National Director of Public Prosecutions v Ngunge (1792/19) [2021] ZANCHC 33 (30 July 2021)

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[2021] ZANCHC 33
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National Director of Public Prosecutions v Ngunge (1792/19) [2021] ZANCHC 33 (30 July 2021)

Reportable/
Not
reportable
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
Case No: 1792/19
Heard On:
29/07/2021
Delivered:
30/07/2021
In the matter
between:
NATIONAL DIRECTOR
OF
PUBLIC
PROSECUTIONS
Applicant
AND
ELIYA MAGALUSI
NGUNGE
Respondent
Coram:
MOSES AJ
APPLICATION
FOR LEAVE TO APPEAL JUDGMENT
MOSES AJ
Introduction
1.
This is an application for leave to appeal
my judgment of 28 May 2021, in the above matter. The application was
heard by me on Thursday
morning 29 July 2021, and after hearing the
parties I adjourned the matter to consider their submissions,
pursuant whereto I will
give my judgment, which I hereby do.
Brief
Background
2.
On or about 21 January 2018 the Respondent
in this matter was arrested together with a truck driver, on Mr
Tsotetsi, and subsequently
charged in the Upington Magistrate’s
Court with theft. He was arrested by members of the South African
Police Services (SAPS) in
circumstances where he was found with a
motor vehicle – the Isuzu – parked next to the road, busy
uploading certain boxes, later
discovered to be containing packets of
soup from a truck onto the Isuzu, which was his vehicle.
3.
Upon  searching the vehicle the
members of SAPS also found cash in the amount of R 15 000.00 in
the vehicle. According to
the Respondent the cash found in his
possession was going to pay for the stock that was delivered by the
truck driver as per agreement.
Both the money and the Isuzu motor
vehicle were confiscated by SAPS.
4.
As it turned out, the criminal case against
both of them, the Respondent and the truck driver, was eventually
struck from the court
roll of the Upington Magistrate’s Court, in
and around November 2018.
5.
Before that however, in and around May
2018, when the two of them appeared in that Court, on these criminal
charges, an application
was brought, and recorded on behalf of the
Respondent – one of the accused in that matter, for the return and
delivery of his motor
vehicle. The prosecutor in the matter placed on
record that there was no objection to the said application. The
presiding magistrate
subsequently ordered that his (Respondent’s)
vehicle be returned to him. It is common cause that the said vehicle
was never returned
to the Respondent to date hereof, and his cash
seized at the time is also still in police custody.
6.
It is also common cause that subsequently
the Applicant herein brought the preservation application and later
the forfeiture application,
in respect of the Isuzu vehicle and the
cash (the property) in terms of the Prevention of Organised Crime
Act, 1998 (Act No 121 of
1998) (POCA), in this Court. I referred to,
and dealt with these applications in my afore-stated judgment.
7.
After having read the papers filed of
record and subsequently having heard counsel on behalf of the
Applicant and the Respondent,
having reserved judgment at the time, I
subsequently gave judgment and made the following order.
1.
“
The application is dismissed with costs.
2.
The Applicant is ordered to return and/or
cause to return, the Respondent’s  property which includes the
R 15 500.00 cash
and the Isuzu motor vehicle, an Isuzu
KB
300 TDI Single Cab vehicle with registration and letters BVV452NC,
seized and held by the South African Police Service under Upington
CAS 434/01/2018, forthwith, and not later than five(5) days of the
date of this judgment.”
8.
It is this judgment and order that form the
subject matter of this application for leave to appeal.
The Application
for Leave to Appeal
9.
The
applicant thereafter duly filed and served its application for leave
to appeal on or about 2 June 2021, setting out the various
grounds
upon which it relies that another court “could reasonably have come
to a different conclusion…” and that “… the
Applicant has
reasonable prospects of success on appeal.”
[1]
10.
Subsequently
the Respondent duly filed and served his “Notice to Oppose
Applicant’s Leave to Appeal”, dated 7 June 2021, setting
out his
various grounds of opposition, inter alia, “that no other court
(sic) would come to a different conclusion based on the
reasons given
…” and “…that the applicant has no prospects of success on
appeal”.
[2]
11.
On
or about 15 July 2021 the Applicant duly filed and served its
Practice Note, together with its Heads of Argument, setting out
elaborately
its respective grounds of appeal and submissions to
substantiate, and in support of, its application for leave to
appeal.
[3]
12.
