Unathi’.
[6]
The
criminal case against the respondent flowing from this incident has
been provisionally withdrawn.
[2]
Applicable
law
[7]
Part 3 of POCA incorporates both section 48
and section 50 of the Act, and is headed ‘Forfeiture of
Property’:
‘
48.
Application for 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 …
(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…
50.
Making of forfeiture order.
(1)
The High Court shall,
[3]
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;
(b)
is the proceeds of unlawful activities; or
(c)
is property associated with terrorist and related activities.’
[8]
It
is convenient to commence the analysis which follows by focusing on
the question related to the property as an ‘instrumentality
of
an offence’. Various issues must be considered as part of this
enquiry, including the nature of the offence relied upon
by the
applicant and whether that offence is referred to in Schedule 1 of
the Act.
[4]
Is
the property an ‘instrumentality of an offence’?
[5]
[9]
‘
Instrumentality
of an offence’ is defined to mean ‘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.’
[6]
[10]
In
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd and
other cases
,
[7]
the Supreme Court of Appeal considered the meaning of the phrase. It
confirmed that forfeiture of the instrumentalities used in
crime is
not conviction-based, and may be invoked even when there is no
prosecution.
[8]
Chapter 6
forfeiture is permitted where it is established on a balance of
probabilities that property has been used to commit an
offence, even
when no criminal proceedings are pending.
[9]
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…’
[10]
As such, the guilt or wrongdoing of the owners or possessors of
property is, therefore, not primarily relevant to the
proceedings.
[11]
[11]
As
indicated above, the definition of ‘instrumentality of an
offence’ embraces all property ‘which is concerned
in the
commission or suspected commission’ of an offence. But a wide,
literal interpretation cannot be countenanced if it
would result in
unintended consequences, bearing in mind that the remedial objectives
of chapter 6 operates as a punishment.
[12]
The reference in the Act’s preamble 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.
[13]
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…’
[14]
[12]
In
Prophet
v National Director of Public Prosecutions
,
[15]
the Supreme Court of Appeal had regard to the following factors in
measuring the strength and extent of the relationship between
the
property sought to be forfeited and the offence, and in assessing
whether the property was an instrumentality of an 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 its illegal use was an isolated event or had
been repeated; and (e) 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).
[16]
[13]
In
S
v Bissessue
,
[17]
a magistrate declared a motor vehicle and fishing rods used in
fishing without a licence to be forfeited to the state. This was
in
terms of an ordinance that, in addition to a criminal penalty,
required the court to declare any article used ‘in, for
the
purpose of, or in connection with the commission of the offence’
forfeit. On appeal, the forfeiture of the fishing rods
was upheld,
but that of the vehicle was set aside. The Court held that ‘to
qualify for forfeiture the thing must play a part,
in a reasonably
direct sense, in those acts which constitute the
actual
commission
of
the offence in question’. The SCA in
Cook
Properties
,
having considered this decision, concluded that ‘the
same…applies to “instrumentality of an offence”’.
[18]
The determining question, in each case, 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.
[19]
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’.
[20]
[14]
It
is, therefore, apparent that the focus must be on the property,
rather than the individual. That criminal charges have been
provisionally withdrawn against the respondent is of no assistance at
this stage of the enquiry. As indicated, property may be forfeited
even where no charge is pending. The focus is on the role played by
the property in ‘the commission
or
suspected commission
of
an offence’.
[21]
There
should be a relationship of direct functionality between what is used
and what is achieved.
[15]
In
this instance, plans were made, via the respondent’s brother
and another inmate, to contact the respondent. A price and
date were
negotiated and eventually agreed. The property was modified and used
to transport 15 live sheep. The respondent travelled
several
kilometres to the location and that travel would have taken some
time. It is common cause that stock theft was perpetrated.
That would
not have been possible in the way it occurred without the property.
The vehicle and trailer were directly engaged in
achieving the
removal of the sheep from Draaihoek Farm. Although it may be accepted
this was an isolated event and the property
was not acquired or
maintained for this purpose, the totality of factors supports a
finding that the property was an instrumentality
of an offence. The
commission of the offence was only made possible courtesy of the
property. Its involvement, far from incidental,
was substantial and
meaningful and, on a balance of probabilities, sufficient for
purposes of this stage of the test. The next
question to be
considered relates to proportionality.
[22]
The
proportionality test
[16]
Criminal
activities present a danger to the social order. The Act contains
mechanisms to ensure that property used in the commission
of an
offence is forfeited to the state. In this case, the chapter six
mechanisms are relevant. Unrestrained application of these
measures
would, however, contravene the constitutional protection against
arbitrary deprivation of property.
