Brooks and Another v National Director of Public Prosecutions (855/2016) [2017] ZASCA 42; 2017 (1) SACR 701 (SCA); [2017] 2 All SA 690 (SCA) (30 March 2017)

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[2017] ZASCA 42
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Brooks and Another v National Director of Public Prosecutions (855/2016) [2017] ZASCA 42; 2017 (1) SACR 701 (SCA); [2017] 2 All SA 690 (SCA) (30 March 2017)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No:   855/2016
In
the matter between:
ASHLEY
BROOKS

FIRST
APPELLANT
CHARLENE
SYBIL BROOKS

SECOND APPELLANT
and
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
Neutral
citation:
Brooks
v NDPP
(855/16)
[2017] ZASCA 42
(30 March 2017)
Coram:
Ponnan,
Willis, Zondi, Mocumie JJA and Schippers AJA
Heard:
20
February 2017
Delivered:
30
March 2017
Summary:
Application
for forfeiture order in terms of
s 48(1)
of the
Prevention of
Organised Crime Act 121 of 1998
: whether residential property is
instrumentality of an offence : property used in contravention of
ss
82(
a
)
and 83(
b
)
of the Diamonds Act 56 of 1986 : whether forfeiture constitutionally
disproportionate.
ORDER
On
appeal from:
Northern
Cape Division of the High Court, Kimberley (Mamosebo AJ):
1.
The appeal is upheld with costs.
2.
The order of the High
Court is set aside and replaced with:
'The
application is dismissed with costs.'
JUDGMENT
Schippers
AJA (Mocumie JA concurring):
[1]
This
is an appeal against a forfeiture order made under s 50(1) of the
Prevention of Organised Crime Act 121 of 1998 (POCA), in
terms of
which immovable property ie Erf 23285 Kimberley, located at 2 Norris
Street, Kimberley (the property), was declared forfeit
to the State
on the basis that it was an instrumentality of an offence (illegal
diamond-dealing) as contemplated in POCA. The appellants
are the
registered owners of the property. The second appellant’s
interest in the property was excluded from the forfeiture
order, in
terms of s 52(1) of POCA. The Northern Cape Division of the High
Court, Kimberley (Mamosebo AJ) ordered the curator bonis
to pay her
one half of the net proceeds of the property upon its disposal.
Factual
background
[2]
The
basic facts are uncontroversial. At the relevant times, the first
appellant, Mr Ashley Brooks (Brooks), was the holder of a
prospecting
right in terms of s 18(3) of the Mineral and Petroleum Resources
Development Act 28 of 2002 (the Mineral Resources
Act), to prospect
for alluvial diamonds on a farm in the Northern Cape. Brooks was also
the holder of a mining permit issued in
terms of s 27 of the Mineral
Resources Act, which authorised him to mine for alluvial diamonds on
the same farm. A part of the
property was used as an office from
where Brooks conducted his business.
[3]
From
14 October 2011 until 22 January 2014, the police, more specifically,
members of the Directorate of Priority Crimes Investigations
(DPCI)
in the Northern Cape, were involved in a national covert operation
authorised by the respondent, the National Director of
Public
Prosecutions  (the NDPP), in terms of
s 252A
of the
Criminal Procedure Act 51 of 1977
.
[1]
This operation was aimed at criminal syndicates and gangs involved in
racketeering activities, illegal dealing in unpolished diamonds,
[2]
and using premises and other places not registered as a diamond
trading house in contravention of the Diamonds Act 56 of 1986 (the

Diamonds Act).
[4]
Between
March 2013 and February 2014, the police, with the aid of Mr Colin
Erasmus (Erasmus), and an undercover agent (the agent)
sold
unpolished diamonds in some 19 transactions to various individuals in
the Northern Cape. Erasmus, who used to work for De
Beers as a
diamond sorter, is a convicted diamond smuggler who operated in
Johannesburg, Cape Town and the Northern Cape. Brooks
is his nephew.
Erasmus made an affidavit which formed part of the forfeiture
application in which he said that he knew Brooks very
well; that
Brooks engages in illicit diamond transactions; that he told Brooks
that the agent had diamonds for sale; and that he
(Erasmus) met most
of the dealers through Brooks.
[5]
This
is how the illicit diamond-dealing was uncovered. Brooks arranged
each transaction between the dealer and the agent. Warrant
Officer
Potgieter of the DPCI (Potgieter) – who was the handler, tested
and weighed the diamonds, which had serial numbers,
in the presence
of the agent, and instructed him to sell them to the dealer within a
specific price range. The agent was given
a diamond scale, and audio
and video equipment was concealed on his person to record the
transaction. He met Brooks and the dealer
at the property, where the
diamonds were examined, the purchase price paid in cash and the
diamonds handed over. The agent or the
dealer paid Brooks between R8
000 and R10 000 for the use of the property, or because he
facilitated the transaction. Brooks
received R58 000 in total.
The agent handed over the cash paid by the dealer to Potgieter
together with the audio and video
equipment. The cash was deposited
into a bank account under the control of the police, and the audio
and video recordings were
safely stored.
[6]
Of
the 19 transactions, ten took place at the property between 20 March
2013 and 22 January 2014. The agent sold 78 unpolished State
diamonds
to the value of R9 689 073 for cash totalling R6 212 810.
Erasmus was present when most of these transactions
took place. The
diamonds were sold to the respondents cited in an application which
the NDPP launched in the court a quo, in terms
of s 48(1) of
POCA, for an order that the R6.2 million in cash and the property be
forfeited to the State. All these illegal
transactions were completed
in the presence of Brooks on the property, except for one in which
the price for the diamonds was paid
elsewhere.
[7]
It
is common ground that except for Mr Joseph Van Graaf (Van Graaf), the
fifth respondent in the forfeiture application, none of
the dealers
or the agent has a licence to deal in unpolished diamonds; and that
the property is not registered as a diamond trading
house, as
required under the Diamonds Act. It is alleged that Van Graaf
contravened the Diamonds Act by purchasing diamonds from
a person
other than a dealer as defined in that Act.
[3]
[8]
Save
for the appellants, the respondents in the forfeiture application did
not oppose the grant of a forfeiture order in respect
of the
property. None of them opposed forfeiture of the R6.2 million in
cash.
[4]
This is hardly
surprising, since the cash was instrumental in the various offences
of illicit diamond dealing, and virtually all
the respondents do not
hold a diamond dealer’s licence.
[9]
The
second appellant raised the so-called ‘innocent owner’
defence to the grant of a forfeiture order. In summary, it
is this.
She and Brooks are married in community of property. They have two
children who, at the time of the forfeiture application,
were aged
nine and six, respectively. In 2012 they bought the property, then a
vacant piece of land, for R70 000. They pooled their
savings and
income, and with a loan from Mr. Patrick Mason (Mason), an illegal
diamond dealer and the third respondent in the forfeiture

application, built a house on the land. Brooks and Mason are in
business together. The second appellant has not furnished any details

of the loan from Mason, neither has she given any indication whether
the property is encumbered. She says that it has been the
family home
since the end of 2012; that it is not utilised for any other purpose;
and that she had no knowledge of illegal diamond
dealing on the
property, which took place whilst she was at work.
[10]
The
second appellant states that she is a social worker employed by the
Department of Social Development, Northern Cape, earning
a gross
salary of R9 615 per month. She says that her husband, Brooks,
is a partner in a business known as ‘GA Delwery’
and
earns an average monthly income of R10 000. She goes on to say that
she first became aware that her husband was involved in
illegal
diamond transactions when he was arrested in August 2014.
[11]
The
court a quo excluded the second appellant’s interest in the
property from the forfeiture order. In accordance with the
decision
of this court in
Mazibuko
,
[5]
the court ordered the curator
bonis
to pay her one half of the net proceeds from the sale of the
property, which it held was her separate property. There is no
cross-appeal
against that order. The court a quo found that the
property was an instrumentality of offences of illicit diamond
dealing; that
it was indispensable to the success of those
transactions; and that forfeiture was not disproportionate.
[12]
Before
dealing with the law relating to forfeiture, it is appropriate at
this point to consider whether the court a quo should have
condoned
the late filing of Brooks’ opposing affidavit in the forfeiture
application.
The
condonation application
[13]
Brooks
chose not to deal with the merits of the forfeiture application.
Instead, in a confirmatory affidavit made on 17 February
2015 in
support of his wife’s opposition to forfeiture, Brooks denied
that he was involved in any illegal diamond transactions
on the
property (the confirmatory affidavit). Subsequently Brooks made an
opposing affidavit on 25 March 2015 (the opposing affidavit)
and
asked the court a quo to condone its late filing. The basic reason
for the delay in filing that affidavit was that Brooks relied
on the
advice of his former attorneys concerning the procedure that had to
be followed in opposing the forfeiture application.
[14]
In
the opposing affidavit, Brooks again denies the allegations against
him, in particular that he was involved in any criminal offence
or
that he received R58 000. He then analyses the illegal
transactions in Erasmus’ affidavit and says that not all the

transactions took place on the property, which was incidental to the
commission of the offences. The opposing affidavit really
contains no
defence to the NDPP’s case that the property was an
instrumentality of the offences. Mr Pretorius, who appeared
for the
appellants, rightly conceded that the opposing affidavit takes their
case no further. However, it contains Brooks’
version why a
forfeiture order should not be granted (albeit that his version is
essentially the same as the second appellant’s).
Although it
was delivered out of time, there was no prejudice to the NDPP.
[6]
Indeed, he delivered a replying affidavit in which he dealt in some
detail with the allegations in the opposing affidavit. In the

circumstances, given that a case should be decided on all the facts
relevant to the issues in dispute, and the absence of prejudice,
the
opposing affidavit should have been admitted in evidence. I have
therefore taken it into account in this judgment.
Forfeiture:
the law
[15]
The
present state of the law regarding forfeiture of property under POCA
may fairly be outlined as follows. The process starts when
the NDPP
applies for a preservation of property order in terms of s 38 of
POCA. Section 38(2) provides inter alia that a high court
shall make
such an order:
‘
if
there are reasonable grounds to believe that the property concerned –
(a)
is an instrumentality of an offence referred to in Schedule 1; or
(b)
is the proceeds of unlawful activities;’
[16]
Section
48(1) of POCA provides that if a preservation of property order is in
force the NDPP may apply for an order forfeiting to
the State the
property that is subject to a preservation order. Forfeiture
proceedings under POCA are proceedings
in
rem
.
It is the property which is proceeded against and by resort to legal
fiction, held guilty and condemned as though it were conscious