On
or about 22 July 2021 the Respondent duly filed and served his Heads
of Argument setting out his grounds of opposition and submissions
in
support of his contention that the application for leave to appeal
ought to be dismissed with costs.
[4]
13.
The Court expressed its gratitude to the
parties for these Heads of Argument and their oral submissions in
Court on Thursday 29 July
2021.
A summary of
the essence of the grounds of Appeal and the grounds of opposition
14.
The essence of the Applicant’s
application for leave to appeal seems to me to be threefold:
14.1
that the Respondent’s version was akin to
abare denial, that he did not specifically refer to and/or pleaded
the existence of the/
a Court order by the Upington Magistrate’s
Court, and that the said Court order was in any event no bar to the
institution of these
proceedings under POCA and this Court coming to
a decision notwithstanding the said Court order.
14.2
The
only explanation given under oath by the Respondent was that the cash
found in his possession was going to pay for the stock that
was
delivered by the truck driver “as per agreement”.
[5]
14.3
In the event that it is alleged that the
Respondent acted in the bona fide belief that he was transacting
lawfully with the truck
driver at the time, he attracted an onus –
in terms of the so-called “innocent owner defence_” in terms of
section 52(2A) of
POCA, which he then was required to discharge, on a
balance of probabilities, but which he failed to do in the
circumstanced of this
case.
15.
The Respondent’s case in essence seems to
be that the Applicant failed to discharge the onus which was on it:
15.1
to proof on a balance of probabilities that
the Respondent’s version is not probable;
15.2
hence
it did not proof on a balance of probabilities that the Isuzu and
money were used as an instrument for unlawful activities “…because
by implication the Applicant is saying that simply because the
Respondent bought along the road on 21 January 2018 was therefore
committing an illegal activity”;
[6]
and
15.3
the
court order of/by the Upington Magistrate’s Court, although not
pleaded specifically, formed part of the evidence provided by
the
Applicant itself, in its court papers, that it constitutes a valid
and binding order on the Applicant, and in this regard distinguish
the
case
referred to, and relied on by the Applicant, of
Ismael
[7]
; from this case, (inasmuch
as the Applicant
in
casu
is/was a party to those court proceedings and the order made by
Upington Magistrate’s Court in May 2018, whereas the NDPP was found
not to be a party to those orders made and referred to by Franklin AJ
in the said Ismael-case
[8]
.
16.
Hence the Applicant’s application for
leave to appeal falls to be dismissed with costs.
The Issues For
Determination
17.
The crisp issues for determination, to my
mind, therefore are:
17.1
Was/is the Respondent’s version so “far-fetched or clearly
untenable”, so as to be rejected as false,
and hence improbable?
17.2
Did the Respondent, based on his version and the facts
in
casu
, attracted an
onus
,
as a so-called “innocent owner” by virtue of the provisions of
Section 52(2A) of POCA, and therefore had to discharge that
onus
on a balance of probabilities? and
17.3
What is the status of that Upington Magistrate’s Court order dated
11 May 2018, and is/was it binding on
the Applicant?
18.
With regards to the first issue (in 17.1
above), I have expressed my views and furnished the reasons for that
in my judgment, and
hence it need not be repeated in here, save to
add that whilst I agree that the circumstances in which this
transaction had taken
place might seem “strange” and would
certainly be regarded as suspicious by members of SAPS especially, I
could not, and cannot,
find as untrue the explanation given by the
Respondent, in this regard.
19.
With regards to the second issue (in
paragraph 17.2 above) I tend to disagree with the submissions
advanced by Ms van Dyk on behalf
of the Applicant, for the following
reasons:
19.1
the Respondent
in casu
did not bring any application as envisaged in section 52(2A) of POCA;
19.2
the Respondent,
qua
Respondent resisted and opposed the forfeiture application,
initiated, launched and prosecuted by and on behalf of the Applicant,
in terms of section 48 read with section 50 of POCA, and hence the
Applicant was, and remains burdened with the
onus
of proving on a balance of probabilities that it has made out its
case for the relief it sought;
19.3
hence there was no
onus
placed on the Respondent by virtue of section 52(2A) “
to
proof his innocence
” so to speak.
20.
With regards to the third issue (in 17.3
above) I similarly tend to disagree with the contentions and
submissions by and on behalf
of the Applicant in this regard, for the
reasons stated in my judgment. I add the following more explicitly in
this regard:
20.1
Section 50(4) of POCA refers in relevant parts, to “…
the
outcome of criminal proceedings
…”
It does not refer to an order and/or a decision of a court of law. If
it were to be interpreted as such, meaning to include
an order and/or
a decision of a court of law, it would, to my mind, have
constitutional ramifications and/or implications, more specifically
with regards to the status, if any of such a court order, as
in
casu
.
