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[2008] ZASCA 15
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National Director of Public Prosecutions v Geyser and Another (160/07) [2008] ZASCA 15; [2008] 2 All SA 616 (SCA) ; 2008 (2) SACR 103 (SCA) (25 March 2008)

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 160/07
In the matter between
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
...
Appellant
and
FREDERIK HENDRIK GEYSER
...
First
Respondent
FAKKEL SCRAP DEALERS CC
... Second
Respondent
________________________________________________________________________
CORAM: HOWIE P, SCOTT, STREICHER, VAN HEERDEN JJA et MHLANTLA AJA
________________________________________________________________________
Date Heard: 15 February 2008
Delivered: 25 March 2008
Summary
: Immovable property an instrumentality of
the offence of keeping a brothel in contravention of the Sexual
Offences Act 23 of 1957
– property bought and renovated for
sole purpose of that offence – forfeiture under the
Prevention
of Organised Crime Act 121 of 1998
not disproportionate to the Act’s
remedial purpose to inhibit crime undertaken as a business.
Neutral Citation: This judgment may be referred to as
National
Director of Public Prosecutions v Geyser
(160/2007)
[2008]
ZASCA 15
(25 March 2008)
________________________________________________________________________
J U D G M E N T
_____________________________________________________________
HOWIE P
HOWIE P
[1] In the year 2000 a close corporation, Fakkel Scrap
Dealers CC, of which Mr Frederik Hendrik Geyser is the sole member,
bought
an immovable property in Church Street, Arcadia, Pretoria. The
property comprised a single storey residence and grounds. The
property
was acquired to house the business that Mr Geyser and his
domestic partner, Ms Irma Basson, opened there in September of that
year.
Up till the time of the proceedings with which this case is
concerned the business traded as ‘Ambassadors’ and each

of them had a half share in it.
[2] In June 2005 the National Director of Public
Prosecutions (the NDPP), contending that ‘Ambassadors’
was a brothel
operated in contravention of s 2 of the Sexual Offences
Act
1
,
approached the High Court in Pretoria for a preservation of property
order in terms of
s 38(2)
of the
Prevention of Organised Crime Act
(POCA
)
2
.
The order was granted. In due course application was made to that
court under
s 48(1)
of POCA for an order in terms of
s 50(1)
that the
property be forfeited to the State. The cited respondents were Mr
Geyser and the close corporation.
[3] The application came before Van Rooyen AJ and was
resisted. Despite the opposition the learned Judge found that the
business
indeed constituted the keeping of a brothel in contravention
of the Sexual Offences Act. However, because he also found that only

the top floor was involved in the commission of this offence it was
substantially only that portion of the property which, being
an
instrumentality of the offence within the meaning of POCA, fell to be
forfeited. He accordingly ordered forfeiture of the top
floor, its
contents and a pro rata part of the unbuilt portion of the property.
With leave of the court below the NDPP appeals
and Mr Geyser, on his
own behalf and for his close corporation, cross-appeals. The NDPP
complains that there was not forfeiture
of the entire property and Mr
Geyser contends there should have been no forfeiture at all.
[3] Section 2 of the Sexual Offences Act makes it an
offence to keep a brothel. This Act defines a brothel as including:
‘any house or place kept or used for purposes of prostitution
or for persons to visit for the purpose of having unlawful
carnal
intercourse ...’.
3
In terms of s 3 certain persons are deemed to keep a
brothel. They include:
‘(a) ...
any person who manages or assists in the management of any brothel;
(c) any person who knowingly receives the whole or any share of any
moneys taken in a brothel.’
[4] Section 20(1) of the Sexual Offences Act also
penalises ‘unlawful carnal intercourse ... with any other
person for reward’.
4
[5] ‘Unlawful carnal intercourse’ is defined
as ‘carnal intercourse otherwise than between husband and
wife.’
5
However, it was held in
S v Jordan and others
6
that this definition, if applied literally, would be
unconstitutionally overbroad and that all the sections to which I
have referred
must be understood as regulating and criminalising only
commercial sex.
[6] It must be so that where prostitution occurs in a
brothel (as opposed to elsewhere) the brothel-keeper not only commits
a s
2 offence but provides for, and so aids, commission not only of
the s 20(1) offence committed by the prostitute but also the
customer’s
simultaneous offence either of being an accessory at
common law or of contravening s 18(2) of the Riotous Assemblies Act
of 1956.
7
[7] Upon purchase of the property Mr Geyser, with the
help of others, set about effecting a complete renovation of the
building
including the addition of a second storey. He also applied
for a liquor licence for the business. In his application he said the