[23]
[17]
It
has been held that civil forfeiture rests on the legal fiction that
the property, and not the owner, has contravened the law.
[24]
Once property is considered to be an instrumentality of an offence,
the proportionality enquiry requires weighing the severity
of the
interference of individual rights to property against the extent to
which the property was used for the purposes of the
commission of the
offence, bearing in mind the nature of the offence.
[25]
This is a requirement based in equitability and is considered to be a
constitutional imperative.
[26]
The precise linguistic formulation of the test is less important.
[27]
A factor-based approach has been applied, involving careful
consideration and weighing of matters such as the following:
[28]
a.
The relationship between the purpose of the
deprivation and the person whose property is affected;
b.
The relationship between the purpose of the
deprivation, the nature of the property affected and the extent of
the deprivation;
c.
A more compelling purpose is required where
the property rights involved are the ownership of land or corporeal
movables;
d.
The reasons should be more compelling as
more incidents of ownership are affected;
e.
Depending on the nature and extent of the
rights affected, the test is one that comprises elements of
rationality and proportionality,
moving closer towards
proportionality as the effects increase; and
f.
The inquiry takes full account of the
relevant circumstances of each case.
[18]
The
court’s task is to weigh the severity of the interference with
individual rights to property against the extent to which
the
property was used for the purposes of the commission of the offence,
bearing in mind the nature of the offence.
[29]
This involves consideration of a range of factors, including whether
the property was integral to the commission of the crime and
whether
forfeiture would prevent the further commission of the offence. The
court should also consider whether the respondent qualifies
as an
‘innocent owner’, the nature and use of the property and
the effect on the respondent of the forfeiture of the
property.
[30]
[19]
The
remarks of Moseneke DCJ in
Mohunram
,
are particularly insightful on the proper exercise of this task:
[31]
‘
In
my view, it must follow that, in deciding whether or not forfeiture
of property would be proportionate, the question whether
the
instrumentality of the offence is sufficiently connected to the main
purpose of POCA must be considered. I join Sachs J in
emphasising
that the more remote the offence in issue is to the primary purpose
of POCA, the more likely it is that forfeiture
of the instrumentality
of the crime is disproportionate. In other words, when ordinary crime
is in issue, the sharp question should
be asked whether it is a crime
that renders conventional criminal penalties inadequate. Is it a
crime that requires extraordinary
measures for its detection,
prosecution and prevention? Is it a crime that warrants the
extraordinary measures akin to those appropriate
to organised crime
as envisaged in POCA? Is it a crime that has some rational link,
however tenuous, with racketeering, money laundering
and criminal
gang activities? If the answers to these questions were in the
negative, this would be an important indication that
forfeiture may
be disproportionate.’
[20]
Forfeiture
must be weighed against the purpose it serves.
[32]
In
Mohamed
,
the purpose of civil forfeiture was linked to removal of the
incentive for crime, not to punish the offender.
[33]
In addition to considering the association between the property and
the crime, whether the forfeiture will prevent further wrongdoing,
the nature and use of the property and the effect of forfeiture on
the owner, additional and countervailing considerations apply
in
cases of forfeiture in terms of the Act:
[34]
‘
The
nature of the crime must be probed keeping in mind the predominant
purpose of POCA. This is a self-evident proposition. The
forfeiture
must advance the purpose that POCA proclaims. Otherwise, the
forfeiture, being the means, will be misaligned with the
predominant
ends pursued by POCA.’
[21]
Civil
asset forfeiture must be properly related to the purpose of removing
the incentives for crime, considering whether the forfeiture
will
serve as adequate deterrence to the offender and to the broader
community.
[35]
The purpose of
the legislation is primarily deterrent. In relation to the
instrumentalities of an offence, it seeks to prevent
people from
using their property or allowing it to be used for the commission of
offences:
[36]
‘
The
closer one gets to the prevention of organised crime, which is the
primary rationale underlying POCA, the greater the importance
of the
purpose becomes … One may say in principle, then, that the
closer the criminal activities are to the primary objectives
of POCA,
the more readily should a court grant a forfeiture order. Conversely,
the more remote the activities are from these objectives,
the more
compelling must the circumstances be to make such an order
appropriate.’
[37]
[22]
The
point made by the judgments of Sachs J and Moseneke DCJ in
Mohunram
is that the purpose of deterrence promoted by the Act, in relation to
an instrumentality of an offence, cannot legitimate the forfeiture
of
every instrumentality of an offence.