instead of inanimate. The focus is not on the wrongdoer but on the
property used to commit an offence, or property which constitutes
the
proceeds of crime. Forfeiture proceedings are not conviction-based:
they may be instituted even when there is no prosecution.
[7]
[17]
Where
a forfeiture order is sought, the court undertakes a two-stage
enquiry. The first is whether the property in issue was an

instrumentality of an offence, more specifically, whether there is a
functional relation between the property and the crime. At
this
stage, the focus is on the role the property plays in the commission
of the crime, not the state of mind of the owner. The
second stage
arises after finding that the property was an instrumentality of the
offence, in which the court considers whether
certain interests
should be excluded from forfeiture. At this stage the owner’s
state of mind comes into play.
[8]
[18]
In
terms of s 50(1) and (2) of POCA, and subject to s 52 (which deals
with the exclusion of interests in property), a high court
is obliged
to make a forfeiture order if it finds on a balance of probabilities
that the property concerned is an instrumentality
of an offence or
the proceeds of unlawful activities. It is
not
the NDPP’s case that the property constitutes the proceeds of
unlawful activities.
[19]
POCA
defines ‘instrumentality of an offence’ as meaning inter
alia, ‘any property which is concerned in the commission
or
suspected commission of an offence’. But that definition must
be restrictively construed. Not every material object or
immovable
property concerned in an offence is liable to forfeiture as that
would cast the net too wide. There must be a reasonably
direct link
between the property and its criminal use. Put differently, the
property must facilitate or make possible the commission
of the
offence in a real and substantial way. It must be instrumental in,
and not merely incidental to, the commission of the offence.
[9]
Providing a location is not enough: the property, in its character or
in the way it is used, must itself in some way make the offence

possible or easier.
[10]
Each
case, obviously, must be decided on its own facts.
[11]
[20]
Before
granting a forfeiture order under POCA, a court must enquire as to
whether such an order would amount to an arbitrary deprivation
of
property in violation of s 25(1) of the Constitution.
[12]
The proportionality rule was tersely stated by Nugent JA in
Van
Staden
:
[13]
‘
To
avoid an order for forfeiture … being arbitrary, and thus
unconstitutional, a court must be satisfied that the deprivation
is
not disproportionate to the ends that the deprivation seeks to
achieve. In making that determination the extent to which the

deprivation is likely to afford a remedy for the ill sought to be
countered, rather than merely being penal, will necessarily come
to
the fore, bearing in mind that the ordinary criminal sanctions are
capable of serving the latter function.’
[14]
[21]
The
Constitutional Court likewise has held that the standard of
proportionality under POCA amounts to no more than that forfeiture

should not constitute arbitrary deprivation of property or the kind
of punishment not permitted by s 12(1)
(e)
of
the Constitution.
[15]
Was
the property an instrumentality of an offence?
[22]
The
NDPP contends that there are reasonable grounds to believe that the
property is an instrumentality of an offence under a law
relating to
the illicit dealing in precious stones contained in Schedule 1 to
POCA (item 27); and offences referred to in Chapter
3 or 4 thereof,
concerning the proceeds of unlawful activities and criminal gang
activities (item 32). The founding affidavit states
that the
property, which is not a registered diamond trading house as
contemplated in the Diamonds Act, was used as premises for
illegal
diamond-dealing; and that the property and the cash used in the
illicit transactions were deliberately chosen, and were
integral to
the commission of the offences. The affidavit further states that
that the property was repeatedly utilised to commit
the offences,
that Brooks was paid for its use and that the cash of some R6.2
million constitutes both an instrumentality of the
various offences
and the proceeds of crime.
[23]
I
interpose to mention that on a proper construction of POCA, it seems
that the same money can have both statutory characters of
being an
instrumentality and proceeds at one time. The one character does not
exclude the other and they are not antithetical as
these terms are
used in POCA. The R6.2 million was clearly an instrumentality of the
various offences of illegal diamond dealing
because it was concerned
in the commission of the offences: without payment for the unpolished
diamonds, the offences could not
have been committed. On the facts of
this case the R6.2 million also constitutes the proceeds of unlawful
activities, defined in
POCA inter alia, as ‘property derived,
directly or indirectly, in connection with or as a result of any
unlawful activity
carried on by any person’. This is buttressed
by the fact that none of the respondents in the forfeiture
application placed
any evidence before the court a quo as to their
sources of income on the one hand, and their expenditure on the
other, to show
that there is no significant discrepancy between the
two; or indeed that the R6.2 million is money derived from legitimate
sources
of income. They must know the source of their assets and what
they have been living on. The inference is inescapable that the R6.2

million used to pay for the unpolished diamonds can only be derived
from crime.
[24]
The
appellants’ answer to the NDPP’s case is a bald denial.
Brooks denies that he was involved in any illicit diamond
dealing,
that any such transaction took place on the property and that the
property was an instrumentality of any offence. The
second appellant
supports her husband’s stance and to that end, filed his
confirmatory affidavit. She too, explicitly denies
that between March
2013 and January 2014, ten illicit diamond transactions took place on
the property as set out in the founding
affidavit in the forfeiture
application. She says that she was not a party to, and had no
knowledge of, the illegal diamond dealing
that took place on the
property.
[25]
The
principles governing disputes of fact in motion proceedings are
well-established. An applicant who seeks final relief on motion
must
accept the version of his opponent in the event of a conflict, unless
the court considers that the latter’s allegations
do not raise
a real, genuine or bona fide dispute of fact, or are so far-fetched
or clearly untenable that the court is justified
in rejecting them
merely on the papers.
[16]
Where, as in this case, the facts are such that the disputing party
must necessarily possess knowledge of them and be able to provide
an
answer or countervailing evidence, but rests his case on a bare
denial, generally a court will have difficulty in finding that
a real
or bona fide dispute of fact exists.
[17]
[26]
As
regards the illicit diamond dealing that took place on the property
and Brooks’ role in it, the appellants’ denials
do not
raise a real and bona fide dispute of fact.  They are plainly
untenable. The evidence conclusively shows that Brooks
facilitated
each illegal diamond transaction; that those transactions took place
on the property; that the dealers paid R6.2 million
for unpolished
diamonds; that pursuant to the illicit transactions Brooks received
R58 000; and that the R6.2 million was declared
forfeit to the State.
[27]
The
question then is whether the property was used in a real and
substantial way, which made the commission of the offences possible

or easier. To begin with, it was repeatedly used as a place to trade
in unpolished diamonds, in contravention of s 83
(b)
of the Diamonds Act.
[18]
In
keeping with the objects of the Act, which include control over the
possession, purchase and sale of diamonds, s 44 prohibits
the
use of any premises as a diamond trading house, without a diamond
trading house licence and registration of such premises as
a diamond
trading house. The Diamonds Act defines a ‘diamond trading
house’ as the premises at which the holder of
a diamond trading
house licence may facilitate local buying and selling of unpolished
diamonds.
[28]
So,
the frequent use of the property as a place to facilitate the buying
and selling of unpolished diamonds not only renders the
property
itself instrumental in the offence of using the property as a diamond
trading house, but also points to a direct and immediate
connection
between the property and the numerous offences of unlawful trading in
unpolished diamonds that took place there.
[29]
Given
the nature of the offences and how frequently the property was used
to facilitate them, it is necessary to consider Brooks’
control
of the property and the illicit transactions in some detail. Brooks
used the property as his office. As owner, he controlled
the
possession and use of the property, which was practically effective.
He repeatedly allowed the property to be used as a
de
facto
diamond trading house. He set up and facilitated each illicit
transaction that took place there, in his presence. He chose the

property as a suitable place where: buyers of unpolished diamonds
would meet the seller; the price would be negotiated; the diamonds

would be weighed and examined (in some cases using a diamond tester,
a diamond light and a jeweller’s loupe); and large amounts
of
cash would exchange hands without any paperwork. Brooks also stored
cash on the property to pay for unpolished diamonds, as
is shown
below.
[30]
By
virtue of his involvement in the industry as the holder of a
prospecting and mining permit, Brooks knew which dealers would be

willing to engage in the illegal purchase of unpolished diamonds at
the property. And the dealers whom he called to the property
always
showed up. In fact, on 20 March 2013 Brooks arranged with not one,
but two dealers, Mason and Mr Mahmoud Ahmad (Mahmoud),
to purchase
diamonds on the property. Mahmoud bought two unpolished diamonds for
R128 000 right there and then, and wanted to give
the undercover
agent R8 000. Instead, the money was given to Brooks for the use
of the property. After each transaction, save
for one, the dealer or
the agent returned to the property for the price in cash.
[31]
There
can be no question that the property made the commission of the
offences possible or easier. The dealers did not merely happen
to be
there when they committed the offences: they were there by prior
arrangement to trade in unpolished diamonds, as Mr Pretorius
fairly
conceded. This shows a persistent pattern of association between the
dealers and the property.
[19]
The property provided a safe and secure place for the commission of
the offences, away from the public eye and, so Brooks and the
dealers
thought, detection by the police. Significant quantities of diamonds
– in one instance 19 – were examined,
weighed and tested.
Large amounts of cash - in one transaction R1.25 million and in
another, R1.9 million – were brought,
counted and exchanged
hands on the property. A total of 78 diamonds amounting to R6.2
million were frequently sold over a period
of ten months, which
clearly establishes a course of criminal conduct.
[32]
The
safety and security which the property offered emboldened dealers to
return to it to engage in more than one transaction. Mason
did three
illegal diamond deals on the property at different times. On 28 March
2013 he bought six diamonds for R260 000.
After the price was
agreed upon, he left to fetch the money while the agent waited at the
property. An hour later Mason returned
with only R200 000 and told
Brooks to give the agent the balance of R60 000, which he did.
This shows not only that Brooks
was directly involved in that illicit
transaction, but also that he stored money on the property to
purchase unpolished diamonds.
On 18 June 2013 Mason bought six
diamonds for R640 000. On 15 October 2013 he bought six diamonds
for R1.25 million, but in
this transaction Mason was not present and
Brooks examined the diamonds and paid the undercover agent. The agent
says that in all
these transactions he gave Brooks R10 000,
which was the norm for the use of the property and for his role as
the middleman.
On 11 April 2013 Mason bought six unpolished diamonds
for R250 000 at the property. However, the diamonds were
examined at
Mason’s house and the purchase price was paid at
the Leisure Lodge in Kimberley. This was the only transaction not
completed
at the property.
[33]
Likewise,
Van Graaf returned to the property to engage in more than one illicit
diamond transaction. On 25 April 2013 he bought
six unpolished
diamonds for R240 000 and on 30 July 2013, another six for
R650 000. During the transaction at the property
on 25 April
2013, there was an argument about the price. As the agent left, Van
Graaf called him back and offered him R250 000,
which he
accepted. Van Graaf then told Brooks to get the money. Brooks fetched
R250 000 from a building next to the house,
put it into a
plastic bag and gave it to the agent. This too, shows Brooks’
involvement in that transaction and that he stored
money on the
property to buy diamonds. The agent gave Brooks R10 000 because
the transaction took place on the property, and
handed R240 000
in cash to his handler.
[34]
The
safety, secrecy and security offered by the property is also
demonstrated by the fact that some dealers were not even present
when
unpolished diamonds were bought on their behalf and they parted with
large amounts of cash. As already stated, Brooks bought
six diamonds
on behalf of Mason for R1.25 million at the property. Similarly,
another dealer sent two of his henchmen to the property
to examine
and buy 19 unpolished diamonds for R1.9 million.
[35]
The
appellants however contend that the property was not an
instrumentality of the offences because it was not adapted in any way

