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
>>
2018
>>
[2018] ZANCHC 37
|
|
Buys and Others v Minister of Police and Another (2339/2016) [2018] ZANCHC 37 (29 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
YES
/
NO
Circulate
to Judges:
YES
/ NO
Circulate
to Magistrates:
YES /
NO
Circulate
to Regional Magistrates:
YES /
NO
CASE
NO:
2339/2016
DATE
HEARD:
22
JUNE 2018
DATE
DELIVERED:
29
JUNE 2018
In
the matter between:
BUYS,
CHARLES
1
st
Appellant
BUYS,
ANDRIES
2
nd
Appellant
BUYS,
CONRAD
3
rd
Appellant
BUYS,
GORDON
4
th
Appellant
MOSSEL,
LOUIS
5
th
Appellant
and
MINISTER
OF
POLICE
1
st
Respondent
HEAD
OF HAWKS, SA POLICE
SERVICE
2
nd
Respondent
Coram:
Williams
ADJP
et
Olivier
J
et
Mamosebo
J
JUDGMENT
Olivier
J:
[1.]
On 26
July 2016, 29 July 2016 and 9 September 2016 members of the South
African Police Service seized property of the appellants,
Mr Charles
Buys (1
st
appellant), Mr Andries Buys (2
nd
appellant), Mr Conrad Buys (3
rd
appellant), Mr Gordon Buys (4
th
appellant) and Mr Louis Mossel (5
th
appellant)
[1]
.
[2.]
Although
it appears that some of the items were seized on the basis of a
search warrant in terms of section 21 of the
Criminal
Procedure Act
[2]
(“
the
Act
”),
other items were seized without such a warrant.
[3.]
The
appellants were arrested and charged with money laundering and
theft. It appears that the charges related to the theft
or
robbery of approximately R37 000 000.00 from a security
firm on 6 May 2016.
[4.]
The
appellants were all subsequently released on bail. The money
laundering charge was withdrawn in August 2016. At
the time of
the filing of the replying affidavit in this matter on 30 November
2016 the criminal proceedings against the appellants
had been finally
postponed to 26 January 2017.
[5.]
In the
meantime the appellants had, however, on 27 October 2016
launched an application for the return of their property.
The
Minister of Police was cited as the first respondent and the “
Head
of the Hawks, South African Police Service, Kimberley Police,
Northern Cape Province
”
as the second respondent. The application was opposed by the
first respondent, but there was never appearance on behalf
of the
party cited as the second respondent. The application was
dismissed on 21 April 2017, on the basis that the parties
would
bear their own costs in the application.
[6.]
The
appellants were subsequently granted leave by the court
a
quo
(Snyders AJ) to appeal to this court. The appeal, which is
opposed by the first respondent, was initially set down for hearing
on 16 April 2018.
[7.]
On that
date the appeal was, however, postponed when we intimated to Mr
Schreuder, counsel for the appellants, and Ms Phakama, the
attorney
of the Office of the State Attorney who represents the first
respondent, that our
prima
facie
view was that the Director of Public Prosecutions, Northern Cape,
should be afforded an opportunity to join.
[8.]
On 8 May
2018, and presumably after the papers in the application had been
brought to the attention of the Director of Public
Prosecutions, the
office of the State Attorney filed a notice to abide on behalf of the
Director of Public Prosecutions.
[9.]
It was
never really in dispute that the Director of Public Prosecutions had
a direct and substantial interest in the subject matter
of the
application, and therefore also of the appeal, in his capacity as the
functionary responsible for the exercise of the “
Power
to institute and conduct criminal proceedings
”
on behalf of the “
prosecuting
authority
”,
as envisaged in the provisions of the
National
Prosecuting Authority Act
,
32 of 1998
[3]
.
[10.]
In her
heads of argument for the first respondent Ms Phakama raised the
objection that the “
National
Prosecuting Authority
”
should have been joined, as that authority had “
prerogative
to bring either preservation or forfeiture application
”.
This submission was presumably made with reference to the provisions
of the
Prevention
of Organised Crime Act
[4]
.
Whether or not the authority responsible for such applications would
have had a sufficient interest to have been joined
as a party in the
application, is not the issue here and need not be decided.
[11.]
Mr
Schreuder has in supplementary heads of argument, filed after the
notice to abide had been filed, submitted that the fact that
the
Director of Public Prosecutions has decided to abide by any decision
taken in this appeal, shows “
that
the DPP had the same view than before, namely not to oppose the
initial application
”.