[38]
This is because individuals are not to be used ‘… in an
instrumental manner as examples to others if the deterrence
is set at
levels beyond what is fair and just to those individuals’.
[39]
The proportionality enquiry, applied in this sense, serves to protect
the human dignity of the property owner.
[40]
The extent to which the forfeiture ‘manifestly’ is
directed towards preventing organised crime is therefore ‘highly
relevant’ and the disjuncture between the basic purpose of the
Act and its effect on an individual in the position of the
respondent
should not be too great.
[41]
The Act was not intended to provide either a substitute for, or a
top-up of, the usual forms of law enforcement.
[42]
Sachs J cited the following extract from the judgment of Nugent JA in
the SCA decision in
Van
Staden
(in the context of possible forfeiture of a motor vehicle because of
the offence of drunken driving) to emphasise the point:
[43]
‘
Incursions
upon conventional liberties that are justified by the particular
difficulties encountered in the detection and successful
prosecution
of organised crime are not similarly justified in cases of ordinary
crime that do not present those difficulties. I
do not think it is
permissible to look to one threat that the Act aims at combating (the
threat posed by organised crime) in order
to justify its application
in relation to a quite different threat (the threat that is posed,
for example, by drunken driving)
that does not present the same
challenges. It must be borne in mind that drunken driving, which does
not ordinarily result from
organised illicit activity, and presents
no special difficulties to detect and prosecute, can attract
substantial penalties, and
the ordinary criminal law ought to be the
first port of call to combat the evil. For the Act exists to
supplement criminal remedies
in appropriate cases and not merely as a
more convenient substitute.’
Is
forfeiture proportional?
[23]
It
is incumbent upon the applicant to place adequate facts before the
court to satisfy it that the forfeiture would be constitutionally
proportionate. It has been authoritatively established that it bears
the onus in this regard.
[44]
By contrast, it failed to deal with that aspect in its founding
papers and somehow contrived to conclude, in reply, that ‘the
constitutional imperative of proportionality finds no application’.
As a result, it approached the matter on the basis that
a forfeiture
order would be appropriate merely because the property was an
instrumentality. As discussed, various factors require
consideration
in determining whether forfeiture would be proportional.
[24]
The
property in this instance was not incidental to the offence, a factor
emphasised by the Constitutional Court in
Prophet
at this stage of the enquiry.
[45]
It was ‘employed’ to facilitate its commission.
[46]
It must also be emphasised that the offence involved was stock theft,
a prevalent issue in this province and one that negatively
affects
the rights of farmers. It has been highlighted that the Act serves
various societal ends, also to deter persons from using
or allowing
their property to be used in crime, and to eliminate some of the ways
in which the crime may be committed.
[47]
Given the use of the property in this instance, it may be accepted
that forfeiture would prevent the further commission of the
offence
through this movable property. Naturally it will not prevent the
further commission of stock theft in general in the region.
[25]
On his own version, the respondent appears
to have accepted, at face value, a claim by Unathi, a person he had
just met, that documentation
for the sheep was available and in
order. Whatever enquiries were made, the respondent did not consider
it necessary to require
Unathi to produce the documentation. He
certainly did not inspect it. Instead, he proceeded to permit his
property, which had been
modified for this purpose prior to the time,
to be used to transport fifteen sheep from a farm after they had been
loaded by five
persons unknown to him. In essence, he proceeded in
this fashion on the strength of what was said to him telephonically
by a friend
of an acquaintance of his brother. This after he had
removed seats of his vehicle at the telephonic request of his
brother, who
was in prison at the time. It appears as if this
instruction was followed blindly. While the respondent does not
indicate that
he enquired as to the reason for having to remove seats
from the vehicle, the probabilities are such that it must be accepted
that
his brother knew what ‘goods’ were to be transported
and communicated this to him so that he could prepare for the
expedition.
[26]
When
he met Unathi, he appears not to have made any further enquiries
about the circumstances surrounding the alleged division of
assets.
For example, who was the actual owner of the farm? If Unathi owned
the farm, on his version, as the respondent’s
affidavit
suggests, why were the sheep being transported somewhere else? If he
did not own the farm, what was the position in respect
of any other
movable property? Such details are notably absent from the
respondent’s version. There is also no explanation
whether he
verified with Unathi telephonically that sheep would be transported.