to facilitate illicit diamond-dealing; diamonds were not stored there
but brought on to the property by the agent; and having regard
to the
period during which the transactions took place, they were ‘isolated
transactions’. The appellants are however
mistaken.
Parker
provides a complete answer. In that case the police conducted ten
‘sting’ operations at certain premises over a year.
Each
time traps successfully obtained a range of illegal drugs. This court
held that the immovable property was an instrumentality
of the
offence of dealing in drugs. Cameron JA said:
‘
The
importance of the case is that in the absence of evidence of
adaptation or storage, the NDPP sought to establish instrumentality

on the basis of the repeated use of the premises as a venue for drug
deals. And the evidence indeed shows that the property was
the base
for a very considerable drug-dealing business. Here the ten
successful stings over the year of surveillance are telling,
for they
show that many more such transactions must have taken place during
that period.’
[20]
[36]
What
all of this shows, is the following. The relationship between the use
of the property and the commission of the offences was
neither
tenuous nor remote. The involvement of the property was not merely
incidental to the commission of the offences: it was
put to use in a
positive sense and was a means through which the crimes were
committed. The property was the base for a significant,
organised and
well-funded illicit diamond-dealing business. Given these facts,
Brooks’ business association with Mason, the
repeated use of
the property by Brooks, Mason and Van Graaf who feature prominently
in the illegal diamond-dealing that took place
there, the inference
is irresistible that the property was utilised to facilitate many
more illicit diamond transactions.
[21]
It is also an inevitable inference that but for their arrest, Brooks
and the dealers would have continued to use the property as
a base
for illicit diamond-dealing.
[37]
In
Parker
,
[22]
Cameron JA said that the difficulties in determining criminal
instrumentality come acutely to the fore with immovable property.
But
this is not such a case. The evidence that the property was
instrumental in the commission of the offences is compelling.
[38]
On
the totality of the evidence, I am satisfied that the court a quo was
correct in holding that the NDPP had established on a balance
of
probabilities that the property was an instrumentality of the
offences of illicit trading in unpolished diamonds.
Proportionality
[39]
Once
it established that the property was an instrumentality of an
offence, a court is obliged to embark on a proportionality
enquiry.
[23]
This enquiry is
aimed at balancing the constitutional imperative of law enforcement
and combating crime and the seriousness of
the offence, against the
right not to be arbitrarily deprived of property.
[24]
[40]
This
court has said that forfeiture is aimed primarily at crippling or
inhibiting criminal activity; and that it is likely to have
its
greatest remedial effect where crime has become a business.
[25]
The Constitutional Court has held that the closer the criminal
activities are to the primary objectives of POCA, the more readily
a
court should grant a forfeiture order. Conversely, the more remote
the offence in issue is to the primary purpose of POCA, the
more
likely that forfeiture would be disproportionate.
[26]
In this regard, it bears mentioning that the overall purpose of POCA
is to counter the rapid growth, both nationally and internationally,

of organised crime, money laundering, criminal gang activities and
racketeering, which present a danger to public order and safety;
and
threatens economic stability and the rights of all.
[27]
[41]
The
facts show that the property was the base for an ongoing, organised
and well-funded criminal enterprise involving diamond-dealing,
huge
amounts of cash and inevitably, money laundering. And the
uncontroverted evidence is that the offences were committed in the

course of a broader enterprise of criminal activity, involving
amongst others, Brooks, Mahmoud and Mason. Brooks introduced Erasmus

and the agent to these dealers. Mahmoud seems to be a big player in
the criminal enterprise. He, in turn, introduced the agent
to a
dealer, one Komalin, who told the agent that he has a plane on which
he could transport the agent with diamonds and money.
Komalin asked
the agent to provide them with diamonds to the value of R5 million
and offered to buy the agent a vehicle to travel
from and to
Kimberley. In another illicit diamond transaction on 2 September 2013
involving Mahmoud and Komalin, Mahmoud gave Erasmus
R45 000. Two
weeks later Komalin was involved in another illegal diamond deal at
his home where Mahmoud was present. In January
2014 Mahmoud was
involved in a further illicit transaction. Mason, Brooks’
business associate, told the agent to put diamonds
on tender at the
business of Mr Derrick Corns (Corns). Subsequently Corns also engaged
in an illegal transaction at his home. The
police later established
that Corns is in fact Mr Kevin Urry, the same person who had sent his
henchmen to the property to buy
diamonds for R1.9 million.
[42]
Although
these illicit transactions did not take place at the property, they
form part of the wider undercover operation and would
not have been
possible had Brooks not introduced the agent to the dealers in
question. More fundamentally, however, they underscore
the point that
an order of forfeiture is especially appropriate where, as in this
case, the offences have been committed in the
course of a broader
criminal enterprise. I cannot put the point better than Nugent JA did
in
Vermaak
:
[28]
‘
Where
an offence has been committed in the course of a broader enterprise
of criminal activity that is being conducted by the offender
in
association with others it can serve not only to inhibit the
particular offender from continuing that activity but also to arrest

the continuance of that activity by others who are party to the
ongoing enterprise. And even where the offence is committed in
the
course of an ongoing criminal enterprise that is being conducted by
the offender alone the withdrawal of property is capable
of having a
severely inhibiting effect on its continuance. It seems to me, in
other words, that forfeiture is likely to have its
greatest remedial
effect where crime has become a business.’
[43]
The
use of the property as a base for illegal diamond-dealing, as a
de
facto
diamond trading house and as part of a criminal enterprise, is
organised action against the forces of law. Organised crime and

illegal diamond-dealing are a serious threat to the legitimate
economy, national stability and security of the country.
[29]
The inclusion of these crimes in Schedule 1 to POCA is therefore not
surprising.
[30]
They are
extremely difficult to detect. That is why the police had to conduct
an extensive undercover operation for some two years.
Given the
significant number of diamonds illegally traded, the frequency of
those transactions at the property and the request
to the agent to
provide diamonds of R5 million, the inference is irresistible that
both the demand for diamonds and the profits
derived from illicit
diamond-dealing, are high. Contrary to the finding by the court a
quo, the diamonds used in the undercover
operation, valued at some
R9.7 million, have not been recovered and are probably in the hidden
criminal underworld. It is precisely
for these reasons that POCA was
enacted: to deprive criminals of property that has been used to
commit an offence and the proceeds
of their criminal conduct. In my
opinion, forfeiture in this case would serve the broader societal
purpose of: (a) deterring persons
from using property to commit
crime, in particular, Brooks and the participants in the criminal
enterprise; (b) eliminating or
incapacitating some of the means by
which crime may be committed; and (c) advancing the ends of justice
by depriving those involved
in crime of the property concerned.
[31]
[44]
Having
regard to the nature and gravity of the offences that took place at
the property and the illegal activities exposed in the
undercover
operation; and their adverse impacts on the economy, stability and
security of the country, it cannot be suggested that
in these
circumstances, forfeiture is a means of either substituting the
ordinary criminal remedies for illicit diamond-dealing,
or ‘topping
up’ any criminal penalties that might be imposed on the dealers
involved in the illicit transactions that
took place on the
property.
[32]
And, with
respect, I do not think that the lawgiver intended the forfeiture
provisions of the Diamonds Act to be exhaustive, so
as to exclude the
forfeiture provisions of POCA.
[33]
I say this essentially for two reasons. It would mean, for example,
that immovable property not used as a home or residence, but

exclusively used as a base for illegally trading in unpolished
diamonds, would be beyond reach of POCA’s forfeiture
provisions.
That would negate the purposes of POCA. Secondly, the
forfeiture provisions of the Diamonds Act are strictly circumscribed:
only
money or property ‘paid or delivered to … a member
or agent of the South African Police in pursuance of an agreement
for
the delivery or acquisition of unpolished diamonds, shall upon . . .
conviction . . . be forfeited to the State.’
[34]
As Sachs J observed in
Mohunram
:
[35]
‘[POCA] has its own rationale and own objectives, which should
be jealously guarded.’
[45]
As to the impact of forfeiture on the rights of an innocent spouse
married in community of property such as the second appellant,
where
co-ownership of the joint estate is indivisible, in
Mazibuko
Nugent
JA concluded that a proper construction of s 57(1) of POCA, addresses
the issue of indivisibility of the joint estate, and
avoids arbitrary
deprivation of property.
[36]
That provision, which requires the curator bonis to deposit the
proceeds of the sale of property into the Criminal Assets Recovery

