About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2019
>>
[2019] ZANCHC 29
|
|
National Director of Public Prosecutions v Johnson and Another (2746/2017) [2019] ZANCHC 29; 2019 (2) SACR 438 (NCK) (12 July 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
NORTHERN CAPE DIVISION,
KIMBERLEY
Case No: 2746/2017
Heard on: 07/06/2019
Delivered
on: 12/07/2019
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC
APPLICANT
PROSECUTIONS
And
JERMAINE
CHARLES JOHNSON
FIRST RESPONDENT
YANFANG
QIU
SECOND RESPONDENT
JUDGMENT
MAMOSEBO
J
[1] This is
an application by the National Director of Public Prosecutions (NDPP)
in terms of s 48(1) of
the Prevention of Organised Crime Act, 121 of
1998 (POCA), for an order declaring forfeited to the State a
Volkswagen Polo with
registration numbers and letters [….],
chassis number WVWZZZ6RZDY137775 and engine number CTH033333 (VW
Polo) and a cash
amount of R2 448 240 (Two Million Four Hundred and
Forty Eight Thousand Two Hundred and Forty Rand) (the cash).
[2] The issue that stands for
determination is whether the VW Polo and the cash should be forfeited
to the
State in terms of Chapter 6 of POCA. To arrive at the answer
it must first be determined whether the VW Polo was an
instrumentality
of an offence under POCA and whether the cash was the
proceeds of unlawful activities. The NDPP had applied for, and was
granted,
a preservation order on 19 October 2018.
Background
facts which are mainly common cause
[3] The first
respondent, Mr Jermaine Charles Johnson (Johnson Jnr), was handed a
locked briefcase containing
a cash amount of R2 430 000.00 to
transport to Cape Town. As a means to transport this cash he was
provided with a white VW
Polo, the property of the second respondent,
Ms Yanfang Qiu. Johnson Jnr was further given an additional cash
amount of R20 000.00
kept in a Pick ‘n Pay plastic bag, of
which R5000.00 was for fuel and food while R15 000.00 was his
payment.
[4] Johnson
Jnr was the driver of the VW Polo and was accompanied by his cousin,
Mr Deavon Noble. The two
were stopped by the South African Police
Service (SAPS)
members
on the N1 at a roadblock in Colesberg in the early hours of 21
September 2017 at 00:30. The VW Polo and its contents were
searched
but the police were left with a locked briefcase which they could not
open. Johnson Jnr was unable to provide the code
to unlock it. He
telephonically contacted his father, Maj Gen Charles Johnson,
Component Head: Crime Investigation Services, Detective
Services at
the police Head Office in Pretoria (Major-General), who furnished the
said code. The police discovered a cash amount
of R2 430 000.00
contained therein together with the cash amount of R18 240.00.
They confiscated the money as well as
the VW Polo and proceeded to
the Colesberg Police Station. The money was sealed and registered in
the SAP 13. Johnson Jnr and his
cousin were taken in for questioning
and later arrested and charged with the offence of money laundering.
[5] Mr Eugene
Brian Ontong, deposed to the founding affidavit on behalf of the
NDPP. He relied on the supporting
affidavits by Jacobus Smit, a
Senior Financial Investigator attached to the Asset Forfeiture Unit
(AFU), and SAPS members who participated
at the roadblock, Const
Zikali Nodoba, Sgt Mothubedi Lekeka, Const Andries Ngwane, the police
official on standby, Sgt Thozamile
Ziswana, and W/O Neels from the
Local Criminal Record Centre as well as that of the Major General. It
is on the basis of their
affidavits read with the respondents’
answering affidavits that the NDPP urged me to find that the VW Polo
was an instrumentality
of an offence and that the cash in question
was proceeds of unlawful activities.
[6] Crucial
to this entire application is the following background deposed to by
Johnson Junior’s
father, a major-general in the SAPS.
Undoubtedly, he understands the implications of an affidavit. He
states that he was approached
by a certain Mr Leon, a Chinese
national, known to him since 2002 as an informant who assisted him in
numerous kidnapping cases.
The said Mr Leon informed him that
he needed a driver to transport money for him from Pretoria to Cape
Town. He offered Johnson
Jnr for that purpose. Mr Leon informed Maj
Gen Johnson that he has had past encounters during which the Chinese
nationals who transported
money on his behalf were robbed by the
police or traffic officers or even other individuals who extorted
payment from his couriers.
There is no documentary evidence to this
effect nor that the incidents were reported to the police or that the
Major-General investigated
Mr Leon’s claims.
[7] Maj-Gen
Johnson maintained that his son had transported money on four or five
occasions using the white
VW Polo which he had in his possession for
about a month before his arrest in September 2017. The General
contacted Mr Leon
who not only furnished him with the required code
but also with the exact amount of what was contained in the brief
case.
[8] The information furnished by
‘the General enabled the police at the roadblock to unlock the
briefcase.
This evidence corroborates the evidence in the affidavit
deposed to by Sgt Ziswana that Johnson Jnr explained to him that he
was
employed by a Chinese national called Mr Qui to whom the VW Polo
belonged. He used the VW Polo to transport money from Pretoria
to
Cape Town and it was not his first time to be caught. The term
‘caught’ was used. The Oxford Dictionary defines
the word
‘catch’ to mean ‘to stop and hold a moving object
especially in the hands’ or ‘to capture
after chasing
them or by trapping them, etc, to seize and hold’. Wikipedia
shows arrest as the equivalent of ‘caught’.
It can
be said that when Johnson Jnr told the police he was not “caught”
for the first time he implied that he was
previously arrested under
similar circumstances.
Instrumentality of the offence
[9] Section 1
of POCA defines instrumentality of an offence as ‘any property
which is concerned in
the commission or suspected commission of an
offence at any time before or after the commencement of this Act,
whether committed
within the Republic or elsewhere.’ Mpati DP
and Cameron JA, writing for the unanimous court, in
National
Director of Public Prosecutions v 37 Gillespie Street Durban (Pty)
Ltd and Another; National Director of Public Prosecutions
v
Seevnarayan
[1]
pronounced that by adopting the definition it was clear that the
legislature sought to give the phrase a wide meaning.
[10] The Supreme Court of
Appeal (SCA) interpreted the words ‘concerned in the commission
of an offence’
used in the definition of ‘instrumentality
of an offence’ in s 1 to mean that there had to be a reasonably
direct link
between the crime committed and the property in question.
See
National
Director of Public Prosecutions re Application for Forfeiture of
Property in terms of
ss 48
and
53
of the
Prevention of Organised
Crime Act
,
1998
[2]
.
Mpati
DP et Cameron JA made the following remarks in
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd
[3]
:
“
As
suggested in
National
Director of Public Prosecutions v Prophet
[2003 (2) SACR 257
(C) at para 26], the determining question is
whether there is sufficiently close link between the property
and its criminal
use, and whether the property has a close enough
relationship to the actual commission of the offence to render it an
instrumentality.
Every case will of course have to be decided on its
own facts.”
[11] Mr R Mastenbroek, counsel for the
respondents, argued that the NDPP has not set out clearly to the
respondents
the case they are called upon to answer. He was referring
to para 7 of the founding affidavit which reads:
“
[7]
For reasons that will be dealt with below, it is submitted that
the property are instrumentalities
of an offence or the proceeds of
unlawful activities referred to in Schedule 1 i.e items 26 (any
offence relating to
exchange control), 32 ( any offence referred to
in Chapter 3 or 4 of POCA)
[4]
,
33 (any offence the punishment wherefore may be a period of
imprisonment exceeding one year without the option of a fine
i.e
section 64
of Financial Intelligence Centre Act 38 of 2001 (FICA)
and/ or 34 (any conspiracy, incitement or attempt to commit any
offence referred to in Schedule 1 of POCA) (the offences).”
The respondents did not challenge the
interpretation of the definition of instrumentality of an offence.
They sought to challenge
whether an offence was committed and that
the respondents had nothing to be held for or answerable for.
[12] Ms Van Dyk, counsel
for the NDPP, submitted that the averments by the NDPP are
that the VW Polo was used
as the instrumentality of the offence
whereas the cash was proceeds of unlawful activities hence the use of
the word
“or" by the NDPP. Johnson Jnr appeared in
a criminal court on a charge of money laundering, however, it
was contended,
criminal proceedings are distinct from civil
proceedings. Counsel further submitted that the focus when
determining whether
property is an instrumentality of an offence the
guilt or wrongdoing of the owner is not primarily relevant.
[5]
The focus is on the role that property played in the
commission of the
offence. I agree. The property can still be
forfeited even when no criminal proceedings are pending. See
National Director of
Public Prosecutions v
37 Gillespie Street Durban (Pty)
Ltd and Another; National Director
of Public Prosecutions v
Seevnarayan
[6]
.
[13] The pronouncements
pertaining to a matter being struck off roll by Tokota J
in
Jojwana v Mene
and Another
[7]
are insightful:
“
[10] The striking of the
matter from the roll has nothing to do with the merits of the case.
In civil matters it often happens
that if a party has either failed
to comply with practice directives
such as pagination, filing
of heads of argument etc, or that the
applicant or plaintiff failed to appear when the matter was called,
the matter is struck
from the roll. In practice where the matter has
been struck from the roll under those
circumstances it may
be re-enrolled upon the delivery of an affidavit
explaining the reasons for the failure to comply with the practice
directive
and/or failure to appear when the matter was called.
In this context therefore striking of the matter from the roll
is not aimed at terminating the proceedings but merely suspends the
hearing thereof pending an application
for
re-instatement.”
I
therefore find that the contention by Johnson Jnr that the criminal
charges against him were struck off the roll is of no moment.
[14] I am guided and
mindful of the Constitutional Court’s finding
[8]
that a deprivation of property is arbitrary when the statute
does not provide sufficient reason or is procedurally unfair.
The
preamble of POCA recognises, among others, that no person should
benefit from the fruits of unlawful activities nor be entitled
to use
property for the commission of an offence.
[15] The question to be answered is whether
there is a functional relation or a direct causal connection
between the
VW Polo and transportation of the money? The VW Polo
made it possible or facilitated the commission via the
transporting
of the cash.
I
find that the VW Polo played a direct role in the commission of an
offence.
I will deal later with the offence in the paragraphs that follow.
[16] Ms Van Dyk submitted
that the NDPP has listed several offences as reflected
at para 7 of the founding
affidavit as some of the possible
charges and offences listed under Schedule 1 of POCA as a basis of
which the forfeiture application can be brought.
She maintained
that the respondents have contravened
s 64
of the
Financial
Intelligence Centre Act
[9
]
which stipulates:
“
64.
Conducting
transactions to avoid reporting duties
Any person who conducts,
or causes to be conducted, two or more transactions with
the purpose, in whole or in part,
of avoiding giving rise
to a reporting duty under this Act, is guilty of an offence.”
[17] Under this head, and
it becomes clearer hereunder, the movement of the money is highly
questionable but certainly
suspicious and has not been
cogently explained by the respondents. The claims of the huge casino
winnings as well
as the substantial US Dollars which
apparently changed hands without any reporting to the
authorities falls squarely within
the prescripts of this Act.
The fact that no authorised mechanism was used to transport
the money but rather a youthful
courier or “mule” to act
as a decoy shows the extent to which the respondents stooped.
Mr Mastenbroek gave the
excuse that the inability by the respondents
to furnish a cogent explanation that satisfied the NDPP is no
reason to deprive
the owners of the properties of their
ownership. I disagree. The respondents had the responsibility to
deal with all factual
averments fully and adequately in their
answering affidavits.
[18] In as far as Item 26
of Schedule 1 of POCA is concerned, the respondents
stood to be charged
with any offence relating to the Exchange Control
Act based on their version that the two Chinese nationals, Messrs
Yehong Wu
and Yexing Wu (the Chinese nationals) entered South
Africa in possession of US dollars and failed to disclose or
declare
them. These are civil proceedings for forfeiture of the said
properties. In the respondents’ response to Rule
35(12) Notice to produce documents in the preservation
application the following was stated:
“
The Chinese Nationals were not asked
to declare the amount of US Dollars brought into the country,
alternatively, they were not
obliged to declare same.”
[19] Ms Qiu furnished the following
explanation in her answering affidavit in
the preservation
application:
“
28.4 The Chinese nationals explained
they brought a substantial amount of US Dollars with
them when travelling from
China and enquired whether they could pay
in US Dollars;
29. Prior to their departure, the Chinese
nationals duly paid me R2 430 000.00 which I
kept in
safekeeping until Salmar requested payment.”
Mr Yehong Wu stated in his
supporting affidavit that during their visit to South
Africa they stayed in numerous casinos
where they often gambled and
won substantial sums of cash exceeding R2 500 000.00.
During March 2017
Ms Qiu was entrusted with an amount of
R2 430 000.00 for the purchasing of the oysters from
Salmar Trading (Pty)
Ltd based in Cape Town.
[20] Ms Van Dyk submitted
that it is the responsibility of any person entering
the country
with foreign currency to declare it. The exact
substantial amount with which the Chinese Nationals allegedly entered
the country
remains
undisclosed. The money in question is said to be the property
of Mr Yehong Wu
and Mr Yexing Wu who failed to enter an appearance to
defend this application as interested
parties
as envisaged by POCA.
[21] As stated Johnson Jnr and his cousin
were also arrested and charged with money
laundering.
Chapter 3 of POCA stipulates:
“
4. Money laundering. – Any
person who knows or ought to have known that property
is or forms part of the
proceeds of unlawful activities and –
(a)
Enters
into any agreement or engages in any arrangement or transaction with
anyone in connection with that property, whether such
agreement,
arrangement or transaction is legally enforceable or not; or
(b)
Performs
any other act in connection with such property, whether it is
performed independently or in concert with any other person,
which
has the likely effect –
(i)
Of
concealing or disguising the nature, source, location, disposition or
movement of the said property or ownership thereof or any
interest
which anyone may have in respect thereof;
(ii)
Of
enabling or assisting any person who has committed or commits an
offence, whether in the Republic or elsewhere –
(aa) to avoid prosecution; or
(bb) to remove or diminish any property acquired directly, or
indirectly, as a result of the commission of an offence, shall be
guilty of an offence.”
[22] Mr Mastenbroek
submitted that the NDPP is required to allege and prove
the existence of
the proceeds of unlawful activities and not have a
mere suspicion of unlawful activity. It was argued on behalf
of the
NDPP that the respondents, in using the VW Polo to
transport the money, were concealing or disguising the nature,
source,
location disposition of the cash in addition to avoiding the
reporting duty pertaining to the said money.
[23] I have already
stated that the cash was kept in a locked briefcase. Johnson Jnr had
to contact Maj Gen Johnson,
his father, who in turn had to contact
the said Mr Leon for the code to unlock the briefcase. Mr Mastenbroek
argued that it is
not a crime to drive through the Karoo in the
middle of the night with a large amount of cash stuffed into
a suitcase.
This argument is puerile. No one said it was an
offence. The founding affidavit and all the supporting
affidavits contained
averments covering all material events that
occurred at the roadblock and prior to 21 September 2017.
[24] In her answering
affidavit, Ms Qiu only stated that she notes the contents
of para 7 of
the founding affidavit relating to the offences. She
further notes the contents of the affidavit deposed to by Maj
Gen Johnson
as recorded by the NDPP but makes a bare denial
that all the contents are a true representation of the
facts.
Noting averments does not amount to a
pleading because a litigant neither admits nor denies the specific
allegations. In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[10]
Heher JA made
these insightful remarks:
“
[13]
……When the facts averred are such that the disputing
party must necessarily possess knowledge of them
and be able
to provide an answer (or countervailing evidence) if they be
not true or accurate but, instead of doing so,
rests his case on a
bare or ambiguous denial the court will generally have
difficulty in finding that the test is
satisfied.
I say ‘generally’ because factual averments seldom stand
apart from a broader matrix of circumstances
all of which
needs to be borne in mind when arriving at a decision. A
litigant may not necessarily recognise or understand
the nuances of a
bare or general denial as against a real attempt to grapple with all
relevant factual allegations made
by the other party. But when
he signs the answering affidavit, he commits himself to its contents,
inadequate as they may be, and
will only in exceptional circumstances
be permitted to disavow them. There is thus a serious duty
imposed upon a legal adviser
who settles an answering affidavit to
ascertain and engage with facts which his client disputes as to
reflect such disputes fully
and accurately in the answering
affidavit. If that does not happen it should come as no
surprise that the court takes a
robust view of the matter.”
These
pronouncements are equally relevant to the bare denials in the
answering affidavit of Johnson Jnr pertaining to the
averments by Maj
Gen Johnson.
[25] The following remain very peculiar to
me:
25.1 Mr Johnson Jnr
claims to have been contacted by the second respondent, Ms Yanfang
Qiu, an acquaintance, who asked
him to transport a briefcase on her
behalf to Cape Town. He does not specify how she contacted him. It
is also unclear why he
refers to her as an acquaintance. If she is
the one who contacted him why would he, upon demand by the SAPS
members for the code
to unlock the briefcase, contact his father and
not his acquaintance?
25.2 If the US Dollars
that the Chinese nationals entered the country with were exchanged
for South African currency
why were supporting documents to that
effect not produced used to substantiate the averment? On the other
hand if the cash was
derived from winnings from casinos what
prevented the respondents from attaching supporting documentation to
that effect?
25.3 The discussion
between Ms Qiu and the Chinese nationals pertaining to the
procurement of oysters purportedly
took place in March 2017 and cash
of R2 430 000.00 was also said to have been paid over to
her in March 2017. At this
stage Salmar Trading, which was
apparently approached for the oyster deal by Ms Qiu, did not even
possess any permit or licence
to trade in oysters. There is further
no proof of a conversion of the currency from US Dollars to Rands
before Ms Qiu was entrusted
with the cash. In South Africa cash
payment includes EFT, which is electronic transfers. Mr Tsz Chueng,
a director of Salmar
Trading (Pty) Ltd, deposed to a supporting
affidavit that Salmar received the news that the licences and
permits ought to be
ready by November 2017. He was then
advised that the money will be delivered in September 2017.
25.4 The second
respondent (Yanfang Qiu) failed to deal with the averment by
the NDPP that the copy of a passport
attached to her answering
affidavit is either fake or not her passport because it does not
reflect the name of the passport holder.
What exacerbates the
failure by Ms Qiu is that she was aware that Mr Willem Jacobus
Steenkamp of the Department of Home Affairs
had deposed to a section
212 affidavit as quoted below but she remained indifferent. He
stated:
“
Passport
numbers [….] and [….]. Both passports reflect the
particulars of Yanfang Qiu a citizen of the People’s
Republic of China with date of birth, 31 January 1982. Comments
on the MCS indicate that her application for Permanent
Residence was approved on 24 February 2009. Movement on her
traveller’s record show that her last entry into the country
was on 09 October 2009, no other entry or departure was
detected after the indicated date. Passport with number [….]
was only used once when she entered the country on 26 July
2005.”
Pertaining to the Chinese nationals
Mr Steenkamp had this to say:
“
Third part of the request
deals with a Yehong Wu and Yexing Wu. The MCS reflects no
records of the two names.”
It is on this basis that
the NDPP urged me to find that the explanation pertaining to
the origin of the money is false and
fabricated and should be
rejected. Mr Mastenbroek was invited during the application to
address me on the issue of the
passports but the argument was
sterile, to say the least.
[26] The National
Regulator for Compulsory Specifications (NRCS) issued a certificate
to Salmar on 20 December 2017.
The roadblock which resulted in the
seizure of VW Polo and the cash occurred on 21 September 2017. I
have already pronounced in
the preservation application the
significance of the alleged presence or visit of the Chinese
Nationals in March 2017 which allegedly
resulted in substantial
casino winnings which were not supported by any documentation. It is
also inexplicable how the Wu’s
or Salmar Trading would have
known the exact required amount of R2 430 000.00 if Salmar
was unlicensed at that stage
and the certificate
issued, valid for three months, was meant for Salmar to notify the
NRCS of its compliance
with the requirements that their
facilities could handle and package oysters. It was not a licence
for Salmar to start the trade
in oysters.
[27] POCA defines ‘proceeds of
unlawful activities’ as meaning:
“
any
property or any service advantage, benefit or reward which was
derived, received or retained, directly or indirectly, in the
Republic or elsewhere, at any time before or after the commencement
of this Act, in connection with or as a result of any
unlawful
activity carried on by any person, and includes any property
representing property so derived.”
[28]
The definition is wide and applies to
individual wrong-doing
[11]
.
Although the submissions by the NDPP regarding the
cash are based on inferential reasoning the principles regarding
a
reasonable inference being drawn are based on the following
cases:
28.1 In
R
v Blom
[12]
the Appellate Division stated:
“
In reasoning by inference there are two
cardinal rules of logic which cannot be ignored: (1) The
inference sought to
be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn. (2) The
proved
facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
do
not exclude other reasonable inferences, then there must be a
doubt whether the inference sought to be drawn is correct.”
28.2 In
S
v Reddy and Others
[13]
the following dictum is apposite:
“
Best on Evidence (Tenth Edition) section
297 page 261, puts the matter
thus:-
"The elements, or links, which compose a
chain of presumptive proof, are certain moral and physical
coincidences, which
individually indicate the principal fact; and the
probative force of the whole depends on the number, weight,
independence, and
consistency of those elementary circumstances. A
number of circumstances, each individually very slight, may so tally
with and
confirm each other as to leave no room for
doubt of the fact which they intend to establish … Not to
speak
of greater numbers, even two articles of circumstantial
evidence, though each taken by itself weigh but as a feather, join
them
together, you will find them pressing on a delinquent
with the weight of a millstone.”
[29] POCA’s
objectives include, among others, the removal of incentives for
crime and advances the ends of justice.
I am not persuaded by the
explanation around the acquisition of the cash and the purpose for
which it was transported
to Cape Town. All the circumstances
taken cumulatively support the averment by the NDPP that the cash
was ‘retained’
in connection with or as a result of
unlawful activities. I find that Ms Qiu made the VW Polo available
as a mode of transport
to facilitate moving huge sums of money
from Pretoria to Cape Town. The VW Polo was therefore an
instrumentality
of an offence.
[30] I am further not
persuaded by the explanation regarding the money discovered in the
locked briefcase. The reasonable
inference to be drawn from the
facts and circumstances is that the money was proceeds of
unlawful activities.
[31] Mr Johnson Jnr may
have been in possession of both the VW Polo and the seized cash but
it is incomprehensible
why he would oppose forfeiture because he
has, in my view, not made out a case that he had a legal
interest in either
the VW Polo or the cash amount of
R2 430 000.00. His opposition for forfeiture is
therefore without merit.
[32] As far as the
opposition for forfeiture of the property by Ms Qiu is concerned, I
am also of the view that she
has not made out a case for the
restitution of the property to her. It is a myth that she was
entrusted with the casino winnings
as early as March 2017 for the
purchase of 75 tonnes of oysters for export in the amount of
R2 430 000.00 whereas Salmar
was unregistered and
unlicensed until November/December 2017. Ms Qiu’s version in
respect of the cash must be rejected as
fabricated. I am
therefore satisfied that the cash was proceeds of unlawful activities
and the VW Polo was used as an instrumentality
of an offence. There
is no reason why costs should not follow the result.
[33] In the result, I
make the following order:
1.
That in terms of s
50 of the Prevention of Organised Crime Act 121 of 1998 (POCA) the VW
Polo with registration numbers and letters
[….], chassis
number WVWZZZ6RZDY137775 and engine number CTH033333 currently in the
custody of the police at the Colesburg
Police Station and the cash
amount of R2 448 240.00 booked into the Colesberg SAP 13
and deposited in the South African
Police Service (SAPS) ABSA bank
designated account with reference number 686018 is declared forfeit
to the State with immediate
effect.
[14]
2.
That in terms of s
50(6) of POCA, paragraph 5 below shall take effect 45 days after
publication of the notice thereof in the Government
Gazette.
3.
That the SAPS
Commanding Officer, Colesberg who was authorised to take care of the
property is directed to continue to do
so for the purpose of
this order.
4.
Pending the taking
effect of this order the property shall remain in the custody of the
SAPS Commanding Officer, Colesberg.
5.
On the date on which
this order takes effect, that is, 45 weekdays after publication in
the Government Gazette, the SAPS Commanding
Officer, Colesberg, shall
hand the property to the Senior Special investigator, Mr Jacobus Smit
of the applicant who shall:
(a)
Assume control
of the property and take it in his custody;
(b)
Sell the
property at a best price, either by public auction or private treaty;
(c)
Sign all
documentation necessary to effect the sale, transfer and registration
of the property; and
(d)
Pay the proceeds
thereof as well as the R2 448 240.00 cash, less any
commission and incidental expenses occasioned by
the sale, into the
Criminal Asset Recovery Account number 80 303 056
established in terms of section 63 of POCA.
(e)
The applicant is
directed to publish a notice of this order in the Government Gazette
as soon as it is practicable.
6.
The respondents are
ordered to pay costs of the suit jointly and severally the one paying
the other to be absolved.
MAMOSEBO J
NORTHERN CAPE DIVISION
For the applicant:
Adv L Van Dyk
Instructed by:
The State Attorney, Kimberley
For the 1
st
and 2
nd
respondents:
Adv R
Mastenbroek
Instructed by:
RHK Attorneys
Engelsman Magabane Inc
[1]
2004 (2) SACR 208
(SCA) at 223f (para 12)
[2]
Unreported case number 2000/12886 (WLD0 at para 12
[3]
2004 (2) SACR 208
(SCA) at 230d - e
[4]
Chapter 3 deals with offences relating to proceeds of unlawful
activities, e.g,(4) money laundering, (5) assisting another to
benefit from proceeds of unlawful activities (6) acquisition,
possession or use of proceeds of unlawful activities. Chapter
4
deals with (9) gang related offences.
[5]
National Director of Prosecutions and Another v Mohammed NO and
Others 2002 (4) SA 843 (CC)
[6]
2004 (2) SACR 208
(SCA) at 222 (para 10)
[7]
(5435/17) [2018] ZAECMHC 54 (11 September 2018)
[8]
Mkontwana v Nelson Mandela Metropolitan
Municipality & Another; Bisset & others v Buffalo City
Municipality & others;
Transfer Rights Action Campaign &
others v MEC, Local Government and Housing, Gauteng, & others
(KwaZulu-Natal Law Society
& Msunduzi Municipality as
Amicus
curiae
)
2005 (1) SA 530
(CC) para 35
[9]
Act 38 of 2001
[10]
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at 375 (para 13)
[11]
National Director of Public Prosecutions v RO Cook Properties
2004
(2) SACR 208
(SCA) at 239g
[12]
1939 AD 188
at 202 – 203.
[13]
1996 (2) SACR 1
(AD) at 8e – h
[14]