business would be that of a guest house and sportsman’s bar.
Its name, he then claimed would be ‘Elite Sportsmans
Guesthouse’. The licence was granted.
[8] Nothing gives the lie more effectively to the
allegation that the premises were intended to be, or were ever used
as, a guest
house than the layout and construction of the top floor.
The liquor licence application included a sketch plan. Subject to
irrelevant
subsequent modifications, the
top floor exists as shown on the plan. Of the fourteen
rooms indicated as bedrooms, ten have an identical design. They
contain no
more than a shower, a double bed and a chair. There is no
space for a cupboard, a handbasin, a toilet or any other
accoutrements
of the most basic or ordinary guest accommodation.
Counsel for Mr Geyser conceded, understandably, that the premises had
never
been a guest house and that these ten identical rooms were,
effectively, just cubicles for the purposes of prostitution.
[9] A police investigative operation conducted on 21
February 2003 revealed that the rooms in question each contained a
supply of
condoms and were used by prostitutes for commercial sex.
Consequent upon the operation Ms Basson paid an admission of guilt
fine
for keeping a brothel and two of the prostitutes
8
who offered their services at the premises each paid an admission of
guilt fine.
[10] Mr Geyser was assisted by a loan of R600 000 from
an acquaintance, Mr JDJ Hattingh, in purchasing the property and to
secure
the loan a bond in Mr Hattingh’s favour was registered
over the property. Mr Hattingh and Ms Basson made affidavits
comprising
portion of the evidence presented by the NDPP in the court
below. Their affidavits provide detailed and convincing evidence that

the business was conceived, begun and conducted ever since as a
brothel. Its income is earned from liquor sales and from the hire
of
the first floor rooms each time a prostitute and a customer engage in
commercial sex.
[11] In Mr Geyser’s evidence in the court below he
sought to deny that the property housed a brothel or, if it did, that
he
was party to its operation. His testimony consisted not only of
affidavits. Curiously, the Judge permitted him to give oral evidence

at one stage of the proceedings. However, it was limited to his
evidence-in-chief and nothing turns on this procedural eccentricity

for it was subsequently agreed by the parties that the oral evidence
could stand, in effect, as an affidavit. What is plain is
that every
part of his evidence that conflicts with the material aspects of the
depositions of Mr Hattingh, Ms Basson and the police
witnesses, or
with the damning objective evidence to which I have referred, is so
clearly untenable that it can properly be rejected
merely on the
papers. The balance of probabilities is so overwhelmingly against his
protestations that even had he been cross-examined
and adhered in all
essential respects to his oral evidence-in-chief he could not have
disturbed that balance.
9
[12] Realistically, counsel for Mr Geyser did not seek
to support his client’s credibility. What he argued was that Mr
Geyser
was not keeping a brothel. All he was doing was letting the
first floor rooms, and in doing so merely making them available for

the practice of prostitution. Accordingly he was not, in effect,
selling commercial sex.
[13] In this case the evidence points inescapably to
the conclusion that Mr Geyser custom-built the building to operate as
a brothel
– albeit a brothel with a bar – and, but for
minor intervals which are immaterial, operated it with Ms Basson
until
the NDPP’s intervention. The drawing of that conclusion
is in no way hampered by evidence that some visitors to ‘Ambassadors’

came merely to socialise or that the business earned more from liquor
sales than from prostitution or that the prostitutes were
not
employees but free agents. The fact remains that commercial sex was
the drawcard and the focal activity.
[14] In any event brothel-keeping in contravention of
the Sexual Offences Act does not have to involve, in counsel’s
terms,
personally selling commercial sex. If what Mr Geyser did was
to let the upper rooms for the purposes of prostitution then, on the

facts stated, clearly the building was a ‘house ... used for
purposes of prostitution or for persons to visit for the purpose
of
having [commercial sex]’. In addition he is deemed to have kept
a brothel because he knowingly received a share of the
moneys of the
business.
[15] As to the question whether the property or part of
it was an instrumentality of Mr Geyser’s offence of
brothel-keeping,
the evidence shows that the ground floor housed the
bar and provided convenient space and facilities for people to
socialise. It
was also the venue for performances of erotic dances
and strip shows. It was the place where the prostitutes could be seen
and
chosen by their intending customers and where those visitors as
yet uncertain might, induced by liquor or the staged entertainment,