Accout, contemplates the exclusion of any interest under s 52, such
as a contingent interest in the proceeds of a sale of immovable

property, as happened in this case.
[37]
The construction which Nugent JA placed on s 57(1) of POCA, in my
opinion, not only gives effect to the objects of POCA, more
specifically that property owners like Brooks, ‘must exercise
responsibility for their property and . . . account for their

stewardship of it in relation to its possible criminal
utilisation’,
[38]
but is
also fair and just in relation to the innocent spouse. Otherwise
viewed, it would mean that forfeiture cannot be ordered
in a case
where the parties are married in community of property,
notwithstanding that the interest of the innocent spouse has
been
excluded under s 52 of POCA.
[46]
I come now to the appellants’ allegations in their answering
affidavits regarding proportionality. There are essentially
two. The
first is that that the property is the family home; and the second,
that the amount of R58 000 which Brooks received
(which the
appellants deny) is insignificant compared to the value of the
property (its market value was R960 000 in 2014). It
should be noted
that these allegations were put up as a defence to the NDPP’s
claim that the property was an instrumentality
of the offences. In
its judgment however, the court a quo had regard to the question
whether a forfeiture order would amount to
an arbitrary deprivation
of the property and the appellants’ claim that Brooks received
only R58 000 which is disproportionate
to the value of the property.
On the authority of
Prophet
,
[39]
the court a quo held that given the nature of the offences and the
extent to which the property was used as an instrument thereof,

forfeiture was not disproportionate and that the amount which Brooks
received was not decisive of this issue. In my view, this
decision
cannot be faulted, for the reasons advanced herein.
[47]
What remains is the impact of forfeiture of the property on the
rights of the appellants’ children. Section 28(2) of
the
Constitution provides that a child’s best interests are of
paramount importance in every matter concerning the child.
In
Van
Der Burg
,
the Constitutional Court stated that to the extent that children may
be affected by a forfeiture order, a court must consider
their
interests in the proportionality enquiry; that in forfeiture
proceedings parents are expected to invoke the interests of
their
children, but if they fail to do so, the court has a duty to consider
the children’s interests; and that officers of
the court like
the NDPP are expected to assist the court in this regard.
[40]
[48]
Whilst it is true that the onus of establishing the requirements of a
forfeiture order in terms of s 50 of POCA, including
proportionality,
rests on the NDPP, some factual material relevant to the
proportionality analysis will often be peculiarly within
the
knowledge of the owner of the property concerned; and where the NDPP
establishes a
prima
facie
case, the owner bears an evidentiary burden to place material before
the court to rebut that case.
[41]
[49]
On this aspect of the matter, the statement by Laws LJ in
Mahmood
,
[42]
cited with approval by Ackermann J in
First
National Bank
,
[43]
must be borne in mind: ‘in the law context is everything.’
[50]
On the facts described above, the NDPP made out a
prima facie
case for forfeiture of the property. In my view, nothing turns on the
fact that the NDPP initially was of the view that Brooks
was the
owner of the property: the second appellant was not thereby
prejudiced, and was granted an opportunity of opposing the
forfeiture
order and placing all the relevant facts, particularly those in
relation to the children, before the court a quo. But
in her opposing
affidavit the second appellant simply says:
‘
16.
My husband, myself and our two children at present reside on the
immovable property and have been
doing so since approximately the end
of 2012.
17.
The immovable property is thus utilised as our family home and is not
[used] for any other
purpose.’
[51]
What is striking about the second appellant’s affidavit is that
she does not say that the interests of the children would
be
adversely affected if the property were to be forfeited. And this,
when she is a qualified social worker. It may safely be accepted
that
she is acutely aware of the rights of children enshrined in the
Constitution, as well as the provisions of the Children’s
Act
38 of 2005, specifically as regards children in need of care and
protection. But first and foremost, the second appellant is
a mother
and there is nothing in the papers to even suggest that she, or her
husband, do not have the best interests of their children
at heart.
In their opposing affidavits, there is not a hint that the children
are in any kind of need, or that they would be at
risk in the event
of a forfeiture order being granted. Neither, do the appellants
suggest that they or their children would be
rendered homeless
pursuant to a forfeiture order. Had that been the case, or if the
children were in any way at risk or in need,
I have no doubt that the
second appellant would have raised it. Instead, the high watermark of
the appellants’ case is that
the property is their family home.
The most readily apparent and plausible inference to be drawn from
these facts is that the children
will not be adversely affected by
the grant of a forfeiture order.
[44]
[52]
This finding applies
a
fortiori
in the instant case. In their answering affidavits the appellants did
not even suggest that they or their children (whose need
for shelter
are bound up with that of their parents) would be rendered homeless
upon forfeiture of the property. Neither could
they. They can
comfortably afford alternative accommodation. They do not earn paltry
incomes: the first appellant earns R10 000
and the second,
R 9 615 per month. They do not appear to be persons of
modest means. In addition, the property appears
to be bond-free.
According to a valuation certificate attached to the answering
affidavit, the market value of the property in
September 2014 was
R960 000. The second appellant’s half share excluded from
forfeiture is thus in the order of R480 000,
which, together
with their monthly income, would enable the appellants to buy another
property. And, of course, Brooks consciously
assumed the risk of
losing the property when he used it as a base for an organised
illegal diamond-dealing business.
[53]
Finally, the court a quo specifically had regard to
Van
Der Burg
[45]
in deciding whether the grant of a forfeiture order would amount to
an arbitrary deprivation of property in violation of s 25(1)
of the
Constitution. The court would thus have been alive both to the
interests of the children and the fact that the appellants’
did
not allege that they or their children would be rendered homeless if
the property were forfeited to the State.
[54]
I consider that on the evidence before the court a quo, the order of
forfeiture was properly made. On this part of the case
I would
therefore dismiss the appeal.
[55]
In the result I would make the following order:
1.
Paragraphs 2 and 10 of the order of the court a quo are set aside and
replaced
with the following order:
‘
Condonation
is granted for the late filing of the opposing affidavit by the first
respondent, Mr Ashley Brooks. There is no order
as to costs as
regards both the application for condonation and the forfeiture
application.’
2.
Save as aforesaid, the appeal is dismissed.
_________________
A Schippers
Acting
Judge of Appeal
Ponnan
JA (Willis and Zondi JJA concurring):
[56]
The issue in this appeal is whether the family home of the appellants
and their two minor children should be forfeited to the
State in
terms of chapter 6 of POCA. That depends: first, on whether the
property was an instrumentality of an offence under the
Act; and if
it was, then second, whether, it is liable to forfeiture. My
colleague Schippers AJA has answered both questions against
the
appellants, the Brooks and in favour of the respondent, the NDPP. He
accordingly proposes that the appeal be dismissed. I feel
constrained
to disagree.
I
do not propose to restate the facts or history to the litigation
because these are captured adequately in the judgment of my learned

colleague.
[57]
I shall first comment on what I perceive to be the rather tenuous
connection between the property sought to be forfeited and
the
illegal conduct on the part of the first appellant, Mr Brooks.
Chapter 6 provides for forfeiture where it is established on
a
balance of probabilities that property has been used to commit an
offence or (and this does not arise in this case) is the proceeds
of
unlawful activities.
POCA
defines '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'.
In
NDPP
v RO Cook Properties,
this
court pointed out that ‘in adopting this definition the
legislature sought to give the phrase a very wide meaning.’
[46]
The judgment further emphasised that ‘a literal application of
the provision could lead to arbitrary deprivation of
property.’
[47]
Cook
Properties
[48]
accordingly favoured a narrow reading of ‘instrumentality of an
offence’.
[58]
The correct interpretation of the concept ‘instrumentality of
an offence' in the context of POCA was considered by the

Constitutional Court in
Prophet
.
[49]
As Van Heerden AJ explained in
Mohunram
,
[50]
in considering the meaning of the phrase 'an instrumentality of an
offence’ the Constitutional Court in
Prophet
adopted
the interpretation accepted by the Supreme Court of Appeal in a
trilogy of cases.
[51]
Van Heerden AJ added:
‘
In the first
of those cases,
Cook
Properties
,
Mpati DP and Cameron JA  said that “(i)t is clear
that in adopting this definition the Legislature sought to give
the
phrase a very wide meaning”.  They held, however, that in
order to ensure that application of the forfeiture provision
does not
constitute arbitrary deprivation of property in violation of s 25(1)
of the Constitution “. . . 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 that the employment of the property must be functional to
the commission of the crime. By this we mean
that the property must
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. As the term ‘instrumentality’
itself suggests . . .
the property must be instrumental in, and not
merely incidental to, the commission of the offence. For otherwise
there is no rational
connection between the deprivation of property
and the objective of the Act: the deprivation will constitute merely
an additional
penalty in relation to the crime, but without the
constitutional safeguards that are a prerequisite for the imposition
of criminal
penalties.'
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” ‘
[52]
[59]
Mahomed
(1)
pointed
out that chapter 6’s primary focus is ‘not on wrongdoers
but ‘on property that has been used to commit
an offence.’
[53]
‘
The
thing is here primarily considered as the offender, or rather the
offence is attached primarily to the thing.’ (
Bennis
v Michigan
).
[54]
I
n
giving
meaning to ‘instrumentality of an offence' the focus is
not on the state of mind of the owner, but rather on the
role the
property plays in the commission of the crime.
[55]
The
majority decision in
Bennis
sparked controversy amongst commentators. It has been suggested that
the majority was unsuccessful in articulating a justification
for the
forfeiture. The court failed, so it has been suggested, to
acknowledge the reasons why forfeiture emerged in the areas
of
admiralty and revenue collection. That false analogy caused the court
not to engage in a substantive due process analysis. Had
it done so,
it would have concluded that forfeiting the property of an innocent
owner is unconstitutional. Accordingly, the decision
is one that
‘neither logic nor history supports’.
Bennis
relies
on the legal fiction of ‘guilty property’, namely that
the property, and not the owner, is guilty  and reiterates
that
property is the focus of forfeiture proceedings and not the guilt or
innocence of the property owner.
[56]
[60]
In the dissenting opinion in
Bennis
,
[57]
Justice Stevens (with whom Justice Souter and Justice Breyer joined)
identified three different categories of property that are
subject to
seizure: (a) pure contraband; (b) proceeds of criminal activity; and
(c) tools of the criminal's trade.
It
was stated: as to (a), the government has an obvious remedial
interest in removing the items from private circulation, however

blameless or unknowing their owners may be; as to (b),
which
traditionally covered only stolen property - return to its original
owner has a powerful restitutionary justification; and,
as to (c),
which includes tools or instrumentalities that a wrongdoer has used
in the commission of a crime, also known as ‘derivative