In support of this submission Mr Schreuder has referred to the fact
that the deponent for the first respondent had
in the answering
affidavit stated that the police had “
informed
the National Prosecuting Authority and it is in their discretion to
consider whether to bring an application for forfeiture
or not
”.
[12.]
In the
first place it is by no means clear from the statement that the
National Prosecuting Authority had indeed been alerted of
the
application and of the relief claimed therein, as opposed to having
been alerted of the seizure of the property and of the
charge/s
against the appellants.
[13.]
More
importantly though, it would seem that Mr Schreuder confused the role
that the National Prosecuting Authority plays in terms
of the
provisions of the
Prevention
of Organised Crime Act
with the role that it plays in terms of the
National
Prosecuting Authority Act
,
and more specifically the role that the Director of Public
Prosecutions in this province plays in the exercise of the power to
institute and conduct criminal proceedings.
[14.]
It
follows that the Director of Public Prosecutions in this province
should, especially in view of the fact that the charge of theft
had
not yet been withdrawn at the time when the application was launched,
have been joined as a respondent and that he had a direct
and
substantial interest in the application at that stage. That
interest remains relevant in the appeal,
inter
alia
as regards the effect of the eventual decision to withdraw the theft
charge against the appellants, with which I will deal in due
course.
[15.]
Ms
Phakama argued
in
limine
that
no notice of appeal was filed as required by the provisions of
Uniform Rule 49(2) and that there was, as a result of that failure,
in effect no appeal before us. She had to concede that the
first respondent has not been prejudiced by this failure.
The
grounds of appeal were set out in the supporting affidavit in the
application for leave to appeal and the court
a
quo
,
in granting leave to appeal, made it very clear in respect of which
of those grounds leave were being granted. Insofar as
it may be
necessary condonation is therefore granted. Almost two years
have gone by since the property of the appellants
was seized and it
would, especially in view of what follows, not be in the interests of
justice that the hearing of the appeal
is further delayed on the
basis of what is clearly at most a technical objection.
[16.]
The
relevant provisions of section 31(1)(a) of the Act read as follows:
“
If
no criminal proceedings are instituted …
or
if it appears that such article is not required at the trial for
purposes of evidence or for purposes of an order of court, the
article shall be returned to the person from whom it was seized …
”
.
(my emphasis)
[17.]
Prior to
the hearing of the application, and as an annexure to the heads of
argument on behalf of the appellants, the appellants
attempted to
introduce an affidavit by their attorney to the effect that the
criminal proceedings against them had been withdrawn
on 26 January
2017, in other words on the date to which the proceedings had been
remanded before, on the basis that it was
the final postponement.
[18.]
It
appears from the judgment of the court
a
quo
that the affidavit was disallowed, on the basis that it had been
irregularly introduced and that the first respondent was “
not
ad idem with the contents thereof
”.
We were informed from the Bar that it had in fact been common cause
that the criminal matter had been withdrawn,
and that the problem
that Ms Phakama at the time had with the contents of the affidavit
was only that it was not mentioned that,
according to her
information, the withdrawal had been a “
provisional
”
one.
[19.]
The court
a quo
proceeded to distinguish
Choonara
v Minister of Law and Order and Others
[5]
,
Venter
v Minister Van Polisie
[6]
and
Dookie
v Minister of Law and Order
[7]
on the basis that, unlike in those cases, legal proceedings had in
the present matter indeed been instituted. It was furthermore
remarked that the appellants would have been better off had they
brought their application after the charges against them had been
withdrawn. It is very clear from the judgment that the court
a
quo
chose to disregard not only the contents of the affidavit, but also
what had clearly (as appears from the judgment) been conveyed
to the
court
a
quo
from the Bar.
[20.]
In this
the court
a
quo
was in my view, with respect, wrong. The affidavit had
undoubtedly been introduced irregularly, but it was common cause,
very clearly, that the criminal proceedings against the appellants
had at that stage indeed been withdrawn, whether provisionally
or
otherwise, and whether or not the criminal proceedings against the
appellants remained instituted at the time when the court
a
quo
had to consider whether the property should be returned to the
appellants was a crucial issue in the exercise of its discretion
in
this regard. The court
a
quo
had the discretion to allow this further affidavit in the interests
of justice, or at the very least take into account what it
had been
informed of from the bar
[8]
, and
as will appear from what follows it would have caused no prejudice to
the first respondent if cognisance was taken of the
fact of the
withdrawal, even if only on the basis that the intention had been to
withdraw the remaining charge on a provisional
basis only.
