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[2021] ZANCHC 68
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Moore and Others v National Director of Public Prosecutions (628/2020) [2021] ZANCHC 68 (28 December 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
628/2020
Heard:
21/10/2021
Made
available:
28/12/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
HENRIETTA
CORNELIA
MOORE
1
st
Applicant
CHRISTOPHER
LEY
MOORE
2
nd
Applicant
ROBERT
JORGE MENDONCA
VELOSA
3
rd
Applicant
THE
CM PROPERTY
TRUST
4
th
Applicant
IPROTECT
TRUSTEES
5
th
Applicant
and
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Mamosebo
J
[1]
This is an application for leave to appeal to the Supreme Court of
Appeal (SCA), alternatively,
the Full Bench of the Northern Cape
Division, against the whole of my judgment and orders granted on 30
July 2021 in terms of s
50(1)(b) of the Prevention of Organised Crime
Act
[1]
(POCA), in terms of which
two immovable properties, namely, Erf [....] Barkley West, also known
as 14 S[....] Street and Erf [....]
Barkley West, also known as 16
S[....] Street, Barkley West (the properties), were declared forfeit
to the State. The application
is opposed by the Director of Public
Prosecutions, Northern Cape.
[2]
The applicants filed the Notice of Application for Leave to Appeal
with the Registrar
of this Court on 23 August 2021. Whereas it is
settled that the grounds of appeal must be clearly outlined and
succinct, the applicants’
grounds of appeal were presented in a
form of argument. This is impermissible. See
Songono
v Minister of Law and order
[2]
.
[3]
The applicants essentially rely on the following grounds of appeal.
They contend that
the Court erred:
3.1 In
its finding that the statement of Mr Michael Bareng Raadt should be
admitted as evidence;
3.2 In
its finding that the disputes of fact raised by them are not genuine;
3.3 In
finding that Mrs Moore had no right in selling the A[....] property
without the involvement of the executrix;
and
3.4 In
not having due regard to the approach regarding the interpretation of
contracts and documents.
[4]
Applications for leave to appeal, such as the present, are governed
by
section 17(1)
of the
Superior Courts Act 10 of 2013
, which
provides that an applicant must demonstrate to the Court that there
are reasonable prospects that the appeal would succeed.
Our courts
have already interpreted the word “would”, found in
section 17(1)(a)(i)
of the Act, as indicative of some form of
certainty or realistic chance of success
[3]
.
The applicants brought this application in terms of
s 17(1)(a)(i)
alleging reasonable prospects of success.
Statement
of Raadt: Hearsay evidence
[5]
The main judgment has, in my view, sufficiently disposed of the
contention that Mr
Raadt’s statement obtained on 06 May 2016
does not constitute hearsay evidence. The statement is annexed to the
NDPP’s
preservation application and contains the following
averments which were admitted by Ms Moore or not seriously disputed:
5.1 Mr
Raadt leased 24 A[....] Way, Royldene, Kimberley;
5.2 He
laid criminal charges against Ms Moore with the Commercial Crime
Unit;
5.3 Mr
Raadt attended Toshiba offices, where he met Ms Moore who offered to
sell the A[....] property to him for
R4.7 million on 13 January 2014;
upon his visit to the property he made a counter offer of R3.9
million which she accepted. They
orally agreed on rent-to-buy terms
and he paid a deposit of R20,000.00 before taking occupation of the
property and continued to
pay a monthly rental fee of R20,000.00;
5.4 On
that same day, 13 January 2014, he paid a deposit of R20,000.00.
5.5 Mr
Raadt suggested that Ms Moore consults an attorney to draw up a
contract for them;
5.6 The
contract was drawn by a Mr Rudolph Van Niekerk, her partner;
5.7 Ms
Moore sold Mr Raadt R10,000.00 pre-paid electricity coupons;
5.8 All
the amounts and dates of payment to Ms Moore’s bank account are
captured in para 8 of the affidavit.
The amounts were confirmed by Mr
Jacobus Smit, a Senior Financial Investigator attached to the Asset
Forfeiture Unit and were conceded
by Ms Moore.
5.9 Ms
Moore used the cash paid by Mr Raadt to purchase the two properties.
Smit considered the deposits in her
bank statement and confirmed that
the amounts comprised solely of Mr Raadt’s payments.
5.10 Mr Raadt
intimated that he discovered for the first time, when he attended the
municipality offices to purchase electricity
coupons, that Ms Moore
was not the owner of the properties and that the electricity has been
blocked for a period of over five
years;
5.11 Mr Raadt has
paid R1,480,000.00, which is not disputed;
5.12 Mr Raadt has
approached the deceased’s children and has telephonically been
in contact with the Administrators
of the Estate at Sanlam in Cape
Town, and one Ms Wanda Visser who advised him not to make any further
payments to Ms Moore.
[6]
Ms Van Dyk, counsel for the NDPP, correctly argued, in my view, that
the averments
contained in Raadt’s affidavit are mainly not
disputed by the applicants. The real dispute is whether Ms Moore was
entitled
to sell the property. Ms Van Dyk submitted that the genesis
of the NDPP’s application is the money that was paid by Mr
Raadt
to Ms Moore that consequently enabled her to purchase the two
properties. It is the entire capital that the NDPP contended was
proceeds of her unlawful activities. What manifested into a POCA
investigation was Mr Raadt’s complaint to the police by way
of
affidavit.
[7]
Mr Pienaar, counsel for the applicants, argued that the affidavit by
Mr Raadt ought
not to have been admitted. I disagree. Sec 34(1)(a)(i)
of the Civil Proceedings Evidence Act 25 of 1965 stipulates:
“
(1)
In any civil proceedings where direct oral evidence of a fact would
be admissible, any statement made by a
person in a document and
tending to establish that fact shall on production of the original
document be admissible as evidence
of the fact, provided –
(a)
The person who made the statement either –
(i)
had personal knowledge of the matters dealt with in the
statement.”