contraband’ - forfeiture is more problematic ‘both
because of its potentially far broader sweep and because the
government's
remedial interest in confiscation is less apparent’.
The facts of this case demonstrate that the subject property was
certainly
not contraband, nor was it acquired with the proceeds of
criminal activity. Moreover, its principal use was entirely
legitimate.
[61]
This case differs from other similar cases in at least the following
crucial way:
[58]
the property did not actually facilitate the commission of the crimes
in any particular manner nor was it adapted to facilitate
or further
that illegal purpose. The property sought to be forfeited bore no
necessary connection to the offences committed by
Mr Brooks. It is
true that some of the transactions were concluded at the property,
but they might just as well have occurred in
a multitude of other
locations – as many actually did. But, that some of the
transactions were concluded there, as also,
at other places was
purely incidental to their commission. The location and appointment
of the property itself played no distinctive
role in the commission
of the offences. It is thus difficult for me to see how property
bearing no reasonably direct connection
to the offences other than
serving as the location for the transactions could constitute an
instrumentality of those offences.
The
nexus
thus seems to me insufficient
between
the property and the offences committed. I accordingly entertain
serious reservations as to whether there was a ‘direct

functionality’
[59]
between the property and the offences in question but, I shall
nonetheless, for present purposes, assume – without deciding
–
that the use to which the property was put rendered it ‘an
instrumentality’. I do so because the conclusion
that I reach
on the second leg of the appeal does not compel a conclusion on this
aspect.
[62]
The Bill of Rights provides that ‘no law may permit arbitrary
deprivation of property.’
[60]
Civil
asset forfeiture constitutes a serious incursion into well-entrenched
civil protections, particularly those against the
arbitrary
deprivation of property. In
Mkontwana,
[61]
the Constitutional Court stated the following:
‘…
[T]here
must be sufficient reason for the deprivation otherwise the
deprivation is arbitrary. The nature of the relationship between

means and ends that must exist to satisfy the section 25(1)
rationality requirement depends on the nature of the affected
property
and the extent of the deprivation. A mere rational
connection between means and ends could be sufficient reason for a
minimal deprivation.
However, the greater the extent of the
deprivation the more compelling the purpose and the closer the
relationship between means
and ends must be.’
[63]
Our courts have generally been astute to the fact that forfeiture of
the instrumentalities of crime can produce arbitrary and
unjust
consequences.
[62]
It is
thus the task of the court to ensure that the deprivation of property
that will result from a forfeiture order is not arbitrary.
It is
indeed so that s 50(1) is couched in peremptory terms. It provides
that a court ‘shall’ make a forfeiture order
if it finds
on the civil standard of balance of probabilities that the property
sought to be forfeited is an instrumentality of
an  offence.
However, as Moseneke DCJ pointed out in
Mohunram,
our
courts in this context ‘have consistently interpreted “shall”
to mean “may”. They have correctly
held all requests by
State prosecutors for civil forfeiture to the standard of
proportionality which amounts to no more than that
the forfeiture
should not constitute arbitrary deprivation of property . . . .’
[63]
Albeit not a statutory requirement, proportionality is a
constitutional imperative. It is an equitable requirement that
has been
developed by our courts to curb the excesses of civil
forfeiture. 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.
[64]
[64]
According to the Constitutional Court in
Prophet,
the nature and gravity of the offence in question, the extent to
which ordinary criminal law measures (when properly enforced)
are
effective in dealing with it, its public impact and potential for
widespread social harm and disruption, are all factors
that
should also weigh in the enquiry as to whether a forfeiture order
would be constitutionally disproportionate.
[65]
Mohunram
[66]
held that it would be wrong for POCA to be utilised in a manner which
blurs the distinction between the purposes and the methods
of
criminal law enforcement, on the one hand, and those of civil law, on
the other. There is no justification for resorting to
the remedy of
civil forfeiture under POCA as a
substitute
for the effective and resolute enforcement of ordinary criminal
remedies. In that case,
[67]
Moseneke DCJ noted that if the forfeiture sought occurs within the
context of POCA, additional and countervailing considerations
come
into the proportionality analysis - the nature of the crime must be
probed keeping in mind the predominant purpose of POCA.
‘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.’
[65]
In deciding whether or not the forfeiture would be proportionate, the
question whether the instrumentality of the offence is
sufficiently
connected to the main purpose of POCA must be considered. Mr Brooks
and the others who participated in these offences
have been
prosecuted for contraventions of the Diamonds Act 56 of 1986. The
trial is still ongoing. If convicted, that Act prescribes
fairly
harsh penalties for its contravention.
[68]
What is more is that provision is there made for forfeiture.
[69]
There is thus considerable force in the contention that in framing
the provisions of the Diamonds Act, the Legislature had made
specific
provision for forfeiture and in so doing, signified an intention that
the forfeiture regime so created would suffice to
meet the mischief
sought to be addressed by the enactment. Ordinarily, it may be
accepted that, when the Legislature designates
a set of remedies
to combat specified offences, those remedies are intended to be
effective and exhaustive. This must be so in
the present case. It
follows that forfeiture in terms of POCA as well, may be doubly
punitive.
[66]
The means that chapter 6 employs (forfeiture of instrumentalities of
crime) must at the very least be rationally related to
its purposes.
According to
Cook
Properties
,
[70]
the inter-related purposes of chapter 6 include: (a) removing
incentives for crime; (b) deterring persons from
using or
allowing their property to be used in crime, (c) eliminating
or incapacitating some of the means by which crime
may be committed;
and, (d) advancing the ends of justice by depriving those
involved in crime of the property concerned.
At least (b) and (d) are
penal in nature. At core then, forfeiture seeks to prevent illegal
uses both by preventing further illicit
use of the property and by
imposing an economic penalty, thereby rendering illegal behaviour
unprofitable. As laudable as those
motives may be, there is no
escaping the draconian nature of the forfeiture; particularly in as
far as Ms Brooks is concerned.
None of those considerations find
application to her. The High Court concluded that she ‘should
succeed with her innocent
owner defence’ or more accurately put
‘her ignorant owner defence’.
[71]
There was no cross appeal by the NDPP and, in my view, there was
simply no basis on which that finding by the High Court could
be
assailed.
Cook
Properties
,
unlike us, did not have to confront, what it described as the serious
constitutional question, whether forfeiture is permissible
when the
owner (in this instance Ms Brooks) has ‘committed no wrong of
any sort, whether intentional or negligent, active
or
acquiescent’.
[72]
[67]
The statute does not readily provide an answer to the question.
Accordingly, one must look beyond the language of the statute.
The
complete lack of blameworthiness ascribable to Ms Brooks in this case
is significant.
I
daresay,
elementary
notions of fairness require some attention to the impact of a seizure
on the rights of an innocent spouse in the position
of Ms Brooks.
The
appellants are married in community of property and the property
belongs to their joint estate. The rights of spouses who are
married
in community of property - sometimes called 'tied' co-ownership - are
not divisible.
[73]
In this case, Ms Brooks did not entrust the property to her husband;
he was entitled to use it - as was she - by virtue of their

co-ownership. I shrink from the notion that the value of her
co-ownership is beneath the law's protection. There is no reason to

think that the threat of forfeiture will deter an individual, such as
her, from acquiring jointly with her husband a family home,
or for
that matter from marrying him in the first place, if she neither
knows nor has reason to know that he plans to put it to
illicit use.
It
goes without saying that now that Ms Brooks is aware of the use to
which the property has been put by her husband, and the risk
that
such use poses for her two minor children and herself, she will, I am
sure, certainly be more vigilant in the future. For
now though the
matter must be approached on the basis that she has done no wrong.
[68]
The
absence of any deterrent value reinforces the punitive nature of the
forfeiture in this case. Ms Brooks has done nothing that
warrants
punishment - she cannot be accused of negligence or of any other
dereliction in allowing her co-owner husband to use their
family
home. I accept that this approach may raise all manner of difficulty
in proving collusion, or disproving the lack thereof,
by the alleged
innocent owner and the wrongdoer, but whatever validity that aspect
might have in another case of this kind, it
has none here. It is
clear that Ms Brooks did not collude with her husband to commit the
offences. If anything, she was very much
the victim of his conduct.
Surely, Ms Brooks cannot be accused of failing to take ‘reasonable
steps’ to prevent the
illicit behaviour because, being unaware
of such behaviour, she is just as blameless as if a stranger, rather
than her husband,
had used the property in a criminal enterprise.
[69]
It appears to me that the remedial interest in this forfeiture falls
far short of that found present in some of our other cases.
[74]
Forfeiture may serve remedial ends when removal of certain items
(such as a burglar's tools) will prevent repeated violations of
the
law (such as housebreaking).
[75]
But confiscating Ms Brooks home would not preclude her husband, were
he inclined, from using other venues, since all that is needed
to
commit these offences is a place – any place, reasonably
sheltered from prying eyes. I accept that
forfeiture
is a strong weapon in the State’s arsenal in the war against
organised crime. And, I also do not lose from sight
the
sophistication of many who engage in a life of crime and who may well
be ingenious enough to insulate their property from forfeiture.
But,
it is important to recognise that each forfeiture proceeding is based
upon unique circumstances. Here,
in
addition to the lack of a sufficient nexus between the property and
the offences,
the
property was legitimately acquired long before their commission.
[70]
Aside from Ms Brooks, the interests of the two minor children also
come into the reckoning. The importance of the children’s

participation was emphasised in
Christian
Education South Africa v Minister of Education
.
[76]
In
Du
Toit v The Magistrate & others
[77]
this court said the following:
‘
In
striking the appropriate balance adequate weight must be accorded to
the interests of the children.
Article
3(1) of the United Nations Convention on the Rights of the Child,
1989 (UNCRC) requires that: “In all actions concerning

children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or
legislative
bodies, the best interests of the child shall be a
primary consideration.” Closer to home, this is echoed in art
4(1) of
the
African Charter on the Rights and Welfare of the Child, 1990 (ACRWC).
.
. .’
The
Children’s Act 38 of 2005 was drafted pursuant to South
Africa’s obligations under the UNCRC, the ACRWC and the

