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[2022] ZAECMKHC 45
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National Director of Public Prosecutions In re: R6287 in cash(the property) seized by the South African Police Service (the SAPS) in Aliwal North on 7 November 2019 (508/2020) [2022] ZAECMKHC 45 (26 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 508/2020
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
In
re: R6 287 in cash (the property) seized by the south African
Police Service (the SAPS) in Aliwal North on 7 November 2019
JUDGMENT
BESHE
J:
[1]
The applicant was granted
preservation order in terms of
Section
38 of the Prevention of Organised Crime Act
[1]
(POCA)
on the 3 March 2020. This was in respect of an amount of R6 287.00
(the property) that was seized by the members of
South African Police
Service in Aliwal North on the 7 November 2019.
[2]
The applicant is now seeking a
forfeiture order in respect of the said property in terms
of
Section
53 of the POCA
(Forfeiture order by default). The application for
a forfeiture order is governed by
Sections 48 to 57 of the POCA
.
[3]
Section 48(1)
provides
that if a preservation of property order is in force, the National
Director of Public Prosecutions may apply to the High
Court for an
order forfeiting to the State all or any of the property that is
subject to the preservation order.
[4]
Section 50
governs the
making of the forfeiture order and provides that such an order shall
be made if the court finds
on a balance of probabilities
that
the property concerned – [my underlining]
(a)
is an instrumentality of an offence referred to in Schedule1;
(b)
is the proceeds of unlawful activities; or
(c)
is property associated with terrorist and related activities.
[5]
The application is premised on
the following facts:
On
the 20 February 2018 as a result of an undercover operation one,
Mr
David Mokoena
sold 60 Mandrax tablets to a police agent for
R2 700.00. Once again on the 15 March 2018 during the course of
yet another undercover
operation,
Mr Mokoena
sold 649 Mandrax
tablets to a police agent for R29 250.00. Approximately a year
and a half after the second incident, on the
17 November 2019,
members of SAPS, armed with a search warrant visited
Mr Mokoena’s
home situated at 204 Schalk Street, Aliwal North in order to arrest
him presumably for the transactions that took place in February
and
March of 2018.
Mr Mokoena
was however not found at the
abovementioned address. The police were directed to another address
being Buffels Bron Flats, Springs.
They then proceeded to the latter
address. Before doing so however, they searched the place at Schalk
Street and did not find any
drugs. Having found
Mr Mokoena
at
the Buffels Bron Flats, they informed him that he was under arrest in
connection with the drugs he sold to undercover agents
during 2018.
They also conducted a search on the premises, on
Mr Mokoena
as
well as his girlfriend
Ms Bini
. No drugs were found. The
police found cash amounting to R6 287.00, the subject of this
application, which they confiscated.
[6]
According to
Warrant Officer
Siko
who is the investigating officer of the cases in respect of
which
Mr Mokoena
was arrested in November 2019 in connection
with the two undercover operations, there are reasonable grounds to
believe that
Mr Mokoena
is involved in dealing in drugs
activities. And that therefore the property is proceeds of unlawful
activity – dealing in
drugs based on (i) the huge amount of
money found in his possession and (ii) the amount of drugs that were
sold to the undercover
agents previously.
[7]
According to the investigating
officer,
Mr Mokoena
also has a previous conviction for dealing
in drugs. However,
Mr Mokoena’s
criminal record
indicates that he was convicted of driving a motor vehicle without
reasonable consideration for other road users.
[8]
Ms
Nicole Peters
who
is a Deputy Director of Public Prosecutions deposed to the founding
affidavit in support of this application. She asserts that
the
property is an instrumentality in an offence.
[2]
Not proceeds of crime as
Warrant
Officer Siko
suggests.
I called upon applicant’s legal representative to provide me
with brief heads of argument in respect of the property
being the
instrumentality of an offence / proceeds of unlawful activities, in
particular the link between the property and drugs
sold to undercover
agents more than a year prior to the confiscation of the property.
After summarising the facts surrounding the
confiscation of the
property, a point is made that of importance is to note that
Mr
Mokoena
has
a previous conviction for drug dealing. As well as of the fact that
neither
Mr
Mokoena
nor
his girlfriend has entered an appearance to oppose the forfeiture
application.
[9]
We know that there is no
evidence of
Mr Mokoena’s
previous conviction for dealing
in drugs. Even if there was, I am not certain that that would be
enough to show on a balance of
probabilities, that the property
constitutes proceeds of drug dealing transaction/s.
[10]
The return of service in respect of this
application indicates that
Mr Mokoena
was in the holding cells
when he was served with the papers in question. So, there may be a
number of reasons why he has not entered
an appearance to oppose the
application.
[11]
I am not persuaded on the facts of this case that
there is a sufficiently close link between the property
and any
criminal activity to render it to be proceeds of such crime.
[3]
Declaring the property forfeited would amount to what the Supreme
Court of Appeal warned against in the matter referred to in footnote
3, namely
NDPP
v R.O. Cook
where
the court at paragraph [29] cautioned that the pursuit of the
objectives of
Prevention
of Organised Crime Act
should
not exceed what is constitutionally permissible. I do not think that
POCA
is
intended to operate in such a manner that just because a person was
involved in alleged drug dealing activities previously, over
a year
and a half ago, any money found in that person’s possession is
in all probability proceeds from drug dealing activities
and
therefore liable to being forfeited.
[12]
Had the property been found in
Mr Mokoena’s
possession within a reasonable time after the two undercover
operations, I would not have had any difficulty in concluding that
on
a balance of probabilities the property constituted proceeds of drug
dealing. We do not know what happened to the money that
exchanged
hands during those undercover operations. Why it took over a year to
arrest
Mr Mokoena
in connection therewith.
[13]
I am not persuaded that the applicant has made out
a case for the forfeiture order it seeks. It has not
been shown on a
balance of probabilities that the property is proceeds of drug
dealing activities.
[13]
Accordingly:
1. The application for
the forfeiture of the property being an amount of R6 287.00 in
cash is dismissed.
2. The property
described in paragraph 1 is to be returned to Mr Mokoena forthwith.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant :
Mr Wolmarans
Instructed
by
:
N N DULLABH &
CO.
5
Bertram Street
GRAHAMSTOWN
Ref:
Mr. Wolmarans
Tel.:
046 – 622 6611 / 9966
Date
Heard
:
28 June 2022
Date
Stood Down :
28 June 2022
Date
Delivered
: 26 July
2022
[1]
Act 121 of 1998.
[2]
Paragraph 23 of the founding affidavit page 11 of the index –
forfeiture application.
[3]
See National Director of Public Prosecutions v R.O. Cook Properties
2004 (2) SACR 208
SCA at [32] in respect of instrumentality of
crime.