or both, incline to customer status. More specifically it was where
the customer, having decided on the prostitute of his choice,
booked
and paid for her services and for the use of an upstairs room. Those
arrangements were made at the reception area on the
ground floor
where the management of ‘Ambassadors’ was conducted. The
ground floor was therefore an essential component
of the brothel. It
follows that the court below erred in finding that only the top floor
was involved.
[16] To be an instrumentality of an offence the property
concerned must by definition in POCA, be ‘concerned in the
commission’
of that offence. As the cases have interpreted that
definition, the property must facilitate commission of the offence
and be directly
causally connected with it so that it is integral to
commission of the offence.
10
The whole building satisfied that requirement. That was enough to
make the entire property sufficiently linked to the offence to
make
it an instrumentality whatever insignificance the surrounding grounds
had.
[17] Turning to the issue of forfeiture, POCA does not
define organised crime. Species of what inevitably are organised
crimes are
described and provided for in the text.
11
For forfeiture to be ordered, the offence of which the property
concerned is an instrumentality must be a Schedule 1 offence.
12
Schedule 1 contains an itemised list of common law and statutory
offences. Item 11 is contravention of section 20(1) of the Sexual

Offences Act. Item 33 is any offence, the punishment for which may be
imprisonment exceeding one year without the option of a fine.
The
penalty prescribed for brothel-keeping is three years’
imprisonment, with or without a fine of R6 000
13
.
That is also the penalty for having commercial sex i.e. the
prostitute’s offence of contravening what is now s 20(1A)(a).

In view of the provisions of s 18(2) of the Riotous Assemblies Act,
14
the customer would be liable to the same penalties, if not as a
common law accessory in the alternative. Forfeiture in this case
is
therefore legally competent under POCA.
[18] Although s 50(1) of POCA requires forfeiture where
property is an instrumentality of an offence, the courts must ensure
that
forfeiture does not amount to arbitrary and therefore
unconstitutional deprivation of property. They must be satisfied that
the
consequences of a forfeiture order are proportionate to the
purpose for which it is made. They therefore have a discretion to
decline
forfeiture, despite s 50(1), if the impact of the deprivation
would be out of proportion to that purpose.
15
[19] The court below did not deal with proportionality
in its judgment. The limited forfeiture ordered was motivated by the
instrumentality
finding, not by any proportionality exercise.
[20] As pointed out in
NDPP v
Vermaak
,
16
although there has been some difference of views on the question
whether POCA applies to crimes which cannot be categorised as

organised crimes,
17
this court has held that it does.
18
That decision was approved by a unanimous Constitutional Court.
19
That it does, was also the conclusion of five judges of the
Constitutional Court in
Mohunram.
20
The other judgments in that case left the question open but
nevertheless countenanced an approach whereby, in an instance not
involving a crime designated in the text of POCA, one would be
concerned to determine how closely or remotely, as the case might
be,
the offence in such matter was connected to the main purpose of POCA.
In the other judgments it was suggested that the test
might be
whether the offence under consideration was such that it rendered
conventional penalties inadequate.
21
One would therefore, on that approach, have regard to the penalties
prescribed for the particular offence.
[21] In arguing against forfeiture, counsel for Mr
Geyser stressed the predominance of the business’ liquor income
over its
income from letting the upper rooms for prostitution. He
urged that a comparison favourable to his client’s case was to
be
drawn with
Mohunram’s
case, where forfeiture was refused.
22
He also contended that it would be disproportionate if the State
acquired the property and stripped Mr Geyser of an asset which
the
latter deposed was currently worth R2 million. Such a result, counsel
said, would constitute excessive punishment for an offence
for which
the prescribed penalties, and particularly a possible sentence of
three years’ imprisonment, were sufficient deterrent.
[22] These submissions cannot, in my view, prevail. I
have already said that commercial sex was the central feature of the
business.
Nothing justifies the inference that the bar would have
existed, much less been viable, just on its own. It served to
facilitate
creation of an atmosphere conducive to what was the
principal business of the house.
[23] In
Mohunram
the offences involved were contraventions of the KwaZulu-Natal
Gambling Act 10 of 1996. The offender, through a close corporation,

bought a commercial property. He partitioned it. In one part he
conducted a lawful glass and aluminium business. In the other he

installed 57 unregistered gaming machines, thus operating an
unlicensed casino. He was charged with unlawful possession of the