Constitution. Sections 10, 14 and 15 of the Children’s Act are
a cluster of provisions designed to ensure that children’s

rights are protected and their dignity is upheld in any proceedings
affecting them.
[78]
In
terms of s 28(2) of the Constitution, in all matters concerning
children (including litigation)
[79]
their best interests are of paramount importance. . . . The reach of
s 28(2) extends beyond those rights enumerated in s 28(1):
it
creates a right that is independent of the other rights
specified in s 28(1).
[80]
Section 28(2), read with s 28(1), establishes a set of rights that
courts are obliged to enforce.
[81]
In
S
v M
[82]
para
15, the Constitutional Court observed that:
‘
The
ambit of the provisions is undoubtedly wide. The comprehensive and
emphatic language of s 28 indicates that just as law enforcement must

always be gender-sensitive, so must it always be child-sensitive;
that statutes must be interpreted and the common law developed
in a
manner which favours protecting and advancing the interests of
children; and that courts must function in a manner which at
all
times shows due respect for children's rights. As Sloth-Nielsen
pointed out:
“
[T]he
inclusion of a general standard (‘the best interest of a
child’) for the protection of children’s rights
in the
Constitution can become a benchmark for review of all proceedings in
which decisions are taken regarding children. Courts
and
administrative authorities will be constitutionally bound to give
consideration to the effect their decisions will have on
children’s
lives.”’
[71]
It is so that in
Van
Der Burg
,
the Constitutional Court confirmed a forfeiture order granted by the
full court, but
efforts
to compare or equate the facts of one case to those of another are
unlikely to be of assistance.
In
Van
Der Burg
,
the
property
had been used for the business of crime, namely the sale of liquor
without a licence, for more than six years. Conventional
law
enforcement strategies, including almost 60 instances of police
action, had failed to deter the owners. The property, which
consisted
as well of an onsite consumption area, was located approximately 30
metres from a primary school, 100 metres from a Catholic
Church and
900 metres from a high school. As the Constitutional Court observed
‘the children have been growing up in a rowdy
shebeen for years
and it appears that this will continue — ironically, especially
if forfeiture is not ordered.’
[83]
As far as the possibility of homelessness resulting from
forfeiture is concerned, the Constitutional Court accepted that ‘the

high-court benches dealt with the concerns about the children
adequately. The information before them was not insufficient for
this
purpose.’
[84]
[72]
Although clearly distinguishable on the facts,
Van
Der Burg
did
lay down certain principles that are instructive for present
purposes. First, the circumstances of children necessarily play
a
role in the proportionality enquiry.
[85]
Second, the interests of the children are also a separate
and important consideration and cannot merely be dealt with as
one of several factors weighed on the proportionality scale. The
interests of the children may require steps to be taken independently

of the conclusion reached on forfeiture at the end of the
proportionality enquiry. Accordingly, the children's interests
require
specific and separate consideration, in addition to the
attention they might get in the proportionality analysis.
[86]
Third, whilst the interests of the parents and their children
necessarily overlap, the children's interests may well differ from

the parents' in a case like this. There may thus be a significant
divergence and even a conflict between the parents' and the
children's interests. The critical question is whether the
information before the court is sufficient to consider the interests

of the children, or whether the appointment of a curator to present
this information is necessary. Where there is insufficient

information about the children or where the information before the
court leaves some doubt regarding the children's wellbeing —

the court may need to appoint a curator to conduct an independent
assessment of the children's interests.
[87]
[73]
Neither the lack of ascribable culpability on the part of Ms Brooks
nor the interests of the minor children merited even a
mention in the
proportionality analysis of the High Court. Having found that the
property was ‘an instrumentality of an offence’,
the High
Court approached the proportionality enquiry thus:
‘
27.
Mr and Mrs Brooks [Brooks] contended in their opposing affidavits
that if the Court were to declare
their property forfeit that
decision would be disproportional regard being had to the fact that
Mr Brooks received only R58 000.00
whereas the property has been
evaluated and its market value was about R960 000.00. Nkabinde J
in the
Prophet
matter made the following remarks at para 69 on this aspect:
“
It
is perhaps worth pointing out that, as Ackerman JA noted in
FNB
,
the precise linguistic formulation of the proportionality test may
make little difference. In that case the Court said:
‘
(T)he
requirement of such an appropriate relationship between means and
ends is viewed as methodologically sound, respectful of
the
separation of powers between Judiciary and Legislature . . . and
suitably flexible to cover all situations. It matters not
whether one
labels such an approach an “extended rationality” test or
a “restricted proportionality” test.
Nor does it matter
that the relationship between means and ends is labelled “a
reasonably proportional” consequence,
or “roughly
proportional”, or “appropriate and adapted” or
whether the consequence is called “reasonable”
or “a
fair balance between the public interest served and the property
interest affected”.’ It is clear, as I
have outlined
above, that the forfeiture of the property in this case is neither
significantly disproportionate nor disproportionate,
given the nature
of the relevant offence, and the extent to which the property was
used as an instrument of that offence. The applicant’s
argument
that the forfeiture of his property in this case constituted an
“arbitrary deprivation of property” inconsistent
with the
Constitution must therefore fail.
Finding:
I therefore find that it is not disproportionate to order forfeiture
in this matter. The amount received by Mr Brooks should
not be the
deciding factor in determining proportionality as contended for by
the couple. Crucial in the matter is the involvement
of the property
in the commission of the offences.’
[74]
Why the High Court thought that ‘it is not disproportionate to
order forfeiture in this matter’ remained unexplained.
Here,
unlike in
Van
Der Burg
,
there was no investigation of any kind appertaining to the children.
We thus do not know whether there was any divergence of interests

between the parents and the minor children or whether it was
necessary for a
curator
ad litem
to
have been appointed to represent them. In a matter such as this, it
is the duty of the court to consider the specific interests
of the
children
[88]
and yet consideration of the children’s best interests did not
feature at all in the proportionality enquiry. The High Court

approached the enquiry as if the children's right to shelter and the
parents' rights regarding property and housing are inseparable
and
indistinguishable. And, having found, without even a mention of the
children, that forfeiture was not disproportionate, there
was no
further consideration as to whether further steps should be taken to
investigate what would be best for the children. In
Hoërskool
Fochville,
it
was emphasised that the child’s right to be heard and to have
his or her views taken into account, has been recognised
as forming
part of South African law.
[89]
The result of the High Court’s approach is that in a matter
which materially impacted on their wellbeing, the voice
of the two
minor children had been silenced.
[75]
It is no answer to suggest that it was for the Brooks to show that
they or their children would be rendered homeless upon forfeiture
of
the property.
[90]
In
Mohunram
,
[91]
Moseneke DCJ opined that it ‘would be entirely inappropriate to
lumber a person facing forfeiture proceedings under s 48
of POCA with
the burden to plead the defence of proportionality’. He
added, ‘[i]n my view, the NDPP itself, when
initiating
proceedings under s 48, should place before the court adequate facts
that will allow the court to adjudicate properly
on an application
for forfeiture under s 50(1), and in particular, on whether the
forfeiture sought is constitutionally proportionate.’
In this
regard, it is important to point out that the term
onus
is not to be confused with the burden to adduce evidence.
[92]
Importantly in
Mohunram
,
[93]
Van Heerden AJ was at one with the learned Deputy Chief Justice on
that aspect, when she stated:
‘
It
is the task of the court to ensure that the deprivation of property
that will result from a forfeiture order is not arbitrary. The

proportionality assessment is a
legal
one, based on an evaluation of all the relevant factors in the full
factual matrix of the particular case. The
onus
of establishing that all the requirements for a forfeiture order in
terms of s 50 of POCA - including that of proportionality -
have been
met, rests on the NDPP throughout. However, as some of the factual
material relevant to the proportionality analysis
will often be
peculiarly within the knowledge of the owner of the property
concerned, the owner who is faced with a
prima
facie
case established by the NDPP would in the usual course be
well-advised to place this material before the court.  This does
not
,
however, shift the
onus
of proof to the owner in  question; it merely places on the
owner an evidentiary burden or, as it is sometimes called, a burden

of adducing evidence in rebuttal.’
[76]
Thus, before faulting the Brooks’ poor showing on this aspect,
it may be as well to first subject the NDPP’s application