The inclusion of the trailer suggests that he already
knew the
livestock to be transported as well as their quantity, prior to even
speaking to Unathi. That being the case, there is
no explanation as
to why he only discussed the issue of documentation for the sheep at
the time they were loaded, rather than during
one of his telephone
calls with Unathi. The statement that ‘I had no reason to
believe he did not have the necessary documentation,
considering the
information given to me by Ex as well Unathi’ does not
withstand scrutiny when considering these circumstances
in their
entirety.
[48]
Rather than
exercising stewardship and being vigilant about ensuring that his
property was not used to advance criminal conduct,
the respondent was
supine.
[49]
The conclusion in
this regard is that the respondent does not qualify as an ‘innocent
owner’ as I understand the application
of that notion and to
the extent that this is relevant.
[50]
But, courtesy of the majority judgments in
Mohunram
,
read with the majority judgment in
Brooks
,
that is not the end of the enquiry.
[27]
Section
25 of the Constitution must be interpreted and applied in a manner
that balances society’s desire to ensure that private
property
serves the public, on the one hand, with the need to protect
ownership of private property itself, on the other.
[51]
This is because the effect of civil forfeiture of assets may be
draconian.
[52]
It must also be
considered, as part of the proportionality enquiry, that the property
is used for lawful purposes and income generation,
even while there
may be a suspicion that the property was utilised unlawfully on one
occasion in respect of the transportation
of the sheep.
[53]
In
Braun
,
the fact that the property was only used on two occasions for
unlawful activities, together with other factors including that
the
activities were ‘far removed from the principal purpose of
POCA’, contributed to a conclusion that forfeiture would
be
disproportionate.
[54]
It is
also significant that it may be accepted that the property is
typically used for legitimate ends.
[55]
[28]
Forfeiting
the property, particularly the vehicle, will impact directly on the
respondent’s ability to earn an income and
permanently deprive
him of an asset that has significant value to him and, by extension,
his child. While it may be unfortunate
that no details have been
provided by the respondent in this regard, it must be accepted that
his only form of income generation
is tied to the property. The
papers do reflect that he uses the income derived from the property
to care for his 13-year-old son.
The constitutional rights of
children and the paramount importance of their best interests remains
a factor to be considered in
such instances, and as part of the
proportionality enquiry.
[56]
There was no attempt to adduce any evidence that forfeiture would not
be excessive given the respondent’s financial obligations
to
his child and his use of the property for that purpose. Such
omissions have been deprecated, the SCA concluding that the applicant
bears ‘no less a responsibility’ than parents when
parents fail to adequately invoke the interests of their children
in
forfeiture proceedings.
[57]
That the respondent may have somehow managed to provide for the child
despite the property being subject to a preservation order
for some
period does not take the matter further. It remains the duty of the
court, as upper guardian of all children, not to neglect
the specific
interests of children in these matters.
[58]
[29]
While
the value of the property is noted as being in excess of R330 000,
this is not to suggest that the respondent would ‘lose’
the full value of the property in the event of forfeiture. The
decision in
Mohunram
explains that his loss depends on various factors, including the
amount that has been paid off and any amount owing on the
property.
[59]
No information
has been placed before the court in this regard.
[30]
The question remains whether ‘forfeiture
of the whole property would be disproportionate to the seriousness of
the crimes
committed and the benefits derived from those crimes’.
While stock theft is a serious issue, other than the agreed payment
for the transportation of the sheep, there is no evidence that the
respondent stood to benefit at all from his actions. This is
a
relevant consideration as part of the proportionality enquiry.
[31]
It
may be accepted in the applicant’s favour that stock theft in
certain circumstances may be highly organised and that its
prevention
might be closely linked to the predominant purposes of the Act. There
is, however, little support for speculation that
the instrumentality
of the offence in this instance is sufficiently connected. It
appears, on a balance of probabilities, to be
on a more remote part
of the spectrum in respect of its correlation with the Act, so that
more compelling circumstances are required
to justify forfeiture. By
contrast, the probabilities favour treatment of the suspected offence
as an ordinary criminal offence,
[60]
policed during normal operations and not requiring extraordinary
measures for its detection, prosecution and prevention. As per
the
majority in
Mohunram
,
the suspected offence is some distance from the ‘heartland of
organised crime’, for which the ordinary criminal penalties,
including for driving, conveying or transporting stock along public
roads, could have been pursued.
[61]
The invocation of the Act in these circumstances amounts to a form of
substitution for normal criminal processes. Taken together,
these are
all important indicators that forfeiture might be disproportionate.
That being the case, the applicant’s failure
to properly
address this stage of the enquiry in its papers, and bearing in mind
its onus to do so, is unfortunate.