machines and with employing three people to work in the casino. The
upshot was that the machines were confiscated and destroyed
and he
paid fines totalling R88 5000. As mentioned, forfeiture of the
property was held by a divided Constitutional Court to be
excessive
and was refused.
[24] There are material differences between
Mohunram
and the present case. First, the property in that matter was bought
and used for two purposes. One was legitimate. Here, the property
was
acquired solely for a criminal purpose.
[25] Secondly, gambling indeed has negative social
implications and therefore requires statutory regulation.
23
But, armed with the necessary licenses and registration it is lawful.
By contrast, brothels are not capable of legal regulation;
they
remain illicit.
24
And there can be little doubt, to my mind, that brothel-keeping would
be seen by a majority in society, if not society as a whole,
as
morally more reprehensible than operating unregistered gaming
machines. Brothel-keepers, as mentioned, commit their own offence
and
aid in the commission of the prostitutes’ offence. In doing so,
they themselves earn an income from prostitution.
25
[26] Thirdly, the offending machines having been
removed, which were the essential means by which the principal
offence in
Mohunram
was committed, the property was capable of use for the legitimate
glass and aluminium business. Here, there was no independent
lawful
enterprise. The brothel business and the property were inextricably
linked. Stopping that business involved taking the property.
It is
not Mr Geyser’s case that he ever had, or would in future have,
another use for it.
[27] Fourthly, in
Mohunram
,
apart from losing his machines (which he valued at R285 000), the
offender paid a very substantial fine. In the present instance
Mr
Geyser’s business partner paid an admission of guilt fine which
was trifling by comparison. He himself, according to the
evidence,
refused to pay an admission of guilt fine, steadfastly maintaining
that he had committed no offence. Accordingly he has,
as yet,
sustained no punishment at all.
[28] It follows that the result in
Mohunram
offers little if any assistance in the advancement of Mr Geyser’s
case.
[29] Coming to the contention that loss of a property
allegedly worth R2 million would be unconstitutionally
disproportionate, a
number of important observations were made by
this court in
NDPP v Vermaak
,
26
with which I respectfully agree, and which point the way to the
answer in this case. They are contained in the following paragraphs:
‘[10] It was pointed out in
Cook Properties
that an
order of forfeiture inevitably operates as both a penalty and a
deterrent but I think its primary purpose is remedial.
Punishment and
deterrence are part of the function of sentence and I do not
understand the Act to be aimed at simply adding to
sentences that
might be imposed. On the contrary, I think it is apparent from the
nature of the measure that forfeiture aims primarily
at crippling or
inhibiting criminal activity, and it is in that light that the
discretion to order it ought to be exercised.
[11] 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.’
27
[30] The primary question, therefore, is not: would
forfeiture constitute punishment (whether excessive or at all), but:
would forfeiture
have more than the necessary remedial effect?
[31] When Mr Geyser bought the property he must have
known that prostitution and brothel-keeping were criminal. Although
the evidence
suggests the existence, before delivery of the
Jordan
judgments,
28
of speculation in some quarters that the result of that case might
open the way to legalised brothel-keeping and prostitution,
it is not
his case that he thought so or that he banked on such a result.
[32] Undeterred by the
Jordan
decision and the police operation on 21 February 2003, he
continued with his criminal activities.
[33] The evidence reveals that in September 2004 the
police issued a formal notice to him, Ms Basson and Mr Hattingh that
‘Ambassadors’
was a brothel and that POCA could be
enforced against them unless they desisted. Not even this very
specific warning had any remedial
effect. It is therefore appropriate
to say that Mr Geyser acted throughout in deliberate defiance of the
law.
[34] Counsel for Mr Geyser submitted that if the
authorities wished to inhibit Mr Geyser’s activities they had a
substantial
penal provision at their disposal and that forfeiture of
the property would be disproportionate to the ends sought to be
achieved.
Without in any way understanding that submission as
indicative of Mr Geyser’s readiness to accept any sentence at
all, the
fact is that the record in this case justifies the inference
that apart from the investigative raid and the imposition of
insignificant
admission of guilt fines, the police and the
prosecution services had neither the resources nor the inclination to
institute criminal
proceedings in this matter. Once again, however,
even if prosecution had occurred and had resulted in punishment and,
conceivably,
some deterrence, the predominant focus, as I have said,
is not on deterrence. As held by this court in
Vermaak,
where the offence involves the operation of a business, the primary
focus is on remedial effect even though the question of an
imposed or
potential criminal sentence may still have some relevance.
[35] In my judgment the required remedial effect is one
which will convey the unmistakable message to Mr Geyser, to other
brothel-keepers
and to the public at large that the law does not turn
a blind eye to the persistent and obdurate pursuit of a criminal
business
and will act to demonstrate that brothel-keeping does not
pay. The appropriate means by which to convey that message in this
case
is by forfeiture of the property in question.
[36] There is some dispute, and uncertainty, on the
record as to the value of the property. It was bought for R320 000
and
an unspecified amount was spent on its renovation. Although the
bond debt comprises R600 000 in capital and very possibly double