papers in the matter to more careful scrutiny. On 22 August 2014, the
NDPP approached the High Court
ex
parte
for
a preservation of property order in terms of s 38(1) of POCA. In
support of that application it was stated:
‘
33.1
The cash and the house were deliberately chosen and used to
facilitate the commission of illicit dealing in unpolished
diamonds;
.
. .
33.4
The house is also the place where the large sums of cash at times
were handed over.’
The
application succeeded and on 12 September 2014 the order of court was
published in the government gazette. On 9 December of
that year, the
NDPP applied in terms of s 48(1) of POCA for an order that the
property, the subject of the preservation order,
be declared forfeit
to the State. In support of that application, it was asserted that
‘Jacobus Smit [Mr Smit is a Senior
Financial Investigator
attached to the Asset Forfeiture Unit] has also established that the
First Respondent [Mr Brooks] is the
owner of the house (which is
worth approximately R520 000).’ Mr Brooks response to that
allegation was:
‘
25.
Insofar, as the allegation made by Somaru in paragraph 27 of his
affidavit that I am the registered
owner of the house, I reiterate
what I have said above namely, that I, together with my wife are the
registered owners of the property
in undivided shares and I
respectfully refer the above Honourable Court to annexure “AB4”
in support hereof. I therefore
deny the allegation made in paragraph
27 of Somaru’s affidavit insofar as it may suggest that I am
the sole owner thereof.’
[77]
That is where matters were allowed to rest until Ms Brooks, who had
not been cited as a respondent by the NDPP, sought leave
to
intervene. In an affidavit filed during February 2015 in opposition
to the relief sought by the NDPP, Ms Brooks stated:
‘
11.
I note from the founding affidavit of the Deponent Bishun Somaru
(Somaru) and in particular, paragraph
27 thereof, he alleges that one
Jacobus Smit has established that the 1
st
Respondent is the owner of the property.
.
. .
14.
I find it astonishing that notwithstanding, the fact that it was
established by the valuators
appointed by the curator bonis that I am
also the registered owner of the immovable property, Somaru in his
founding affidavit
makes no mention hereof but simply states that 1
st
Respondent is the owner of the immovable property.
15.
At the time of us purchasing the immovable property, the property was
not developed and
with contributions from both the 1
st
Respondent and myself we built a dwelling on the property. My husband
and I pooled our income and the savings from our joint incomes
over
the years have been used to inter alia contribute to the building
cost on the immovable property. I am also aware of the fact
that my
husband obtained a loan from one Patrick Mason to assist us to build
the aforesaid dwelling.
16.
My husband, myself and out two children at present reside on the
immovable property and
have been doing so since approximately the end
of 2012.
17.
The immovable property is thus utilised as our family home and is not
for any other purpose.
18.
I first became aware of the allegations raised against my husband as
being a party to illegal
diamond transactions during or about the
22
nd
of August 2014 when he was arrested.
19.
Prior to the 22
nd
of August 2014, I had no knowledge of
the above mentioned allegations.
20.
I deny that either I or the children were parties to any of he
alleged transaction or had
any knowledge thereof. This is our home
where we live as any ordinary couple with their children in South
Africa would do.
.
. .
27.
I reiterate my previous statement that the purpose of the immovable
property is to provide
accommodation for our family and as such is
utilised as our family home. I submit that in light of what I have
stated herein, it
cannot be said that the immoveable property was
used to commit any crime.
28.
I note from the various affidavits placed before the above Honourable
Court that no allegation
is made by any of the deponents thereto that
I was a party to or had any knowledge of any alleged illegal diamond
transactions.
29.
I submit that another important factor to be considered is that the
immovable property was
purchased during March 2012 and since the
improvement thereof toward the end of March 2012, our family has
occupied the immovable
property as our family home. The first alleged
transaction on which that the Applicant relies is alleged to have
taken place on
20 March 2013. That would mean that a year had in fact
passed since purchasing the immovable property and months after we
occupied
the immovable property.
30.
It is my contention that even if the allegations made by the
Applicant is correct (which
is not admitted), the amounts which the
1
st
Respondent is alleged to have received for his
participation in the alleged illegal diamond transactions are
relatively small amounts.
. . .’
None
of those allegations were challenged by the NDPP. In a replying
affidavit filed on behalf of the NDPP it was stated:
‘
The
First Respondent should take note thereof that Chapter 6 proceedings
under POCA is focused, no on wrongdoers, but on property
that has
been used to commit an offence or which constitutes the proceeds of
crime. The guilt or wrongdoing of the owners or possessors
of
property is, therefore, not primarily relevant to the proceedings.
Further and detailed legal argument will be advanced in this
regard
at the hearing of this matter.’
.
. .
The
contents hereof are noted. The Applicant is aware that it is trite in
our law that where parties are married in community of
property, a
joint estate is formed and therefore never intended to intentionally
exclude any party and/or the 10
th
Respondent from the proceedings. Further and detailed legal argument
will be advance at the hearing of this matter.’
[78]
Accordingly, on a proper reading of the papers, it is plain that the
NDPP appeared not to appreciate that it had to place adequate
facts
before the court to satisfy it that the forfeiture sought would be
constitutionally proportionate and, more importantly,
that it bore an
onus in this regard. In consequence, its founding papers approached
the matter as if merely establishing that the
property was an
instrumentality, would, without more, entitle it to a forfeiture
order.  The NDPP rather laconically alluded
to Mr Brooks and was
simply silent about Ms Brooks and the children. There was no attempt
to adduce any evidence that in relation
to all of them and, more
especially Ms Brooks and the two minor children, the forfeiture would
not be constitutionally excessive.
Whilst
it is expected that parents must invoke the interests of their
children in proceedings like these and it is important
that they do
so, the NDPP bears no less a responsibility when the parents have
failed to adequately do so. Here the children were
raised only
obliquely by Ms Brooks. Her raising them, as also the incidence of
use to which the property was put by her husband
in the overall
criminal enterprise, the value of the financial benefit derived from
the offences and the fact that the property
had been acquired by
legitimate means and primarily used for a legitimate purpose as a
family home, brought to the fore, by implication
at least, that a
forfeiture on all the facts of this case would be disproportionate.
Even in reply that went unanswered by the
NDPP.
[79]
The High Court is not only the upper guardian of children, but it is
also obliged to uphold the rights and values of the Constitution.
In
all matters concerning children, including applications for the
forfeiture of property which provides a home or shelter
to children,
it is the duty of the court to consider the specific interests of the
children. In this, the NDPP is expected to assist
the court to the
best of its ability with all relevant information at their
disposal.
[94]
In
that the NDPP failed. There is not even a passing reference in its
papers to the minor children. It approached the matter
as if the
children did not exist and their interests did not feature at all in
the decision the court had been called upon to make.
These failures,
by adults, to articulate properly and emphasise the interests of the
children can hardly be held against the children.
Whilst it may not
be possible to draw a bright line that will separate the permissible
from impermissible forfeitures of property
of innocent owners (in the
position of Ms Brooks) and their children, I am convinced that the
blatant unfairness of this seizure
places it on the unconstitutional
side of that line.
[80]
The High Court appears to have thought it sufficient to exclude from
the operation of the forfeiture order Ms Brooks’
interest in
the property in terms of s 52 of POCA on the basis that her interest
was legally acquired, and that she neither knew
nor had reasonable
grounds to suspect that the property was an instrumentality. In that,
the High Court called in aid the judgment
of Nugent JA in
Mazibuko.
It is important to recognise that in that case the appeal was not
directed against the forfeiture order of the High Court, rather
it
was confined to the order to exclude from the forfeiture order the
ignorant owner’s interest in the property.
Mazibuko
was
thus not concerned with t
he
equitable resolution of the uncomfortable conflicts exposed by this
case, namely,
whether
or not a forfeiture order would in the circumstances of this case be
proportionate and thus constitutionally permissible.
[81]
The facts point to the disproportionate nature of the forfeiture
order in this case. There can be no serious claim that the

confiscation sought by the NDPP is not punitive. Fundamental fairness
prohibits the punishment of innocent people.
I
regard it as axiomatic that persons should not be punished when they
have done no wrong. The unique facts of this case demonstrate
that Ms
Brooks and her children are entitled to the protection of that rule.
‘Improperly used, forfeiture could become more
like a roulette
wheel employed to raise revenue from innocent but hapless owners
whose property is unforeseeably misused, or a
tool wielded to punish
those who associate with criminals, than a component of a system of
justice.’
[95]
[82]
I accordingly hold that the forfeiture order made under s 50(1) of
POCA against the appellants is disproportionate and, in
the result,
the appeal must be upheld. I can find no reason in this case why the
costs should not follow the event.
[83]
In the result:
1.
The appeal is upheld with costs.
2.
The order of the High
Court is set aside and replaced with:
'The
application is dismissed with costs.'
_________________
V M Ponnan
Judge
of Appeal
APPEARANCES:
For
Appellants:

B Pretorius
Instructed
by:
Roelofse
Meyer Inc, Port Elizabeth
Kramer Weihnmann &
Joubert, Bloemfontein
For
Respondent:

E B Ontong
Instructed by:
Office
of the State Attorney, Kimberly
Office
of the State Attorney, Bloemfontein
[1]
Section 252A (1)
of the CPA states: ‘any law enforcement officer, official of
the State or any other person authorised thereto
for such purpose
(hereinafter referred to in this section as an official or his or
her agent) may make use of a trap or engage
in an undercover
operation in order to detect, investigate or uncover the commission
of an offence, or to prevent the commission
of any offence, and the
evidence so obtained shall be admissible if that conduct does not go
beyond providing an opportunity
to commit an offence: Provided that
where the conduct goes beyond providing an opportunity to commit an
offence a court may admit
evidence so obtained subject to subsection
(3).’
[2]
The Diamonds Act
56 of 1986 defines ‘unpolished diamonds’ inter alia, as
diamonds in their natural state, diamonds
which have a small number
of polished facets or diamonds that are provisionally shaped but
require further working.
[3]
Section 26(
a
)
of the Diamonds Act authorises the South African Diamond and
Precious Metals Regulator to issue a diamond dealer’s licence,

which entitles the holder to carry on business as a buyer or seller
of unpolished diamonds. In terms of s 82
(a)
of
the Diamonds Act, it is an offence to contravene s 20 of the Act
(which proscribes the purchase of any unpolished diamond from
a
person other than a dealer - the holder of a diamond dealer’s
licence). This offence is punishable with a fine not exceeding

R250 000 or imprisonment not exceeding 10 years, or both such
fine and imprisonment (s 87(
a
)).
[4]
Mr Patrick Mason
and Mr Kevin Urry, two of the dealers, initially opposed the grant
of the order that the cash of R6.2 million
be forfeited to the
State. However, their opposition to that relief was struck out when
they failed to deliver their opposing
affidavits.
[5]
Mazibuko &
another v National Director of Public Prosecutions
[2009] ZASCA 52; 2009 (6) SA 479 (SCA).
[6]
Compare:
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Co Ltd
[2013]
ZASCA 5; [2013] 2 All SA 251 (SCA).
[7]
National
Director of Public Prosecutions & another v Mohamed NO &
others
[2002] ZACC 9
;
2002 (2) SACR 196
(CC);
2002 (4) SA 843
(CC) paras 16 and 17.
[8]
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd;
National Director of Public Prosecutions v 37 Gillespie
Street
Durban (Pty) Ltd & another; National Director of Public
Prosecutions v Seevnarayan
2004 (2) SACR 208
(SCA) para 21.
[9]
Cook Properties
fn
8 above paras 31-32.
[10]
National
Director of Public Prosecutions v Parker
2006 (1) SACR 284
(SCA) para 30.
[11]
Cook Properties
fn 8 above para 32.
[12]
Van Der Burg &
another v National Director of Public Prosecutions & another
[2012]
ZACC 12
;
2012 (2) SACR 331
(CC) para 25. Section 25(1) of the
Constitution reads:
‘
No
one may be deprived of property except in terms of the law of
general application, and no law may permit arbitrary deprivation
of
property.’
[13]
National
Director of Public Prosecutions v Van Staden & others
2007 (1) SACR 338
(SCA).
[14]
Van
Staden
para
8;
Mohunram
& another v National Director of Public Prosecutions &
another (Law Review Project as Amicus Curiae)
[2006] ZASCA 12
;
2007 (4) SA 222
(CC) para 74 per Van Heerden AJ, para 121 per
Moseneke DCJ.
[15]
Van Der Burg
fn
12 above para 25. Section 12(1)
(e)
of
the Constitution provides that everyone has the right to freedom and
security of the person, which includes of the right not
to be
treated or punished in a cruel, inhuman or degrading way.
[16]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C.
[17]
Wightman t/a JW
Construction v Headfour (Pty) Ltd & another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13.
[18]
Section 83
concerns offences relating to trading in diamonds. Section 83
(b)
provides that any person who contravenes s 44 (using any premises as
a diamond trading house without the requisite licence and