[32]
It follows that I am of the view that
permanently removing the property from the respondent in this
instance would amount to a heavy-handed
punishment of a suspected
offender in circumstances where any proven offence could be
prosecuted in the ordinary fashion. It cannot
be said that the
forfeiture in this instance would, on a balance of probabilities,
advance the purpose of the Act. The predominant
ends pursued by the
Act would not be advanced by forfeiture of the property, or by using
the respondent’s conduct to deter
other persons similarly
situated. Forfeiture has not been shown to be manifestly directed to
the prevention of organised crime
in these circumstanes.
[33]
This
outcome may be disheartening to the applicant in its quest to fulfil
the mandate afforded to it by the Act. The concluding
remarks of
Sachs J in
Mohunram
are
apposite and worth repeating in full:
[62]
‘
I
should add that nothing stated above should be taken as suggesting a
view favouring an interpretation that would reduce the capacity
of
the [applicant] to fulfil the mandate given to it by POCA. On the
contrary, if it is to accomplish the important functions attributed
to it, it should not unduly disperse the resources it has at its
command. Its manifest function as defined by statute is to serve
as a
strongly-empowered law enforcement agency going after powerful crooks
and their multitude of covert or overt subalterns. The
danger exists
that if the [applicant] spreads its net too widely so as to catch the
small fry, it will make it easier for the big
fish and their
surrounding shoal of predators to elude the law. This would frustrate
rather than further the objectives of POCA.’
[34]
It
must be reiterated that this judgment does not suggest that all
instances of stock taking may be painted with the same brush.
In
Mjeza
,
for example, the court noted the difficulties of combating stock
theft and that a specialised unit of the South African Police
Service
had been established for purposes of proper investigation. It also
commented on various syndicates in operation in the
Northern Cape
Province.
[63]
As indicated,
similar detailed treatment of such factors in the context of a
proportionality enquiry are not evident in the applicant’s
papers. Still, it must be accepted that when stock theft is
perpetrated through motor vehicles and trailers ordinarily used as
taxis in circumstances where there is a rational link with criminal
gang activity, for example, forfeiture might well be proportionate.
Similarly, in
Brooks
,
Ponnan JA highlighted that each forfeiture proceeding is based on
unique circumstances. Forfeiture is a strong weapon in the state’s
efforts to combat organised crime. There are undoubtedly seasoned
criminals who specialise in cunning forms of deception to insulate
their property from forfeiture. Nonetheless, given the likely impact
of forfeiture on persons in the position of the respondent,
and their
families, this power may only be wielded where it is appropriate to
do so. This requires the applicant to demonstrate
that forfeiture of
an instrumentality of an offence is proportionate to the predominant
purpose of the Act, considering the various
relevant factors and
circumstances at play.
[64]
Order
[35]
The following order will issue:
1.
The application for forfeiture of the
respondent’s white Toyota Quantum (registration number J …
EC) and trailer (registration
number H …) (‘the
property’), presently subject to a preservation order granted
on 14 December 2021, is dismissed
with costs.
2.
The preservation order granted on 14
December 2021 is hereby set aside.
3.
The applicant is to return the respondent’s
property, referred to in paragraph 1, to him forthwith.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard: 09
June 2022
Delivered:10
June 2022
Applicant’s
Attorney:
Mr M.Wolmarans
Dullabh Attorneys
Makhanda
Instructed
by :
State Attorney
East London
Email:MicBotha@justice.gov.za
Respondent’s
Counsel:
Adv L. Ntlokwana
Equity House Chambers
Makhanda
Instructed
by :
Sylvester Jewell
Makhanda
Email:admin@scjandco.co.za
[1]
Act
121 of 1998.
[2]
The
late filing of the respondent’s affidavit in support of his
opposition to forfeiture was condoned and the filing of
supplementary papers regarding the status of criminal proceedings
was permitted by way of a ruling during the hearing of the
matter.
[3]
The
Constitutional Court has read down the word ‘shall’ to
be interpreted as ‘may’:
Mohunram
and Another v National Director of Public Prosecutions and Another
(Law Review Project as Amicus Curiae)
[2007]
ZACC 4
;
2007 (4) SA 222
(CC) (‘
Mohunram
’)
para 121.
[4]
See
National
Director of Public Prosecutions v Engels
2005 (3) SA 109
(C) at para 16.
[5]
This
summary, including many of the footnotes, is drawn from
National
Director of Public Prosecutions v Gallant
[2021] ZAECPEHC 51;
2022 (1) SACR 189
(ECP) paras 7-14.
[6]
S
1 of the Act.