that sum in interest, counsel for Mr Geyser contended that Mr
Hattingh would be barred by the
ex turpi causa
principle from recovery. Accordingly, it was argued, what Mr Geyser
would be deprived of by forfeiture would be the full current
value of
the property. On the case for the NDPP, an estate agent (who was not
able to obtain access to the property) estimated
a value of R900 00.
Be that all as it may, the argument that forfeiture of the property
would be disproportionate is, in my view,
misplaced.
[37] Assuming, for purposes of argument, that forfeiture
would deprive Mr Geyser of the full unbonded current value of the
property,
and that it is worth R2 million, he can have no legitimate
cause for complaint. What he paid out of his own pocket he knowingly

invested in a criminal enterprise and for no other purpose. There is
no acceptable ground for saying he should get that sum back.
As to
the increase in the capital value of the property, this will have
been due to the improvements he effected as well as to
increases in
property values in the area. Although the legal reason for his having
access to this capital gain is because he is
the sole member of the
owner corporation, the factual reason is because he acquired the
property, and used it more or less incessantly
thereafter, solely for
a criminal purpose. It is not alleged he would ever have carried on
any other activity or business on the
property nor, indeed, that he
will do so now. It follows that if he had not embarked on his
criminal enterprise he would not have
achieved the gain that he seeks
to retain.
[38] For all the reasons discussed, I hold that the NDPP
has established that forfeiture will not be disproportionate to the
purposes
which POCA aims to achieve.
[39] The court below should therefore have ordered
forfeiture of the entire property.
[40] The order of this court is as follows:
A. The appeal succeeds with costs, including the costs
of two counsel.
B. The cross-appeal is dismissed with costs, including
the costs of two counsel.
C. The order of the Court below is set aside and
replaced by the following order:
‘
1. An order is granted in terms of the provisions
of section 50 of the Prevention of Organised Crime Act 121 of 1998
(“the
Act”) declaring forfeit to the State the immovable
property situated at 829 Church Street, Arcadia, Pretoria, together
with
its contents (“the property”), which property is
presently subject to a preservation of property order granted by this

court on 15 June 2005.
2. The
curator bonis
appointed by this court in terms of the order granted on 15 June 2005
shall continue to act as such with authority to perform all
the
functions specified in the Act subject to the provisions of the
Administration of Estates Act 66 of 1965
and the supervision of the
Master of the High Court.
3. The
curator bonis
shall have all such powers, duties and authority as provided for in
the Act and in this order, including such powers, duty and
authority
reasonably incidental thereto and shall, in addition, be subject to
the applicable provisions of the
Administration of Estates Act 66 of
1965
. The fees and expenditure of the
curator
bonis
reasonably incurred in the execution of
his duties shall be paid from the proceeds of the forfeited property.
4. In terms of section 56(2) of the Act, the property
shall vest in the
curator bonis
on behalf of the State on the date on which the forfeiture order
takes effect.
5. The
curator bonis
is authorised, as of the date on which the forfeiture order takes
effect, to
5.1 assume control of the property and take it into his
custody;
5.2 dispose of the property by private sale or other
means;
5.3 deduct his fees and expenditure which were approved
by the Master of the High Court;
5.4 deposit the balance of the proceeds in the Criminal
Assets Recovery account established under section 63 of the Act,
number
80303056 held at the South African Reserve Bank, Vermeulen
Street, Pretoria;
5.5 perform any ancillary acts which are necessary in
the opinion of the
curator bonis
,
but subject to any directions of the Criminal Assets Recovery
Committee established under section 65 of the Act.
6. The
curator bonis
shall as soon as possible but not later than within a period of 90
days of this order coming into effect, file a report with the