This
section, supports my admission of Mr Raadts’ statement because
he had personal knowledge of the transactions between
himself and Ms
Moore.
[8]
Mr Pienaar further relied on s 34(3) of the Civil Proceedings
Evidence Act which provides:
“
(3)
Nothing in this section shall render admissible as evidence any
statement made by a person interested at a
time when proceedings were
pending or anticipated involving a dispute as to any fact which the
statement might tend to establish.”
[9]
At the risk of repetition, Mr Raadt made the contentious statement to
the police after
discovering that Ms Moore is not the owner of the
property he was buying, having already paid a huge sum of money to
her. The statement
was admitted in evidence in the interests of
justice. It follows that this ground of appeal must fail.
Disputes
of fact not genuine
[10]
Para 15 of the main judgment dealt not only with the question of
whether or not disputes of fact
existed but also whether the
interpretation of the 2013 redistribution agreement against the
backdrop of the argument made on behalf
of Ms Moore that the 2013
redistribution agreement entitled Ms Moore to deal with the property
as she deemed fit. Which was not
the case.
[11]
Mr Pienaar argued that the Court erred in finding that the disputes
of fact raised by the applicants
were not genuine and in rejecting Ms
Moore’s version regarding the interpretation of the
redistribution agreement. Paras
15, 20, 21 and 22 of the main
judgment addresses not only the interpretative question of the last
Will and Testament but also of
the redistribution agreement. At para
19 of the judgment reference is also made to the submission by Mr
Pienaar, relying on
Loomcraft
Fabrics CC v Nedbank Ltd
[4]
,
where he contended that Ms Moore had made an error in interpreting
the provisions of the redistribution agreement but that that
did not
mean she had the intention to defraud Raadt. Consequently, the
purported disputes of fact were not genuine and were indeed
soluble
on the papers as they stand. I am unpersuaded that I erred on this
score.
Sale
of property without the involvement of the executrix
[12]
Mr Pienaar repeated the argument that was made during the main
hearing that Ms Moore was entitled
to sell 24 A[....] Way to Mr
Raadt. The argument ignores the following pertinent issues. First,
that Mr Diedericks, the testator
and Ms Moore’s life partner,
left his Last Will and Testament expressing his wishes about how the
same property was to be
dealt with
[5]
and in these terms:
“
1.3
aan my vriendin, Henrietta Cornelia Moore, die volgende:
1.3.1 My aandeel in
die woonhuis geleë te Appianweg24, Royldene, Kimberley.
1.3.2 My aandeel in
die woonhuis geleë te Merlin Close 7, Camelot.
Die bemakings kragtens
klousules 1.3.1 en 1.3.2 is
onderhewig aan die voorwaarde dat my
gemelde vriendin, ‘n bemaaksom aan my boedel sal betaal
gelykstaande aan die geswore
waardasie van my aandeel in die gemelde
woonhuise, soos bepaal vir boedelberedderingsdoeleindes. Indien my
gemelde vriendin nie
die voorwaarde soos hierbo uiteengesit aanvaar
nie, sal die bemakings kragtens klousules 1.3.1 en 1.3.2 aan haar
verval en bemaak
ek die gemelde bates aan my kinders, Jacob Le Roux
Diedericks (gebore 18.10.1984) en Christelle Diedericks (gebore
(04.04.1979)
onderhewig aan die lewenslange vruggebruik van my
vriendin, Henrietta Cornelia Moore.”
[13]
Secondly, Ms Moore was removed by the Master as executrix based on
complaints received by the
Master against her. On 13 January 2014,
when she offered to sell 24 A[....] Way, not only was she no longer
the executrix but the
bequest was subject to this condition: “‘
n
bemaaksom aan my boedel sal betaal gelykstaande aan die geswore
waardasie van my aandeel in die gemelde woonhuise, soos bepaal
vir
boedelberedderingsdoeleindes
.” (Ms Moore will pay a bequest
to the deceased’s estate equal to the sworn valuation of his
share in the said dwellings,
as determined for administration for
estate administration purposes). This was not the case.
[14]
The main judgment has already dealt with the 2013 redistribution
agreement to the extent that
Ms Moore was, according to Clause 3 of
the said agreement, permitted to rent or market the properties whilst
the sale of the properties
was to take effect either after or
simultaneously with the transfer of the property.
[6]
Transfer of the A[....] property only occurred in 2018.
[16]
Having considered each of the grounds raised by the applicant, I am
of the view that there are
no reasonable prospects that another court
would come to a different conclusion. In the result, the application
for leave to appeal
stands to fail.
[17]
The following order is made:
The
application for leave to appeal is dismissed with costs.
________________
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicants:
Adv. C D Pienaar
Instructed
by:
Jacobs Fourie Inc
Mervyn
Joel Smith
For
the Respondent: Adv.
L Van Dyk
Instructed
by:
The State Attorney
Kimberley
[1]
121
of 1998
[2]
1996
(4) SA 384
(E) at 385C – E
[3]
The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325
(LCC) at para 6; MEC for Health, Eastern Cape v Mkhitha and
Another[2016] ZASCA 176 (25 November 2016) at paras 16-17 and
Notshokovu v S
[2016] ZASCA 112
(7 September 2016) at para 2
[4]
[1995] ZASCA 127
;
1996
(1) SA 812
(A0 at 822G
[5]
See para 5 of the main judgment.
[6]
See
paras 12, 13 and 14 of the main judgment.