[7]
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd;
National Director of Public Prosecutions v 37 Gillespie
Street
Durban (Pty) Ltd and another; National Director of Public
Prosecutions v Seevnarayan
2004
(2) SACR 208
(SCA)
(‘
Cook
Properties’
)
.
[8]
Para
7. The Act provides that the validity of a forfeiture order is not
affected by the outcome of criminal proceedings, or of
an
investigation with a view to instituting such proceedings, in
respect of an offence with which the property concerned is in
some
way associated: s 50(4).
[9]
Para
10.
[10]
National
Director of Public Prosecutions and Another v Mohamed NO and Others
[2002]
ZACC 9
;
2002 (2) SACR 196
(CC);
2002 (4) SA 843
(CC) (‘
Mohamed
’)
para 17.
The
aspects of the various judgments cited pertaining to property linked
to
proceeds
of crime
are irrelevant for present purposes. In
Prophet
v National Director of Public Prosecutions
2007 (6) SA 169
(CC) (‘
Prophet
(CC)’),
the Constitutional Court held that civil forfeiture rests on the
‘legal fiction that the property and not
the owner has
contravened the law’ (at para 58).
[11]
Ibid.
[12]
See
the examples cited in
Cook
Properties
supra para 12. The other reason for a restrictive interpretation
relates to the constitutional prohibition of arbitrary deprivation
of property:
Cook
Properties
supra para 15.
[13]
Mohamed
supra
para 17 as cited in
Cook
Properties
supra para 14.
[14]
Cook
Properties
supra
para 31.
[15]
Prophet
v National Director of Public Prosecutions
2006
(1) SA 38
(SCA) (‘
Prophet
(SCA)’)
para 27, as cited in
Prophet
(CC)
para 22. The Constitutional Court upheld the findings of the Supreme
Court of Appeal in respect of the property in question
being an
‘instrumentality of an offence’.
[16]
Prophet
(SCA)
at par 27, with reference to
United
States v Chandler
[1994] USCA4 2075
;
36 F 3d 358
(4
th
Cir, 1994).
[17]
S v
Bissessue
[1980]
(1) SA 228
(N), cited with approval in
S
v Mjezu and Another
1982
(2) PH H164 (C) and
Cook
Properties
supra
at para 32.
Cf
S v Maswanganyi and Another
1989 (2) SA 759
(O), where it was held that a motor vehicle played a
reasonably direct part in the offence of possession for sale of
dagga. In
that case the vehicle had been used to acquire possession
of the dagga for sale and was subsequently involved in arrangements
for its disposal (at 764). The full court in
Bissessue
held (at 230 C-E) that ‘On the facts of this case it cannot be
said that the motor car was used in this sense for fishing
as one
might, for instance, perhaps have concluded if its headlights had
been used to attract fish at night as part of the fishing
operation.
The motor car was in fact used ‘for the purpose of’ the
journey from the place of departure to the Chelmsford
Dam and the
fishing was a subsequent and unrelated act.’
[18]
Ibid.
[19]
Cook
Properties
supra
para 32.
[20]
NDPP
v Geyser
[2008]
ZASCA 15
;
2008 (2) SACR 103
(SCA) para 17.
[21]
Section
1(1) of the Act (own emphasis).
[22]
See
Prophet
(CC)
supra para 57 et seq.
[23]
Prophet
(CC)
supra para 61.
[24]
Prophet
(CC)
supra para 58.
[25]
Ibid.
[26]
Mohunram
supra
para 130. In the language of Sachs J in
Mohunram
,
it is a ‘governing principle imposing limits on how the powers
granted under POCA may be exercised’: para 142. As
such, there
is no requirement that the respondent should place facts before the
court in order for proportionality to be considered.
The burden is
on the applicant to do so for this question of law to be weighed.
Also see
Brooks
and Another v National Director of Public Prosecutions
[2017]
2 All SA 690
(SCA) (‘
Brooks
’)
para 75.
[27]
First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service and Another; First National Bank of SA
Ltd t/a
Wesbank v Minister of Finance (FNB)
[2002] ZACC 5
;
2002
(4) SA 768
(CC);
2002 (7) BCLR 702
(CC) (‘
Wesbank
’)
para 98. The description of Sachs J in
Mohunram
is again useful (para 142): ‘… what proportionality
loses in categorical determinacy it makes up for in jurisprudential
flexibility and constitutional aptness.’
[28]
Prophet
(CC)
supra para 62.
[29]
Prophet
(CC)
supra para 58.