20.2
If regard is had to Chapter 8 of our Constitution, more particularly
section 165(5)
[9]
read with
section 166(d) thereof
[10]
then it seems to me that a court order such as
in
casu
cannot be, and is not trumped by any provision in POCA, that it is
valid and binding as set out in s165(5) until such time that it
–
the order – is validly and legally set aside;
20.3
the court order issued by the Upington Magistrate’s Court is/was
such an order, which was/is valid and binding
on “…
all
persons to whom and organs of state to which it applies…
”;
and
20.4
As such that court order applies to, and is valid and binding on the
prosecutor at the time, representing and
performing his/her functions
under the authority of the NDPP, the NDPP itself, the SAPS as well as
the Respondent, as an accused
person before that court at the time,
to date hereof.
21.
I
was also referred to the case of NDPP v Swart
[11]
in support of the contention that a court order for the return of a
motor vehicle in Magistrate’s Court proceedings, is not to
be
regarded as such in circumstances where the parties (the Prosecutor
and Defence) were
ad
idem
about the return of the vehicle, and the Magistrate’s order
pursuant thereto not constituting a “
decision
”
which could bar an application for forfeiture and/or a forfeiture
order in terms of s48 of POCA.
22.
I do not express any opinion about the case
and/or the judgment of that court at this stage, save to say upon a
reading thereof, the
facts clearly differ from the facts and
circumstances of this case.  There the accused was found in
unlawful possession of abalone
in his car. He pleaded guilty, was
convicted and sentenced to a fine. That court found, that in the
circumstances of that case, that
motor vehicle was clearly an
instrumentality of the offence, and declared the motor vehicle
forfeited to the State.
23.
In
the circumstances, having said the above, the guiding principle in
applications of this nature was succinctly summarised by the
Supreme
Court of Appeal in
S
v Mabena and Another
[12]
as
follows:
“
It
is the right of every litigant against whom an appealable order has
been made to seek leave to appeal against the order. Such an
application should not be approached as if it is an impertinent
challenge to the Judge concerned to justify his or her decision.
A court from which leave to appeal is sought is called upon merely to
reflect dispassionately upon its decision, after hearing argument,
and decide whether there is a reasonable prospect that a higher court
may disagree.
”
24.
This Court, upon reflection is of the view,
given the issues referred to above, that there is a reasonable
prospect that another,
higher court, may disagree with its judgment.
25.
In the event, the following order is hereby
made:
IT
IS ORDERED
The Application for
leave to appeal to the Full Bench of this Division is granted.
There is no order as
to costs.
J.J. MOSES
ACTING JUDGE OF
THE HIGH COURT
NORTHERN
CAPE DIVISION, KIMBERLEY
For the
Applicant:         Ms Van Dyk
Instructed
by:
State Attorney
For the
Respondent:      Mr Jacobs
Instructed
by:
Kenneth Juries &
Associates
[1]
See
Applicant Notice of Application for leave to Appeal, dated 2 June
2021.
[2]
See
Respondent’s Notice of Opposition, dated 7 June 2021.
[3]
See
Applicants Practice Note and Heads of Argument dated and signed 15
July 2021.
[4]
See
Respondent’s Heads of Argument dated and signed 22 July 2021.
[5]
See
Para 56 of Applicants Head’s of Argument – HoA; Para 4.1 of
Respondent’s HoA, P5.
[6]
Para
2.1 and 2.2 of Respondent’s HoA.
[7]
The
unreported judgment of NDPP v Ismael, Faizel Mamade, Witwatersrand
Local Division, Case No: 08/18360, delivered by Franklin
AJ on or
about December 2008, a copy whereof is annexed as item no. 6, under
“Case Law” of the Applicant’s Heads of Argument).
[8]
Paras
2.3, 2.4 and 3 of the Respondent’s Heads of Argument).
[9]
It
reads: “(5) An order or decision by a court binds all persons to
whom and organs of state to which it applies”.
[10]
It
reads “
166.
The courts are-
- (d) The Magistrate’s Courts…
”)
[11]
2005(2)
SACR 186 (SECLD)
[12]
para
[22]
2007 (1) SACR 482
(SCA))