The National Director of Public Prosecutions v Mandava (7635/18) [2019] ZAGPPHC 141 (24 April 2019)

78 Reportability

Criminal Law

Brief Summary

Forfeiture — Prevention of Organized Crime Act — Application for forfeiture of vehicle used in stock theft — Applicant sought forfeiture of truck used to transport stolen cattle — Respondent claimed ownership and lack of knowledge regarding theft — Court held that the truck was an instrumentality of crime as it was used in the commission of stock theft, and the respondent failed to prove he was an innocent owner unaware of the unlawful activity.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an opposed application for civil forfeiture under Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 (POCA). The applicant was the National Director of Public Prosecutions (NDPP) and the respondent was Rich Mandava, who asserted ownership of the property sought to be forfeited.

The proceedings followed upon a preservation order granted in terms of section 38(1) of POCA on 9 February 2018 in relation to a 2006 white Tata heavy load truck held at the Pretoria West Vehicle Pound under a SAP 13 reference. The NDPP thereafter sought a final forfeiture order, contending that the vehicle was an instrumentality used in the commission of stock theft.

The general subject-matter of the dispute was whether the truck, found loaded with stolen cattle, was sufficiently linked to the commission of the offence to justify forfeiture, and whether the respondent could resist forfeiture by advancing a version that he was an innocent transporter who did not know the cattle were stolen.

2. Material Facts

The court accepted as the factual background to the preservation and forfeiture proceedings that, on the night of 28 October 2017, Mr David Zulu (a pensioner residing in Soshanguve, Pretoria) owned a herd of 20 cattle (17 belonging to him and 3 to his son) which were locked in a kraal. The cattle were identifiable by stickers and a DCH brand mark, were not insured, and were estimated to be worth R200 000.

It was common cause on the papers that in the early hours of 29 October 2017, Zulu discovered the cattle were missing and traced their spoor to Onderstepoort in Soutpan. Upon reaching the location indicated by the spoor, he found the relevant truck loaded with some of his cattle and he apprehended the driver while other suspects fled. It was also accepted that a criminal case was opened, and that 14 cattle were found loaded on the truck, with six cattle missing.

The affidavits further recorded that Warrant Officer Sibanda, on duty at Pretoria North Police Station, took a statement from Zulu and proceeded to Plot 103 Rooivak, where he found the truck loaded with cattle reported stolen from Soshanguve. The driver was identified as Mandava, and Zulu identified the cattle as his. Mandava stated that he was supposed to transport the cattle to Rustenburg, and he was arrested for stock theft after being informed of his rights. The investigating officer determined that although the truck was registered in the name of Macarena Company, it had been sold to Mandava.

The court also had regard to photographs showing the location where the cattle and truck were found. These depicted premises described in the judgment as derelict or abandoned, with ruined structures and no indications of habitation.

The respondent’s material version (advanced in opposition to forfeiture) was that he was the owner of the truck, that he bought it using funds paid out after termination of his employment, and that he used it for transporting farm produce and livestock. He stated that he was approached by a person named Morgan (who spoke Shona) and asked to transport cattle. According to him, he travelled from Rustenburg to Pretoria, met Morgan and others at a filling station, followed them to a plot later identified as Plot 103 Soutpan Road, and reversed the truck into the plot for loading. He claimed he asked Morgan to complete a cattle transportation form and to have it signed by the police, and that as he was leaving he was blocked, assaulted by community members, robbed of cash, and forced to withdraw money from an ATM before the police arrived and arrested him. He relied additionally on a police statement by Anna Madisha, who described a Golf vehicle arriving at her plot the previous evening and a truck coming onto the premises in the early morning, cattle being present and loaded, and community members stopping the truck and apprehending the driver while a passenger fled.

The critical dispute on the papers concerned whether the respondent was an innocent transporter without knowledge of theft, as he contended, or whether the surrounding circumstances justified the inference (contended for by the NDPP) that he knew the cattle were stolen and that the truck was being used as part of the theft.

3. Legal Issues

The central legal questions for determination were whether the truck was an instrumentality of an offence for purposes of forfeiture under POCA, and whether the NDPP had placed sufficient facts before the court on a balance of probabilities to justify a forfeiture order.

A further question, arising from the respondent’s resistance to forfeiture, was whether the respondent could be treated as an innocent owner (or innocent interest-holder) such that his interest should be excluded from forfeiture, which required the court to determine whether he neither knew nor had reasonable grounds to suspect that the property was an instrumentality of an offence.

These issues involved a combination of application of legal standards to facts (including the “close link” test for instrumentality) and evaluative factual assessment (whether the respondent’s asserted lack of knowledge was probable in light of the surrounding circumstances described in the affidavits).