[30]
It
has been held that a more compelling purpose would have to be
established to justify forfeiture in cases where the property
in
question is ownership of land or a corporeal movable:
Wesbank
supra para 100;
National
Director of Public Prosecutions v Braun and Another
2009 (6) SA 501
(WCC) (‘
Braun
’)
para 60.
[31]
Mohunram
supra
para 126. An offence that results in a criminal conviction coupled
with possible confiscation of property could trigger
a double
punishment, which would be an additional consideration in certain
instances: para 127. It must be noted that the judgment
of Sachs J
assumes that there is no obligatory jurisdictional requirement that
the instrument of an offence be shown to have
a connection with
organized crime, and that once a criminal offence is literally
covered by the schedule, and the property concerned
is proved to be
an instrument in its commission, a forfeiture order in terms
of
chapter 6 becomes permissible:
Mohunram
supra
para 140. That is the same approach adopted in this judgment.
[32]
Mohunram
supra
para 123.
[33]
As
cited in
Mohunram
supra para 133.
[34]
Mohunram
supra
paras 123-125, citing
Mohamed
supra on the purposes of the Act. Also see the judgment of Sachs J
in
Mohunram
at
para 144. Also see the majority judgment of Ponnan JA in
Brooks
supra para 64.
[35]
Mohunram
supra
para 134.
[36]
Mohunram
supra
para 143.
[37]
Mohunram
supra
paras 143, 145. Any determination of proportionality should also
take into account the extent to which the common law and
statutes
prove inadequate in the circumstances.
[38]
Mohunram
supra
para 146.
[39]
Mohunram
supra
para 146.
[40]
Ibid.
[41]
Ibid.
[42]
Mohunram
supra
para 152.
[43]
Mohunram
supra
para 153 citing
National
Director of Public Prosecutions v Van Staden and Others
[2006] ZASCA 107
; [2006] SCA 135 (RSA);
[2007] 2 All SA 1
(SCA).
[44]
Brooks
supra
para 78.
[45]
Prophet
(CC)
supra para 67.
[46]
See
the minority judgment of Van Heerden J in
Mohunram
supra
para 49.
[47]
Mohunram
ibid
para 57.
[48]
The
judgment of Van Heerden J in
Mohunrum
notes that an owner faced with a prima facie case established by the
applicant would in the usual course be well-advised to place
this
material before the court, particularly because some of the factual
material relevant to the proportionality analysis will
often be
peculiarly within their knowledge:
Mohunrum
supra
para 75.
[49]
Cook
Properties
supra
para 58. The provisions of s 1(2) and s 1(3) of the Act support
these conclusions: a person has knowledge of a fact, in
terms of the
Act, also when the court is satisfied that the person believes that
there is a reasonable possibility of the existence
of that fact and
he or she fails to obtain information to confirm the existence of
that fact. A person ought reasonably to have
known or suspected a
fact if the conclusions that he or she ought to have reached are
those which would have been reached by
a reasonably diligent and
vigilant person having both the general knowledge, skill, training
and experience that may reasonably
be expected of a person in his or
her position and the general knowledge, skill, training and
experience that he or she in fact
has.
[50]
Leaving aside the significance of an ‘innocent owner’ as
part of the proportionality enquiry, it must be accepted
that the
cases refer to this notion as a self-standing defence at another,
‘tightly intertwined’ stage of the proceedings
when
forfeiture is claimed:
Mohamed
supra
para 18 as cited in
Cook
Properties
supra para 11;
Cook
Properties
supra para 17. It must be noted, with respect, that this reading of
the Act appears to overlook the wording of s 48(4)
(a)
and
(b)
:
a person who enters an appearance in terms of s 39(3) may appear at
the application for a forfeiture order ‘to oppose
the making
of the order;
or
to apply for an order excluding his or her interest in that property
from the operation of the order …’ The opposition
to
the ‘making of [a] forfeiture order’ is dealt with in s
50, as described by that section’s heading. Section
52 deals
with the other option described (leaving aside the further option of
variation for present purposes), again as reflected
in the section
heading: ‘Exclusion of interests in property’. It is in
that context that s 52(2A) explains the test
for exclusion.
This
Court is bound by the interpretation given by the SCA in
Cook
Properties
in respect of the interplay between section 50 and 52, and the
possibility of an application for exclusion of a person’s
interest in property from the operation of a forfeiture order,
seemingly even in circumstances where this amounts to the same
as
opposing the making of the order. The SCA did, however, note that
‘this section burdens the owner with an onus to prove
certain
facts on a balance of probabilities
before
the Court can make an
exclusionary
order’
(own emphasis): para 24. Importantly, the SCA also noted that
Cook
Properties
proceeded
‘on a narrow reading of “instrumentality of an offence”.