registration of that premises as a diamond trading house under the
Act) is guilty of an offence.
[19]
Parker
fn 10 above para 39.
[20]
Parker
fn 10 above para 34.
[21]
Parker
fn 10 above paras 34 and 39.
[22]
Parker
above para 28.
[23]
Prophet v
National Director of Public Prosecutions
[2006] ZACC 17
;
2006 (2) SACR 525
(CC);
2007 (6) SA 169
(CC) para 58.
[24]
Van Der Burg
fn
12 above para 58.
[25]
National
Director of Public Prosecutions v Vermaak
[2008] ZAGPHC 86
;
2008 (1) SACR 157
(SCA) para 11. In
Cook
Properties
fn 8 above para 18 it was held that forfeiture operates as both a
penalty and deterrent.
[26]
Mohunram
fn 14 above paras 126 and 145;
Van
Der Burg
fn 12 above para 54.
[27]
Mohamed
fn
7 above paras 14-15.
[28]
Vermaak
fn 25 above para 11.
[29]
Prophet
fn
23 above para 68
[30]
Items 27 and 32 of
Schedule 1 to POCA.
[31]
Cook Properties
fn 8 above para 18.
[32]
Vermaak
fn 25 above para 12.
[33]
Judgment of Ponnan
JA para 66.
[34]
Section 91(1) of
the Diamonds Act.
[35]
Mohunram
fn 14 above para 152.
[36]
Mazibuko
fn
5 above paras 52-55.
[37]
Mazibuko
fn 5 above para 54.
[38]
Cook Properties
fn 8 above para 29.
[39]
Prophet
fn 23 above para 69.
[40]
Van Der Burg
fn
12 above paras 62-63, 65 and 68-69.
[41]
Mohunram
fn 14 above para 75.
[42]
R (Mahmood) v
Secretary of State for the Home Department
[2001] 1 WLR 840.
[43]
First National
Bank of SA t/a West Bank v Commissioner, South African Revenue
Service & another; First National Bank of SA
Ltd t/a West Bank v
Minister of Finance
[2002] ZACC 5
;
2002
(4) SA 768
(CC) para 63.
[44]
AA Onderlinge
Assuransie-Assosiasie Bpk v De Beer
1982 (2) SA 603
(A) at 614H-615B;
Cooper
& another NNO v Merchant Trade Finance Ltd
2000 (3) SA 1009
(SCA) para 7.
[45]
Van Der Burg
fn 12 above.
[46]
See
Cook
Properties
fn
8 above para 12.
[47]
See
Cook
Properties
above para 15.
[48]
See
Cook
Properties
above para 21.
[49]
Prophet
fn
23 above.
[50]
Mohunram
fn
14 above para 44.
[51]
See
Cook
Properties
above paras 6-32; See
Prophet
above paras 10-17 and
Parker
fn 10 above para 14.
[52]
See
Cook
Properties
above para 32.
[53]
National
Director of Public Prosecutions & another v Mohamed NO &
others
[2002] ZACC 9
;
2002 (2) SACR 196
(CC);
2002 (4) SA 843
(CC) para 17.
[54]
Bennis
v Michigan
[1996] USSC 19
;
516
U.S. 442
(1996) at 447.
[55]
See
Cook
Properties
above
para 21.
[56]
See,
inter alia, Ronald F. Labedz ‘Innocents Beware: Has Bennis v
Michigan Made Assets Forfeiture Too Easy?’ Northern
Illinois
University Law Review (1997) issue 2 at 268-376; Paul Dryer ‘Bennis
v Michigan: Guilty Property-Not People-Is
Still the Focus of Civil
Forfeiture Law’ (1997)
University
of Toledo Law Review
issue
2 vol 28; M. Kathyn Wagner ‘Forfeiting the Foundation of
American Jurisprudence: Bennis v Michigan’ (1996)
University
of Cincinnati Law Review
issue 1 vol 66.
[57]
See
Bennis
abov
e
at 459.
[58]
In
Mohunram
fn 14 above, the premises were used for operating gambling machines
without a licence.
In
Van Der Burg
fn 12 above, the property was utilised as an
illegal shebeen.
In
Parker
fn 10 above, the property was used to conduct a trade
in drugs.
In
Prophet
fn 23 above, the property was adapted and equipped
for the manufacture of a drug.
In
Mazibuko
fn 5 above, the property was used for the
manufacture of drugs.
[59]
See
Cook
Properties
fn 8 above para 14.
[60]
Section
25(1) of the Constitution of the Republic of South Africa Act 108 of
1996.
[61]
Mkontwana
v Nelson Mandela Metropolitan Municipality & another
;
Bisset
& others v Buffalo City Municipality & others
;
Transfer
Rights Action Campaign & others v MEC
,
Local
Government and Housing, Gauteng, & others
(
KwaZulu-Natal
Law Society & Msunduzi Municipality as Amici Curiae
)
2005 (1) SA 530
(CC) para 35; See also
First
National Bank of SA Limited t/a Wesbank v Commissioner for the South
African Revenue Services
fn
43 above.
[62]
See
Mohunram
fn 14 above para 120.
[63]
See
Mohunram
above
para
121.
[64]
See
Mohunram
above
para
58.
[65]
See
Prophet
fn 23 above, paras 58, 63 and 68.
[66]
See
Mohunram
above para 72.
[67]
See
Mohunram
above para 124.
[68]
Section
87 of the Diamonds Act headed ‘Penalties’, provides:
Any
person who is convicted of an offence under this Act shall be
liable-
(a)
in the case of an offence referred to in section 82 (a) or (b), to a
fine not exceeding R250 000, or to imprisonment
for a period not
exceeding ten years, or to both such fine and such imprisonment;
(b)
in the case of an offence referred to in section 82 (c), 83 (a) or
84 (a), to a fine not exceeding   R100
000, or to
imprisonment for a period not exceeding four years, or to both such
fine and such imprisonment;
(c)
in the case of an offence referred to in section 83 (b) or 84 (b),
to a fine not exceeding R50 000, or to imprisonment
for a period not
exceeding two years, or to both such fine and such imprisonment; and
(d)
in the case of an offence referred to in section 82 (d), 83 (c), (d)
or (e), 84 (c) or (d), 85 or 86, to a fine not
exceeding R25 000, or
to imprisonment for a period not exceeding twelve months, or to both
such fine and such imprisonment.
[69]
Section
91 headed ‘Forfeiture’ provides:
(1)
Notwithstanding anything to the contrary in any other law contained,
any money or property which a person has paid or
delivered to an
inspector or a member or agent of the South African Police in
pursuance of an agreement for the delivery or acquisition
of
unpolished diamonds, shall upon the conviction of that person of an
offence under this Act in connection with such an agreement
be
forfeited to the State.
(2)(a)
A forfeiture in terms of subsection (1) shall not affect any right
which any person other than the convicted person
may have to the
property forfeited if he satisfies the court concerned-
(i)
that he did not know that such property was being used or would be
used for the purpose of or in    connection
with the
commission of the offence in question; or
(ii)
that he could not prevent such use.
(b)
Paragraph (a) shall not apply to any money so forfeited.
(3)
The provisions of section 35 (4) of the Criminal Procedure Act, 1977
(Act 51 of 1977), shall mutatis mutandis apply in respect
of a right
referred to in subsection (2), and for the purposes of such
application-
(a)
a reference in the said section to the court shall be construed as a
reference to the court which has convicted the
person referred to in
subsection (1); and
(b)
a reference in the said section to a declaration of forfeiture shall
be construed as a forfeiture in terms of subsection
(1).
[70]
See
Cook
Properties
fn
8 above para 18.
[71]
See
Cook
Properties
above
para 25.
[72]
Cook Properties
above
para 26.
[73]
Mazibuko
fn
5 above para 48.
[74]
See
for example
Prophet
v National Director of Public Prosecutions
2007 (6) SA 169
(CC);
Van
Der Burg & another v National Director of Public Prosecutions
and another
2012 (2) SACR 331
(CC);
National
Director of Public Prosecutions v Parker
2006 (3) SA 198 (SCA).
[75]
By
way of example,
Bennis
(at
465) refers to
United
States
v
One Assortment of 89 Firearms
[1984] USSC 39
;
465 U.S. 354
(1984) at 364 (confiscation of unregistered shotguns);
and
C
J Hendry Co.
v
Moore
318 US 133 (1943)
(seizure of fishing nets used in violation of state fishing laws).
[76]
Christian
Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC) para 53.
[77]
Du Toit v The
Magistrate & others
[2016] ZASCA 15
;
2016 (2) SACR 112
(SCA) para 11-12.
[78]
Centre for
Child Law v Governing Body of Hoërskool Fochville & another
[2015] ZASCA 155
;
[2015] 4 All SA 571
(SCA) para 23.
[79]
Director of
Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
[2009] ZASCA 8
;
2009 (2) SACR 130
(CC) para 130;
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
; ;
2008 (3) SA 232
(CC) paras 14-26.
[80]
See
DPP,
Transvaal v Minister of Justice and Constitutional Development
above para 72.
[81]
See
S
v M
fn 80 above para 14.
[82]
See
S
v M
above.
[83]
See
Van
Der Burg
fn
12 above para 75.
[84]
See
Van
Der Burg
above
para 74.
[85]
See
Van
Der Burg
above
para 69.
[86]
See
Van
Der Burg
above
para 70.
[87]
See
Van
Der Burg
above
paras 71-72.
[88]
See
Hoërskool
Fochville
fn 79 above para 68.
[89]
See
Hoërskool
Fochville
above para 20.
[90]
Judgment
of Schippers AJA para 50-52.
[91]
See
Mohunram
fn
14 above para 130.
[92]
See
Hoërskool
Fochville
fn 79 above para 18. See also
Pillay
v Krishna & another
1946
AD 946
at 952-953, where Davis AJA stated:
‘
[I]n
my opinion, the only correct use of the word
onus
is
that which I believe to be its true and original sense, namely the
duty which is cast on a particular litigant, in order to
be
successful, of finally satisfying the court, that he is entitled to
succeed on his claim, or defence, as the case may be,
and not in the
sense merely of his duty to adduce evidence to combat a
prima
facie
case
made by his opponent.’ See also
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A) at 548.
[93]
See
Mohunram
above para 75.
[94]
Van
Der Burg
fn
12 above para 68.
[95]
Bennis
v Michigan
[1996] USSC 19
;
516
U.S. 442
(1996) at 456.