[21.]
In
National
Director of Public Prosecutions and others v Freedom under Law
[9]
Brandt JA remarked as follows:
“
I
do not believe a decision to withdraw a criminal charge … can
be described as ‘provisional’ just because it
can be
re-instituted. It would be the same as saying that because a
charge can be withdrawn, the institution of criminal
proceedings is
only provisional. As I see it, the withdrawal of a charge in
terms of section 6(a)
[10]
is final. The prosecution can only be
recommenced by a different, original decision to re-institute the
proceedings.
Unless and until it is revived in this way, the
charge remains withdrawn.
”
[11]
[22.]
This
means that the withdrawal of the theft charge, even if only intended
as a provisional withdrawal, brought the criminal proceedings
to an
end. At the time when the court
a
quo
had to consider the application, the criminal proceedings had not
been re-instituted. Therefore, for purposes of section
31(1)(a)
of the Act, there were no pending criminal proceedings at the time
when the court
a
quo
had to consider whether to order the return of the goods to the
appellants.
[23.]
The
Police had by then already been in possession of most of the property
for approximately nine months and “
the
deponent(s) for the (first) Respondents (did not) give any indication
of what avenues of investigation remain unexplored; nor,
indeed, is
there any averment that such avenues exist
”
[12]
.
Almost
three months had expired since the withdrawal of the remaining charge
against the appellants, without any indication,
on the papers, that
the criminal proceedings would be reinstituted. In my view the
appellants had on the evidence before
the court
a
quo
discharged their
onus
to show that “
there
was no reasonable likelihood of criminal proceedings being instituted
in connection with the article in the foreseeable future
”
[13]
.
More than a reasonable time within which to have instituted criminal
proceedings had lapsed since the seizure of the property
[14]
and there was no explanation before the court
a
quo
for the fact that the proceedings that had been instituted, had been
withdrawn. On this basis alone the appellants were in
my view
entitled to an order for the return of their property.
[24.]
I will
however, in case I am wrong in this conclusion, consider the
alternative basis for the return of the property that is provided
for
in section 31(1)(a) of the Act,
viz
that the return of the property can also be ordered if “
it
appears that such article is not required at the trial for purposes
of evidence or for purposes of an order of court
”.
[25.]
In
Abubakar
v Minister of Police and others
[15]
the following was stated as regards the burden of proof in
circumstances such as these:
”
Where the reasonableness of the further
detention of the article is challenged, …, general principles
dictate that the onus
is on the State to place facts and
circumstances before the Court on which such reasonableness may be
adjudged.
”
[26.]
The
property of the third appellant that is concerned is a Nokia cell
phone with a value of approximately R200.00 and shoes with
a value of
approximately R2 500.00 that were seized on 26 July 2016.
The first respondent did not make an allegation,
let alone provide
proof, that this cell phone or the shoes could at a criminal trial of
the third appellant be “
required
… for purposes of evidence or for purposes of an order of
court
”.
No evidence was, for example, produced as to when or how these items
had been purchased.
[27.]
Exactly
the same applies to the property of the fourth appellant that was
seized on 29 July 2016,
viz
a lounge suite, a TV Samsung Curve Set, a TV stand, two beds, a
microwave oven and a number of speakers.
[28.]
The
property of the fifth appellant that had been seized was a black Opel
Corsa vehicle, which was seized on 9 September 2016.
According to the deponent for the first respondent the vehicle was
seized because the fifth appellant could be “
linked
”
with the first four appellants and because the vehicle had been
purchased for an amount of R75 000.00 after the date
of the
theft at the security company. No attempt at all was made to
explain what the so-called “
link
”
was.
[29.]
It was
furthermore alleged, by the same deponent, that “
All
investigations up to date reveal that none of the Applicants at the
time when these items were bought had sufficient funds available
to
purchase the items. The only reasonable deduction that we could
make was that these items were bought with stolen money
”.
Needless to say this statement was bald, sketchy and completely
lacking in detail. What investigations were
made as far as the
fifth appellant was concerned and what exactly were the results
thereof?
[30.]
There was
no allegation that the amount of R75 000.00 had been paid in
cash. There was therefore no evidence on the basis
of which it
could be said that this vehicle could reasonably be “
required
at the trial for purposes of evidence or for purposes of an order of
court
”.