As a result these cases do not require us
to give a determinative
reading of the second-stage provisions…we therefore express
no final views on the interpretation
of s 52.’: at paras 25,
26. Notably, s 48(4) provides for various options for a person
who entered an appearance
in terms of s 39(3): ‘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…’
(own
emphasis). S 39(3) also uses ‘or’ in the same manner.
The ‘or’ seems to confirm that opposition
to a
forfeiture order is distinct from an application for exclusion,
which would be appropriate in circumstances where, for example,
property subject to forfeiture is co-owned, so that a completely
innocent party, such as a spouse married in community of property
to
a wrongdoer, applies for an order excluding her property from a
forfeiture order. For an illustration of the analytical effect
of
equating ordinary ‘opposition’ to an application for
exclusion, see
National
Director of Public Prosecutions v Mpahlwa
[2020]
ZAECMHC 18. Also see
Brooks
supra
para 17, for an example of the second phase of the enquiry being
identified as relating to ‘exclusion’, as opposed
to
‘proportionality’. The facts in
Brooks
made
an ‘exclusion’ application apposite, the second
appellant being an ‘innocent’ spouse. The reference
in s
52
(a)
to an ‘application under section 48(3)’ appears to be
erroneous, and should in all likelihood refer to s 48(4)
(b)
.
Interestingly, the later Constitutional Court decision in
Prophet
made only a single reference to
Mohamed
and, following consideration of whether the property was an
instrumentality of an offence, proceeded to consider
proportionality.
Section 52 was irrelevant to the discussion and not
mentioned in the judgment.
[51]
Mkontwana
v Nelson Mandela Metropolitan Municipality and Another; Bissett and
Others v Buffalo City Municipality and Others; Transfer
Rights
Action Campaign and Others v MEC for Local Government & Housing
in the Province of Gauteng and Others (KwaZulu-Natal
Law Society and
Msunduzi Municipality as Amici Curiae)
2005
(1) SA 530
(CC) paras 81-82, cited with approval in
Mohunram
supra
paras 59, 60.
[52]
See
the judgment of Moseneke DCJ in
Mohunram
supra
para 118. The state, for example, is not require to show that the
owner has been convicted of the offence or that the owner
performed
an unlawful act with a criminal intent. The result is a serious
incursion into ‘well-entrenched civil protections
particularly
those against arbitrary and excessive punishment and against
arbitrary confiscation of property’: para 120.
[53]
Mohunram
supra
para 54.
[54]
Braun
supra paras 62, 64.
[55]
Mohunram
supra
para 136.
[56]
Brooks
supra
paras 70, 72, also noting that an appointment of a curator might be
appropriate in certain instances: para 74.
[57]
Brooks
supra
para 78.
[58]
Ibid.
[59]
Mohunram
supra
para 89. It must be noted that the Constitutional Court did add that
it is not
necessary
for a court, in considering proportionality, to undertake a precise
financial exercise on all occasions: para 92.
[60]
S
14 of the Stock Theft Act, 1959 (Act 57 of 1959) provides for
various forms of punishment, depending upon the court in which
the
matter is prosecuted, including a fine or period of imprisonment not
exceeding three or fifteen years. Also see the analogous
facts of
National
Director of Public Prosecutions
v
Gigaba
(unreported judgment of the Northern Cape Division) (Case No.
2143/2009) as cited in NC Ndzengu and JC von Bonde ‘A critical
assessment of the introduction of proportional analysis by the South
African courts in civil-forfeiture jurisprudence’
Obiter
(2011) 83-107 at p104. In that instance, Williams J dismissed the
application on the basis that the respondent was an unemployed
first
offender and had to use a Mitsubishi Colt vehicle, which had not
been used criminally in the past, to earn a living for
his family.
There was also no evidence that the vehicle would be used in the
future to facilitate the commission of crime. The
vehicle had been
in police custody for almost a year, resulting in hardship to the
family, the sheep had been returned to the
complainant and,
notwithstanding the fact that criminal processes were to take their
course, the deterrent effect of civil forfeiture
had already been
served.
[61]
Section
8 of the Stock Theft Act, 1959 (Act 57 of 1959).
[62]
Mohunram
supra
para 155.
[63]
National
Director of Public Prosecutions v Mjeza
[2016]
ZANCHC 53
para 37.
[64]
Brooks
supra
para 69.