applicant and the Master of the High Court indicating the manner in
which he:
6.1 completed the administration of the property
mentioned above and
6.2 complied with the terms of this order.
7. The Registrar of this court must publish a notice of
this order in the Government Gazette as soon as practical after the
order
is made.
8. Any person affected by the forfeiture order, and who
was entitled to receive notice of the application under section 48(2)
but
who did not receive such notice, may within 45 days after the
publication of the notice of the forfeiture order in the Gazette,

apply for an order under section 54 of the Act, excluding his or her
interest in the property, and varying the operation of the
order in
respect of the property.
9. All the paragraphs of the order operate with
immediate effect, save for paragraphs 4 and 5 which will only take
effect on the
day that an application for the exclusion of interest
in forfeited property in terms of section 54 of the Act is disposed
of, or
after expiry of the period in which an application may be made
in terms of section 54 of the Act.
10. The First and Second Respondents are ordered to pay
the costs of this application jointly and severally, the one paying
the
other to be absolved.’
______________________
CT HOWIE
PRESIDENT
SUPREME COURT OF APPEAL
CONCUR
:
SCOTT JA
STREICHER JA
VAN HEERDEN JA
MHLANTLA AJA
1
Act 23 of 1957, as amended.
2
Act 121 of 1998.
3
Section 1.
4
Section 20(1)(aA), which provision became s
20(1A)(a) under the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
, but only if committed by anyone
18 or older.
5
Section 1.
6
">
6
2002
(6) SA 642 (CC) para 101.
7
Jordan, the majority judgment, paras 11 and 14.
Section 18(2) of the Riotous Assemblies Act states:
‘Any person who –
(a) Conspires with any
other person to aid or procure the commission of or to commit; or
(b) incites, instigates,
commands or procures any other person to commit, an offence, whether
at common law or against a statute
or statutory regulation shall be
guilty of an offence and liable on conviction to the punishment to
which a person convicted
of actually committing the offence would be
liable’.
8
A synonym for ‘prostitute’ sometimes
preferred is ‘sex worker’. The Sexual Offences Act
refers to ‘prostitution’
and ‘prostitute’
and I adhere to that word usage in this judgment.
9
Cf
Administrator,
Transvaal and others v Theletsane and others
1991 (2) SA (A) at 197A-C.
10
NDPP v Cook
Properties
[2004] 2 All SA 491
(SCA)
para 34;
NDPP v Mohunram
2006
(1) SACR 544
(SCA) para 4
; Mohunram v
NDPP
[2006] ZASCA 12
;
2007 (4) SA 222
(CC) para 49.
11
Section 2 (offences related to racketeering
activities), s 4 (money laundering), s 6 (receiving the proceeds of
unlawful activities)
and s 9 (gang related offences).
12
Section 38(1) read with ss 48(1) and 50(1).
13
Section 22(a) of the Sexual Offences Act.
14
Note 7.
15
NDPP v Cook Properties
(note 10) para 74;
NDPP v Van
Staden
2007 (1) SACR 338
(SCA) paras 5 and 8;
Prophet v NDPP
2007 (2) BCLR (CC) paras 58 to 61
; NDPP v Mohunram
(note
10) paras 56 to 63, 122 to 123 and 142 to 143.
16
[2008] ZAGPHC 86
;
2008 (1) SACR 157
(SCA) para 4.
17
Usually referred to as ‘ordinary crimes’ or ‘individual
criminal wrongdoing’.
18
Prophet v NDPP
2006 (1) SA 38
(SCA).
19
Prophet v NDPP
(note 15).
20
Note 10.
21
Mohunram
, paras 126 and 145.
22
By a majority of six to five.
23
‘(G)ambling is an activity that could pose a threat to
individuals’ psychological, financial and even physical
health, as well as those of their families and communities’:
Magajane v Chairperson, North West Gambling Board
[2006] ZACC 8
;
2006 (5) SA
250
(CC) paras 81 to 82
24
In
Jordan
a challenge to the constitutionality of ss 2 and 3 of the Sexual
Offences Act failed.
25
It was not shown that Mr Geyser actually lived off the earning of
prostitution as opposed to just receiving an income from
it. Living
wholly or partly on the earnings of prostitution is an offence under
s 20(1)(a) of the Sexual Offences Act.
26
[2008] ZAGPHC 86
;
2008 (1) SACR 157
(SCA).
27
In para 19 there is, furthermore, reference to the significance of
the consideration (if present) that an offender has acted
‘in
deliberate defiance of the law’.
28
Handed down on 9 October 2002.