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[2021] ZAECELLC 7
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National Director of Public Prosecution v Vumiso (1242/2020) [2021] ZAECELLC 7 (23 March 2021)
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL
DIVISION)
CASE
NO: 1242/2020
Matter
heard on: 11/03/2021
Judgment
delivered on: 23/03/2021
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant
and
ASISIHLE
VUMISO
Respondent
JUDGMENT
SMITH
J:
1)
The applicant seeks confirmation of a
provisional preservation order granted on 10 December 2020. The
application concerns a sum
of R50 000, which the applicant contends
is the proceeds of unlawful activities, namely the fraudulent sale of
a vehicle. The applicant
contends that the disposal of the vehicle
amounted to money laundering.
2)
The following facts were either common
cause or have not been disputed by the respondent. On 2 June 2020,
the respondent took a
vehicle belonging to one Mr. Bozo, without his
knowledge or consent, and drove it from Mthatha to East London. There
she presented
the vehicle for sale to Mr. Mufudza, (the complainant
in the criminal case), holding out that she was either the owner of
the vehicle
or otherwise authorised to sell it. He offered to buy the
vehicle for R50 000, which offer the respondent accepted. Mufudza
subsequently
transferred the aforesaid sum into the respondent’s
Capitec Bank account. The respondent thereafter effected various
transactions
from that account and transferred some R40 000 into her
other bank account. Mufudza subsequently laid a criminal charge of
fraud
and theft against the respondent on 11 June 2020. It was on the
basis of that case that the Asset Forfeiture Unit obtained the
provisional preservation order in terms of section 38 of the
Prevention of Organized Crime Act, No. 121 of 1998 (POCA).
3)
It is perhaps instructive to mention that
on her own version, the respondent effectively admitted to complicity
in fraudulent conduct.
She explained that the owner of the vehicle,
namely Bozo, is a former boyfriend. She had driven his vehicle to
East London and
parked it in the parking area at St Dominic’s
Hospital. She then called Bozo and told him that the vehicle was
parked there
and that once he gets to East London he should arrange
to fetch the keys from her. After a few days had elapsed without Bozo
calling
her, she got concerned about the safety of the vehicle and
decided to approach Mufudza to take possession of the vehicle “for
safekeeping”. After she had told the latter how she came to be
in possession of the vehicle, he volunteered to take the vehicle
“off
her [my] hands”.
4)
Regarding how the transaction came about,
she said the following:
“
The
complainant then tendered to pay me R50 000 to rid the vehicle from
me. As tempting is this offer was, I then accepted it. And
that is
how the amount of R50 000 ended up in my Capitec Bank account. I did
not in any way whatsoever manipulate the complainant
into the
transaction.”
5)
With the merits effectively having been
conceded by the respondent, it was no surprise that a number of
points
in limine
were raised on her behalf. The first of these relate to the authority
of Ms Nicole Irene Peters, who is the deponent to the main
affidavit
and the Deputy Director of Public Prosecutions in the applicant’s
Local Asset Forfeiture Unit. In her answering
affidavit, the
respondent challenged Ms Peters’ assertion that she had been
duly mandated to bring the application on behalf
of the National
Director of Public Prosecutions. This was a bald assertion without
any supporting facts. Nevertheless, in her replying
papers, Ms Peters
produced her written authorisation. The applicant also filed a
confirmatory affidavit by Dr Ndzengu, who is the
Senior Deputy
Director of Public Prosecutions attached to the Port Elizabeth office
of the Asset Forfeiture Unit. In that affidavit
the latter confirms
that the application had been properly instituted, with his approval.
6)
The respondent nevertheless persisted with
her challenge to Ms Peters’ authority on the ground that the
written authorisation
provides that all cases in respect of which it
is utilized, must be checked by the regional head to whom she
reports, or any Deputy
Director of Public Prosecutions appointed by
the regional head for that purpose. She also asserted that Dr
Ndzengu’s affidavit
amount to an
ex
post fact
attempt to clothe Ms Peters
with authority which did not exist at the time when the application
was launched.
7)
In my view both these contentions are
without any merit. First, the assertion that the case which is the
subject matter of this
application has not been checked by the
regional head or other relevant functionary prior to the institution,
has been soundly
negated by Dr Ndzengu’s confirmation that he
had given his approval for the institution of the application. And
second, the
latter’s confirmatory affidavit was filed in
response to an unsubstantiated challenge to Ms. Peters’
authority. It
was consequently appropriate for that issue to be dealt
with in the replying affidavit. Dr Ndzengu has stated categorically
that
he has had insight into the preservation application in this
matter and that the proceedings had been properly instituted, with
his approval. The contention that his assertion in this regard
amounts to an
ex post facto
attempt to rectify Ms Peters’ lack of authority is manifestly
untenable.
8)
Mr
Magaleni
,
who appeared for the respondent, also submitted - albeit rather
half-heartedly - that because the previous preservation application
in respect of the same property, which was launched under case number
649/2020, was withdrawn, it was incumbent on the applicant
to wait
until the matter had again been referred to it by the police before
launching these proceedings. The fact that this did
not happen
renders the matter
res judicata
,
or so the argument went. This argument is self-evidently flawed. In
order for the respondent to succeed with the aforementioned
defence
she had to establish that a case involving the same issues and the
same parties had been previously decided by another
court or
competent tribunal. It is common cause that the previous application
was withdrawn before the matter could be adjudicated
and the issue of
res judicata
can accordingly not arise.
9)
There can accordingly be little doubt that
the applicant has established, on a preponderance of probabilities,
that there are reasonable
grounds to believe that the property sought
to be preserved is an instrumentality of an offence referred to in
Schedule 1 of POCA,
and is the proceeds of unlawful activity.
10)
The respondent has accordingly failed
to show cause why the provisional preservation order should not be
made final.
11)
In the result of the following order
issues:
(a)
The provisional preservation order made on
10 December 2020 in terms of
section 38
of the
Prevention of
Organized Crime Act, No. 121 of 1998
, is hereby confirmed, with
costs, including all reserved costs.
_____________________________
J.E. SMITH
JUDGE
OF THE HIGH COURT
COUNSEL FOR APPLICANT
: Adv. A. French
ATTORNEYS FOR APPLICANT
: Office of the State Attorney
17
Fleet Street
East
London
COUNSEL FOR RESPONDENT
: Mr M.O.
Magaleni
ATTORNEYS FOR RESPONDENT:
M.O. Magaleni Attorneys
Office No. 2
Alberti
Chambers
14
Cromwell Street
King Williams
Town