4. Court’s Reasoning

The court approached the matter within the framework of Chapter 6 of POCA, noting that forfeiture proceedings are preceded by a preservation order and may culminate in forfeiture irrespective of whether there is a prosecution. Relying on authority, the court stated that the State is required to place before the court facts which, on a balance of probabilities, show that the property is connected to unlawful activity in the manner contemplated by POCA and should be forfeited.

On the question of instrumentality, the court treated the truck as central to the offence of stock theft in the circumstances presented. It reasoned that, without the truck, it would have been difficult to remove cattle from Soshanguve and transport them a considerable distance to Soutpan (and onward to an intended destination). The court characterised theft as a continuing process, and therefore viewed the loading and movement of the cattle as part of the execution of the theft. On that basis, the truck’s role in transporting the cattle from the point of theft and distancing them from the owner supported the conclusion that it bore a sufficiently close connection to the offence.

The respondent relied on the proposition that an instrumentality requires a sufficiently close link between the property and the commission of the crime, and argued that the timing of theft and the time of his arrival at the plot weakened that link. The court nonetheless held that the truck was found while stolen cattle were being loaded and was in the process of exiting the plot, which supported the inference that it was being used to transport stolen cattle, thereby satisfying the instrumentality requirement in the circumstances.

Turning to the respondent’s claim of innocence, the court accepted that he asserted ownership of the truck and that its purchase was not disputed, but emphasised that lawful acquisition was not decisive; what mattered was the vehicle’s use in the commission or furtherance of the offence and whether the respondent could establish absence of knowledge or reasonable suspicion. The court stated that, to have his interest excluded, the respondent had to satisfy the court on a balance of probabilities that he neither knew nor had reasonable grounds to suspect that the truck was an instrumentality.

In assessing whether the respondent’s professed lack of knowledge was probable, the court examined the surrounding circumstances reflected on the papers. It attached weight to the respondent’s inability to provide full details regarding “Morgan,” and to the absence of any stated inquiry by the respondent into the lawfulness of Morgan’s possession or ownership of the cattle. The court also considered the condition of the premises where the cattle were found, which appeared derelict, as a factor contributing to reasonable suspicion. In view of these circumstances, the court concluded that the respondent had more than enough reason to suspect that the cattle were stolen and was not satisfied that he had shown, on a balance of probabilities, that he lacked knowledge.

The court ultimately found that the respondent knew the cattle were stolen and made the truck available to transport them, with the result that the NDPP had established a case for forfeiture.

5. Outcome and Relief

The court granted the application and issued a forfeiture order declaring the 2006 white Tata load truck (identified by registration, chassis number, engine number, and SAP 13 reference) forfeited to the State in terms of POCA (as framed in the order).

The court ordered that, in terms of section 56(2) of POCA, ownership vests in the State as from the effective date of the order. It dispensed with the appointment of a curator and directed that the property remain in the custody of the South African Police Service until sold at auction, with the proceeds to be transferred or deposited into the Criminal Assets Recovery Account established under section 63.

The order further provided that any person whose interest is affected may, within 21 days after acquiring knowledge of the order, set the matter down for variation or rescission. The respondent was ordered to pay the costs of the application.

Cases Cited

National Director of Public Prosecutions v Mohamed [2002] ZACC 9; 2002 (4) SA 843 (CC).

Mohunram and Another v National Director of Public Prosecutions 2007 (2) SACR 145 (CC).

National Director of Public Prosecutions v Hilton Plaatjies and Another, Unreported judgment, Case No: 3203/2010, Eastern Cape Local Division, Port Elizabeth, 13 November 2014.

Legislation Cited

Prevention of Organised Crime Act 121 of 1998 (sections 38(1), 48(1), 50, 53, 56(2), 63).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the truck was an instrumentality of the offence of stock theft because it was used to load and transport stolen cattle as part of the continuing commission of the theft, and that there was a sufficiently close link between the property and its criminal use to justify forfeiture.

The court further held that the respondent did not satisfy the requirement, on a balance of probabilities, that he neither knew nor had reasonable grounds to suspect that the cattle were stolen and that the truck was being used as an instrumentality. On the contrary, the surrounding circumstances supported the finding that he knew the cattle were stolen and made the truck available for their transportation.

LEGAL PRINCIPLES

Forfeiture under Chapter 6 of POCA proceeds through a preservation order followed by a forfeiture order, and the granting of forfeiture does not depend on whether a criminal prosecution has occurred; the State must place facts before the court showing, on a balance of probabilities, that the statutory requirements for forfeiture are met.

Property is an instrumentality of an offence where there is a sufficiently close link between the property and its criminal use, and a close enough relationship to the actual commission of the offence to render it an instrumentality in the POCA sense.

Where a respondent seeks to resist forfeiture on the basis of innocence, the respondent must satisfy the court, on a balance of probabilities, that he or she neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence.