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[2019] ZANCHC 55
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National Director of Public Prosecutions v Johannes (117/19) [2019] ZANCHC 55 (11 October 2019)
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IN THE HIGH COURT OF SOUTH
AFRICA
(NORTHERN CAPE PROVINCIAL
DIVISION, KIMBERLEY)
Case No: 117/19
In
the matter between:
The
National Director of
Public
Prosecutions
Applicant
and
ISAAC
ARROL JOHANNES
Respondent
Coram:
Lever AJ
JUDGMENT
1.
This
is an application to confirm a
rule
nisi
obtained
ex
parte
to preserve R26,849.30
(twenty-six thousand eight hundred and forty nine Rand and
thirty cents) (the property) under the provisions
of s38 of the
PREVENTION OF ORGANISED CRIME ACT
[1]
(POCA).
2.
The
matter was heard on the 28 August 2019 and judgment was reserved on
that date. After argument was heard and judgment was reserved,
two
short affidavits by Angeline Sebastian and Chanine Roux respectively,
which appear to have been filed on the 16 August 2019
were brought to
my chambers to be placed in the file. Through my secretary I arranged
for Ms Van Dyk and Mr CF Van Heerden, Counsel
for the respective
parties, to come and see me in chambers. When this meeting took
place, both Counsel informed me that they were
in agreement that the
said affidavits would not form part of the record in the present
application as there was no application
to file further affidavits
out of sequence. It is on this basis that I proceed with the matter.
3.
Mr Van Heerden appeared for the
respondent in this matter, and argued that the test to be applied to
determine whether the
rule nisi
should be confirmed or not was that
applied in the well-known case of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[2]
,
where the then Appellate Division
cited the Stellenbosch Farmers Winery case
[3]
and quoted the test set out therein with apparent approval. The said
test reads as follows:
"... where there is a dispute
as to the facts a final interdict should only be granted in notice of
motion proceedings if the
facts as stated by the respondents together
with the admitted facts in the applicant's affidavits justify such an
order ... Where
it is clear that the facts, though not formally
admitted, cannot be denied, they must be regarded as admit ted."
[4]
4.
Mr Van Heerden, on behalf of the
respondent submitted that my sister Mamosebo J applied the said test
in the matter of
NDPP v P.D.P.
[5]
Also a matter where confirmation of a
rule
nisi
in respect of a preservation
order was sought. He then went on to reinforce this point by citing
the case of
NDPP V ZHONG
[6]
.
5.
Firstly, Mamosebo J in the
P.D.P.
case
[7]
decided the case on a different basis than the application of the
rule in
Plascon-Evans.
Accordingly,
the application of the rule in
Plascon-Evans
[8]
does not form part of the
ratio
decidendi
of the
P.D.P.
case. The basis on which Mamasebo J
made her decision is to be found at paragraph 22 of the
P.D.P.
judgment. The contents of paragraph
22 of her judgment constitutes the
ratio
decidendi
of the
P.D.P.
case.
6.
Read properly and in the context of the
judgment in the
P.D.P.
matter
as a whole, at most, Mamasebo J was saying that if she had to decide
the matter on the basis that final relief was sought,
then she would
have rejected the version of the respondent in that matter for the
reasons set out in paragraph 16 of her judgment.
[9]
7.
Then, as set out above, Mr Van Heerden
in an
effort
to
strengthen his argument referred to the
ZHONG
case
[10]
.However, the
ZHONG
case
dealt with the question of whether the relevant property should be
finally forfeited to the State under s48 of POCA. Accordingly,
the
law applied in
ZHONG's
case
is not applicable to the present matter.
8.
As the nature of the test to be applied
at the stage of confirming the
rule
nisi
seems to have created some
confusion in this case, it is necessary for me to deal with this
issue.
9.
The rule in
Plascon-
Evans
[11]
applies to final relief. In the
circumstances, it is necessary to deal with the meaning of final
relief in this context. A useful
starting point is to look at the
characteristics of an interim or interlocutory interdict and contrast
this with 'final relief'.
CB Prest
in
his work on
INTERLOCUTORY
INTERDICTS
[12]
sets out 10 characteristics of
interim interdicts. I am not going to quote all of them, but only
those that will assist in the present
exercise. These characteristics
are:
"(a) …;
(b)
it is an interim order of court pending
the final determination of the principal dispute between the parties;
(c)
it is directed at the maintenance of the
status quo
pending
final determination of the matter;
(d) ...;
(e) it
does not involve a final determination of rights and does not
affect
their final
determination;
(f)
...;
(g) ...;
(h) …;
[13]
10.
It is clear from considering the
characteristics of an interim interdict set out above that a final
interdict or final relief is
dependant upon the principal issues of
dispute being resolved finally between the parties. It has nothing to
do with the confirmation
or finalisation of the
rule
nisi
in and of itself.
11.
Looking at the structure of chapter 6 of
the POCA, it is clear that s38 provides for a preservation order
pending an application
for forfeiture of the property concerned under
s48 of that Act. A preservation order thus protects the
status
quo
pending the final determination
of the forfeiture application or the lapse of the time period
contemplated in s40 of POCA. A preservation
order under the
provisions of s38 of POCA is analogous to an interim interdict. In
that sense an application for a preservation
order under s38 of POCA,
even if it is for confirmation of the
rule
nisi,
can never be for final relief
in the sense contemplated in the
Plascon-Evans
case
[14]
.
12.
Accordingly, the test in
Plascon-Evans
has no application in deciding
whether to grant relief in an application for a preservation order
under the provisions of s38 of
POCA. Again, it bears repeating that
it does not make a difference if the court is confirming the relevant
rule nisi,
it
is not final relief in the sense contemplated in the
Plascon-Evans
case
[15]
.
13.
What needs to be established is set out
in the POCA, specifically s38(2) thereof, which reads:
"38(2) The High Court shall
make an order referred to in
subsection (1)
if there are
reasonable grounds to believe that the property concerned-
(a)
is an instrumentality
of an offence referred to in Schedule 1;
(b)
is the proceeds of
unlawful activities; or
(c)
is property associated
with terrorist and related activities."
14.
In other words what needs to be
established by the applicant, at this stage of the proceedings on the
facts of this particular case,
is that reasonable grounds exist for
believing that the property concerned is either an instrumentality of
an offence as defined
in POCA or is the proceeds of unlawful activity
as is also defined in POCA.
15.
The test for 'reasonable grounds to
believe' is that required for an interim interdict, being prima facie
established though open
to some doubt
[16]
.
In addition, it must be objectively determined
[17]
.
16.
The manner in which disputes of fact are
to be resolved at the interim or interlocutory phase of motion
proceedings was also dealt
with by
Prest,
who set out the position as follows:
"The correct meaning, it is
submitted, is that an applicant is required to furnish proof which,
if uncontradicted and believed
at the trial, would establish his
right. The use of the phrase
'prima facie
established though
open to some doubt', however, indicates that more is required than
merely to look at the allegations of the applicant,
but something
short of a weighing up of the probabilities of conflicting versions
is required.
What then is the approach of the
court to be in the face of a dispute of fact on the papers before the
court?
The proper manner of approach is
to take the facts set out by the applicant, together with the facts
set out by the respondent which
the applicant cannot dispute, and to
consider whether, having regard to the inherent probabilities, the
applicant should obtain
relief at the trial. The facts set up in
contradiction by the respondent should then be considered. If serious
doubt is thrown
on the case of the applicant he could not succeed in
obtaining temporary relief, for his right, prima facie established,
may only
be open to some 'doubt'.
This
onus
of proving such
prima facie
right
rests upon the applicants."
[18]
(references omitted)
17.
Whilst Prest refers to trials in the
above passage, it applies equally where the final relief is dealt
with on motion, such as where
a forfeiture order is sought under the
provisions of s48 of POCA.
18.
It is apparent from
the papers before me in this matter that the criminal proceedings
against the respondent have been withdrawn.
This aspect is not
material to the present proceedings as is demonstrated by the
decision of the Constitutional Court in the matter
of
NDPP
v Mohammed NO and Others
[19]
,
where Ackerman
J writing for the unanimous bench set the matter out as follows:
"[17] Section 38 forms part
of a complex, two-stage procedure whereby property which is the
instrumentality of a criminal offence
or the proceeds of unlawful
activities is forfeited. That procedure is set out in great detail in
ss 37 to 62 of the Act, which
form chap 6 of the Act. Chapter 6
provides for forfeiture in circumstances where it is established, on
a balance of probabilities,
that property has been used to commit an
offence, or constitutes the proceeds of unlawful activities, even
where no criminal proceedings
in respect of the relevant crimes have
been instituted. In this respect, chap 6 needs to be understood in
contradistinction to
chap 5 of the Act. Chapter 6 is therefore
focused, not on wrongdoers, but on property that has been used to
commit an offence or
which constitutes the proceeds of crime. The
guilt or wrongdoing of the owners or possessors of property is,
therefore, not primarily
relevant to the proceedings. "
[20]
19.
Turning now to the application before
me. The applicant filed a number of affidavits in support of its
application. The founding
affidavit was deposed to by E B Ontong,
which was supported by the affidavits of J Smit, P L Brink, M P
Lekeka (who filed two affidavits
in support of the founding papers
and a further affidavit in reply), A T Vorster, s B Pylman, W P
Finck, P J P Kleynhans, T Fish,
L M Maila, P C Jood and J B Eland.
20.
The respondent did not deal with the
substance of Ontong's affidavit and only dealt substantively with
Smit's affidavit. Respondent
did not deal substantively with any of
the other affidavits referred to above.
21.
The respondent in his answering
affidavit made the following blanket assertion: "Where I fail to
deal with specific allegations
or submissions made by the applicant,
this should not be construed as an admission or an acceptance
thereof."
22.
It is trite that in motion proceedings
that the affidavits filed constitute both the pleadings and the
evidence. In such circumstances,
a respondent cannot simply put up a
bare denial. The respondent must deal substantively with the case put
forward by the applicant.
In fact, a respondent is required to admit
or deny or confess and avoid every material contention made by the
applicant
[21]
.
It goes further than that a respondent in motion proceedings cannot
simply set out a skeleton of a case based on bald assertions
and
denials
[22]
.
Respondent must flesh out the skeleton with appropriate evidence to
support his version.
23.
For example, if his defence is that he
runs a legitimate business he must furnish appropriate evidence to
support this. If respondent
asserts that he runs a tuck-shop he must
be able to show tax invoices and the like, of sufficient magnitude
from his suppliers
to support the contention that the property in
dispute came from a legitimate source. Similarly, if he claims to run
a small building
business, he can't simply make such assertion
without adducing any records that would be appropriate to such
business. At the very
least such assertions carry very little
evidential weight unless supported by appropriate evidence.
24.
If an assertion made by the respondent
and set out in paragraph 21 above is ever appropriate it would only
be appropriate in very
exceptional and special circumstances. In my
view this is not such a case. Such general treatment of evidence in
such blanket fashion
has the potential to lead to serious anomalies
as is in fact the case in the present matter.
25.
Having set out the framework under which
the evidence in this matter is to be assessed, it is now necessary to
set out the background
facts and the respective cases made out by
both the applicant and the respondent respectively.
BACKGROUND:
26.
The
South African Police Services (SAPS) applied for and obtained a
search warrant to search 423 Angelier Street, Hopetown. It is
common
cause that the respondent resides at that address. The basis upon
which the said warrant was obtained was that there was
reliable
information that the respondent sold drugs from that address. A
quantity of dagga and mandrax as well as the property
concerned (the
R26,849.30) was found at the address set out in this paragraph.
APPLICANT'S CASE:
27.
The property is an instrumentality of an
offence and/or it is the proceeds of unlawful activities related to
the drugs found at
the relevant address.
28.
The search warrant was executed at the
relevant address on Saturday the 30 December 2017. The respondent and
his girlfriend were
present when the warrant was executed. The
respondent was shown the warrant and had its purpose explained to
him.
29.
Sergeant Lekeka (Lekeka) and Constable
Vorster (Vorster) assisted with the search. Lekeka observed and
stated in his supporting
affidavit that the respondent appeared to be
nervous. In the presence of the respondent, they started the search
in the kitchen
of the house.
30.
In the sitting room of the house Lekeka
found what is described as 'a blade of dagga'. According to Lekeka he
asked the respondent
what that was, and respondent replied that "It
was a poke of dagga" but continued that he did not know who put
it there.
31.
Then Lekeka and Vorster searched the
respondent's bedroom and Lekeka found a navy-blue bowl containing a
white plastic bag. Lekeka
opened this white plastic bag and found 162
(one hundred and sixty two blades of dagga) as well as a
transparent plastic bag
containing 13 (thirteen) mandrax pills. The
mandrax and dagga was counted in the presence of the respondent.
While searching respondent's
bedroom and in respondent's cupboard a
locked steel drum was found. Lekeka asked respondent to open the said
drum. Lekeka states
that on respondent receiving this request,
respondent put his right hand in his right trouser pocket and took
out the key and opened
the said drum. It was inside this drum that
the property which is the subject of the present application was
found.
32.
Lekeka then states that he informed the
respondent that he was going to be charged for dealing in drugs.
Respondent, was according
to Lekeka, informed of his rights and was
then arrested. The mandrax, dagga and the property were placed into
separate forensic
bags. The serial numbers of the forensic bags
concerned have been duly recorded.
33.
Lekeka in his second supporting
affidavit filed with the founding affidavit herein records that he
was about to arrest the respondent's
girlfriend on the same charges
when the respondent asked him not to arrest his girlfriend as the
mandrax and the dagga belonged
to him.
34.
Then, according to Lekeka and upon a
chronological reading of both of his affidavits filed in support of
the founding affidavit,
a Sergeant Pylman informed him that he found
a Mr Fredericks sitting on a Dulux paint drum. The drum was searched
and found to
contain loose dagga. In his second affidavit referred to
above, Lekeka states that the respondent asked them not to arrest
Fredericks
because the dagga in the Dulux drum belonged to him.
Fredericks was arrested anyway.
35.
Lekeka and Vorster weighed the drugs at
the police station, and it was found that the 162 blades of dagga
weighed 616 grams. The
loose dagga found in the Dulux drum was
weighed and found to weigh 3,648 kilograms.
36.
Lekeka estimated the street value of the
162 blades of daggas as R3,080.00 (three thousand and eighty Rand).
He estimated the street
value of the 3,648 kg of the loose dagga
found in the Dulux drum at R18,240.00 (eighteen thousand two hundred
and forty Rand).
He estimated the street value of the 13 mandrax
tablets at Rl,300.00 (one thousand three hundred Rand). The total
estimated street
value of all the drugs concerned is R22,620.00
(twenty-two thousand six hundred and twenty Rand).
37.
Lekeka also stated that at the time that
the search was conducted he saw no signs of a tuck-shop business on
the relevant premises.
38.
The pills were tested at the relevant
laboratory and confirmed to be mandrax. There was a mix up on a
material date which was clarified
in reply and need not enjoy any
further consideration.
THE RESPONDENT'S CASE:
39.
Respondent
denies the validity of the search warrant and claims that it was not
legally executed. Respondent denies being present
at the start of the
search. He claims that there was no affidavit from the informant
attached to the warrant and that the name
of the said deponent was
redacted. He also states that Fredericks was not mentioned in the
search warrant. Also, that Sergeant
Pylman was not named as a person
who may execute or assist in executing the relevant search warrant.
Respondent also complained
that the terms of the relevant search
warrant were too broad. Respondent also denies receiving the said
warrant before the search
was conducted and claims that the warrant
was only handed to him later at the police station after his arrest.
40.
The
respondent denies Lekeka's claim that he was nervous and shivering
during the search. Respondent also denied living in the house
and
claimed to live in the yard behind and next to the relevant house.
41.
Respondent
denies admitting that the dagga and mandrax concerned belonged to
him. On respondent's version the police decided not
to charge his
girlfriend at the police station. He also claims that he only saw
Fredericks at the police station and that he was
not present when
Fredericks was arrested.
42.
Respondent
avers that he sells chicken, sweets, snacks and cigarettes from the
garage area of his residence which he operates as
a shop. That the
people found in the yard were his customers for such shop.
43.
Respondent
denies that the relevant property was the amount of R26,849.30
(twenty-six thousand eight hundred and forty-nine Rand
and thirty
cents) and claims the amount seized by the SAPS was in fact the
amount of R28,800.30 (twenty-eight thousand eight hundred
Rand and
thirty cents).
44.
Respondent
also makes certain contentions about the warning statement made by
Fredericks. As a result of the view I have formed
in this matter, it
is not necessary to deal with the issues surrounding what Fredericks
is alleged to have said in his warning
statement.
45.
Respondent
avers that from his tuck-shop business and small business doing
building and painting work he earns an income of R4,000.00
(four
thousand Rand) to R5,000.00 (five thousand Rand) per month. That he
was busy over the Christmas period and did good business.
That the
property concerned was generated by respondent's hard work in the
building and painting business and the tuck-shop business.
Respondent
denied dealing in drugs and that the property was the proceeds of
dealing in drugs.
THE ISSUES TO BE DETERMINED:
46.
In the circumstances of this case, there
are essentially three issues to be decided, being:
46.1.
The admissibility of the evidence
gathered by the execution of the warrant in this matter;
46.2.
Whether the applicant has made out a
prima facie
case
that the property is either an instrumentality of an offence referred
to in schedule 1 of POCA and/or is the proceeds of unlawful
activity;
and
46.3.
Whether the respondent in his answering
affidavit has adduced evidence that raises sufficient doubt as to
justify the refusal of
the interim relief in the form of confirming
the rule nisi pending the forfeiture application under the provisions
of s48 of
POCA.
47.
Turning now to the first of the above
issues. In dealing with the search warrant, Mr Van Heerden and the
respondent contented themselves
with raising all of the grounds which
they allege that make the search warrant and its execution unlawful.
This would possibly
have been sufficient if the present proceedings
were to be decided on the principles of evidence applicable to
criminal law.
48.
In my view of the manner that the matter
is to be approached I do not have to decide whether the search
warrant and its execution
were lawful. I have assumed, without
deciding the question, in favour of the respondent that the warrant
and its execution were
unlawful.
49.
The admissibility, in criminal
proceedings, of evidence obtained by unlawful means violating any
constitutional right is governed
by s35(5) of the Constitution
[23]
.
However, Mr Van Heerden seems to have overlooked the fact that the
proceedings in chapter 6 of POCA are civil in nature and s37
of POCA
provides that the rules of evidence relating to criminal law do not
apply to chapter 6 of POCA. In fact, s37 of POCA reads
as follows:
"37
Proceedings are civil, not criminal.-(1)
For
the purposes of this Chapter all proceedings under this Chapter are
civil proceedings, and are not criminal proceedings.
(2)
The rules of evidence applicable
in civil proceedings apply to proceedings under this Chapter.
(3)
No rule of evidence applicable
only in criminal proceedings shall apply to proceedings under this
Chapter.
(4)
No rule of construction
applicable only in criminal proceedings shall apply to proceedings
under this Chapter."
50.
There are fundamental differences in
character between criminal proceedings and civil proceedings. In
civil proceedings, the default
position is that evidence, as long as
it is relevant, even if it is unlawfully obtained, is admissible
unless the court is convinced
to exercise the discretion it has to
disallow such evidence.
[24]
51.
The respondent has not made out a case
for this court to exercise its discretion to exclude the evidence
obtained in executing the
disputed search warrant. The onus is on the
party seeking to exclude such evidence to make out a case for the
court to exercise
its discretion to exclude such evidence
[25]
.
Respondent has not done this. In these circumstances I cannot exclude
the evidence attained by virtue of the execution of the
said search
warrant.
52.
This disposes of the first issue for me
to determine. Turning now to the second issue, being whether the
respondent has established
reasonable grounds for believing that the
property concerned is either an instrumentality of an offence and/or
the proceeds of
an unlawful activity. I only need to find that it
constitutes at least one of the two options referred to herein.
Having regard
to the evidence that was adduced before me I do not
intend to consider whether the property concerned was an
instrumentality of
an offence set out in schedule 1 of POCA. I will
focus on whether the applicant has established,
prima
facie
on reasonable grounds, that
the relevant property was the proceeds of unlawful activity. In this
case being, dealing in illegal
drugs.
53.
The case that the respondent sets up in
this regard is that he did not know anything about the drugs and that
the drugs were not
found in the part of the premises that he
occupied. Respondent then asserted that the property was income from
his small building
and painting business taken together with the
tuck-shop he alleged that he ran on the premises.
54.
In assessing the respondent's
contentions, it is useful to have reference to the affidavit
respondent filed in his bail application
which he deposed to on the 5
January 2018. This affidavit has also been annexed to the founding
affidavit. In such affidavit respondent
states that he has been
living at the property that was searched being 423 Angelier Street
for 35 years. Respondent lives there
with his three children and the
mother of his youngest child. In such affidavit he states that he
owns a residence to the value
of R60,000.00 (sixty thousand Rand) the
address of the said property is not given. In the circumstances I am
not able to say whether
respondent owns 423 Angelier Street or not.
In such affidavit he also states that he has a small building and
painting business
and runs a tuck shop. That from both of these
sources he earns R4,000.00 (four thousand) to RS,000.00 (five
thousand) per month.
He has fixed expenses in the amount of Rl,600.00
(one thousand six hundred Rand) per month and has approximately
R3,400 (three
thousand four hundred Rand) per month after deductions
on which to live.
55.
The manner in which respondent chose to
deal with the affidavits filed by the applicant in its founding
papers causes the respondent
substantial difficulties and puts
respondent in an anomalous position. The only affidavit that
respondent deals with substantively
is the affidavit of Smit. It is
obvious from reading Smit's affidavit in the founding papers that he
was not there when the events
he attests to took place. It is obvious
that he summarises the affidavits of persons who were involved in the
relevant activities
and then annexes such affidavits as the primary
source of the relevant evidence. These affidavits were marked with
his initials,
being "JS" and then consecutively numbered.
These affidavits included
inter alia
the affidavits of Lekeka.
56.
Respondent chose not to deal
substantively with Lekeka's affidavit. In respondent's answering
affidavit, respondent deals with paragraphs
11 to 16 of Smit's
affidavit together. Paragraphs 15 and 16 of Smit's affidavit
summarises the position set out in paragraph 5
of Lekeka's first
affidavit. In the relevant paragraph of respondent's answering
affidavit, respondent denies living in the house
where the drugs were
found. Respondent, in such paragraph also denies any knowledge of the
dagga and the mandrax.
57.
However, in the next paragraph of
respondent's answering affidavit, respondent deals with the
contentions in paragraphs 17 to 19
of Smit's affidavit in the
founding papers. Paragraphs 17 and 18 of Smit's affidavit in the
founding papers summarises paragraph
6 of Lekeka's first supporting
affidavit. In respect of these paragraphs respondent states that he
notes the contents of paragraphs
17 to 19 of Smit's affidavit in the
founding papers. This means that respondent has dealt with the
contents of paragraphs 17 to
19 of the founding affidavit. In the
context it can mean nothing less than that respondent does not
dispute the contents of paragraphs
17 to 19 of Smit's affidavit. The
general contention made by respondent in paragraph 2.2 of his
answering affidavit, quoted above
cannot assist the respondent in
this context.
58.
Smit's affidavit is, as already set out
above, a summary of the evidence available to the applicant. The
affidavits annexed to Smit's
affidavit in the founding papers
constitute the primary evidence in the circumstances. It is this
primary evidence that the respondent
is obliged to deal with in the
circumstances.
59.
The respondent chose not to deal with
this primary evidence and dealt only with Smit's summary. This left
Respondent in an anomalous
position, which is that: Paragraph 5 of
Lekeka's said affidavit clearly indicates that the bedroom of the
respondent was being
searched; in response to the relevant portion of
Smit's affidavit respondent denies in his answering affidavit that he
lived in
that portion of the house; in paragraph 6 of Lekeka's said
affidavit it is clear that whilst still in the same room, the
respondent's
own cupboard was searched, the steel drum was found in
his cupboard and respondent produced the key from his pocket which
opened
such drum, where the relevant property was discovered; in
noting such allegations the respondent in effect admits them.
60.
The
upshot of this is that at one and the same time, the respondent has
denied that he lives in the relevant portion of the property
and
admitted that his cupboard was found in the same room that he denied
living in, in which the drugs were also in fact found
as well as the
relevant property. Clearly, an untenable position for the respondent
to hold.
61.
The respondent admitted the applicant's
estimated street value of the drugs concerned being R22,600.00
(twenty-two thousand six
hundred Rand). The respondent claims that he
has R3,400.00 (three thousand four hundred Rand) per month on which
to live and support
the four dependants living with him on the
premises. The amount of the property seized is in the order of
R26,849.30. In these
circumstances the respondent's contention that
he did well over Christmas simply lacks any credibility. Such
contention is not
supported by any evidence at all.
62.
In reply and in response to the defences
raised by the respondent applicant has adduced the evidence of a
police officer one Ms
Finck who has lived on the same street as
respondent since 1999. Ms Finck states that there is no tuck-shop run
from the premises
where respondent lives. She also sets out that
respondent's mother lives on the same property as the respondent.
That there are
two brick structures on the property. That each brick
structure has its own entry and that one cannot gain entry from one
brick
structure to the other.
63.
That
there is an iron shanty behind the house which is used as a storeroom
and is not lived in by anyone. Ms Finck's evidence corroborates
that
of Lekeka. It appears from the evidence that only respondent's
extended family lives on the premises concerned. It also appears
that
respondent is the head of the household. In the circumstances, there
can be little doubt that the drugs found inside the residence
were
found in the portion of the premises occupied by the respondent. It
is unlikely to the extent of it being improbable that
the extent of
drugs found in the area of the house and in the house occupied by the
respondent could have been there without him
knowing about it. The
drugs found in respondent's bedroom were barely concealed, being in a
white plastic bag in a bowl. The dagga
found in the living room was
not concealed.
64.
Turning to the third issue to be
decided, being whether respondent adduced evidence that shed
sufficient doubt on applicant's case
to deprive applicant of the
interim relief, which it seeks. Respondent's case consists of mere
bald allegations and simple denials.
If respondent ran a tuck-shop,
he would surely have tax invoices from his suppliers of chicken,
sweets and cigarettes. In these
circumstances, respondent is obliged
to adduce such evidence, bald assertions and mere denials do not put
flesh on the skeleton
that respondent has tried to construct .
65.
In
these circumstances I believe that applicant has established on a
prima facie basis, on reasonable grounds, that the property
was the
proceeds of unlawful activity.
66.
Accordingly, the
rule
nisi
will be confirmed. The only
outstanding issue is the issue of costs. Ordinarily cost would follow
the event, but as the relief is
in effect interim relief, I believe
it would be appropriate to reserve the question of costs for the
court that determines the
forfeiture proceedings, should they be
brought.
ORDER:
1)
The
rule nisi issued on the 25 January 2019 is hereby confirmed.
2)
The
costs of this application are reserved for the court deciding the
forfeiture proceedings.
Lawrence
Lever AJ
Appearances:
Ms
Van Dyk for the applicant oio The State Attorney
Mr
CF Van Heerden oio Andre Potgieter & Partners
Date
of Hearing:
23
August 2019
Date
of Judgment :
11
October 2019
[1]
Act 121 of 1998.
[2]
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634E to 635C
[3]
1957 (4) SA 234 (C)
[4]
Plascon-Evans at 634F citing the dictum in the Stellenbosch Farmers
Winery case
[5]
2017 (2) SACR 577
(NCK) at para [16]
[6]
[2005] ZAGPHC 47
;
2005 (2) SACR 544
(W) at 549h to 550d
[7]
Above, at footnote 5.
[8]
Above, in para [16] of the said judgment.
[9]
PPP matter above at para (16).
[10]
Above, at footnote 6.
[11]
Above
[12]
Juta & Co., 1993 at p 5.
[13]
Prest, above.
[14]
Above .
[15]
Above.
[16]
NDPP v Starplex 47CC
2009 (1) SACR 68
(C); NDPP v Van Heerden
2004
(2) SACR 26
(C) at pp 33-34.
[17]
NDPP v MADATT and OTHERS [2008) ZAWCHC 5 (25 January 2008) para [8]
to [9].
[18]
CB PREST., INTERLOCUTORY INTERDICTS., Juta & Co Ltd., 1993., p
60.
[19]
[2002] ZACC 9
;
2002 (4) SA 843
(CC) at para
[17]
.
[20]
Above at footnote 19.
[21]
Moosa and Another v Knox
1949 (3) SA 327
(N)
at 331.
[22]
NDPP v Mohamed Ali Adan and Another Case No 1759/13 (Unreported
Decision of the Eastern Cape High Court Port Elizabeth) judgment
handed down on the 13 January 2015 at para [21].
[23]
The Constitution of the Republic of South Africa, 1996.
[24]
Hohne v Superstone Mining (Pty) Ltd
(2017) 1 All SA 681
(SCA) at
para (23) as read with para (29) thereof.
[25]
Hohne matter above at para [29].