It is in any event not clear why the particular vehicle would have
had to be available to be presented as an exhibit
for purposes of
proving the transaction and the amount of the purchase price, and the
decision of the Director of Public Prosecutions
to abide has not shed
any light on this.
[31.]
In the
case of the second appellant the police had on 26 July 2016 seized a
Nokia cell phone to the value of R200.00, as well as
a Blackberry
cell phone and a laptop in respect of which no particulars were
provided as to their value. The first respondent
produced no
evidence of any basis upon which these items could be required at a
criminal trial for any of the purposes envisaged
in section 31(1)(a)
of the Act. No allegations were made, for example, as to when
or how these items were purchased.
On the available evidence it
is not clear how the availability of these items, as exhibits, could
by any stretch of the imagination
assist the prosecution to prove
that the second appellant is guilty of theft of the money at the
security company.
[32.]
On
29 July 2016 the police also seized a BMW vehicle belonging to
the second appellant. It seems to be common cause that
it was a
2006 model, but no particulars are available of when the vehicle was
purchased and what the purchase price was.
The deponent for the
first respondent stated that the purchase price had been paid by
means of three cash deposits. It was
the version of the second
appellant that the purchase price had been paid from the proceeds of
the sale of two other vehicles.
The deponent for the first
respondent countered by saying that no sign could be found on the
registration system of the sale of
two other vehicles of the second
appellant. The general allegation already referred to as
regards the insufficient funds
of the appellants to purchase the
items is assumed also to have been intended to apply to this
appellant and this vehicle, but
again the complete lack of detail
would have made it impossible for the court
a
quo
to draw any inferences from this statement.
[33.]
Even if
it is assumed that the BMW vehicle was purchased after the date of
the theft, and even if there had been proper evidence
before the
court
a
quo
as regards the funds available to the second appellant and the
purchase price of the vehicle, it is once again not clear how the
physical presence of that vehicle was going to further assist the
prosecution to prove that the purchase price had been paid from
money
that had been stolen. That the vehicle had been purchased was
clearly not going to be in dispute, and on the first
respondent’s
own version the Police would seem to have had all the relevant
information as regards how the purchase price
was paid and what the
second appellant’s financial means were at the time.
[34.]
This
brings me to the first appellant. On 26 July 2016 a Ford
Focus vehicle belonging to the first appellant was seized
by the
police. It was common cause that it was a 2009 model, that the
first appellant had purchased the vehicle at Human
Motors, that the
purchase price had been financed by Nedbank and that the monthly
instalment was R3 263.40 per month.
[35.]
The first
respondent supplied no particulars as to when exactly the vehicle was
purchased and as to whether or not a deposit had
been paid.
There was therefore, on the papers, simply no evidence which could
provide a basis for saying that the availability
as an exhibit of
this vehicle could reasonably be required for purposes of evidence or
for the purpose of an order of court in
criminal proceedings on a
charge of theft.
[36.]
On
29 July 2016 the police seized a Nokia cell phone (value
R600.00) and three vehicles,
viz
a Tata, a Toyota Quantum and a Corsa bakkie, and a trailer, all
belonging to the first appellant.
[37.]
As
regards the cell phone, no particulars were provided by the first
respondent as to exactly when the cell phone was purchased
and in
what way it was expected to be required at the trial for purposes as
envisaged in section 31(1)(a) of the Act.
[38.]
As
regards the vehicles and the trailer, the deponent for the first
respondent stated that they had all been purchased after the
date of
the theft, the Tata for R365 000.00 in cash. On the same
day the first appellant purchased the Corsa vehicle
for R122 816.41,
again in cash. It is not clear exactly when the Toyota Quantum
vehicle was purchased, but the case
of the first respondent was that
the first appellant had paid an amount of R64 500.00 in cash as
a deposit on that transaction,
as well as a first instalment of
R11 500.00, also in cash. The case for the first
respondent, as enunciated in the general
and vague statement that I
have already alluded to, was that the first appellant did not have
other funds, than the stolen money,
with which to have paid these
amounts.
[39.]
As
regards the ability of the first appellant to have paid the amounts
from funds not derived from the theft, the statement by the
deponent
for the first respondent was, as was the case in respect of other
items that had been purchased after the date of the
theft, lacking in
any detail and completely vague.
[40.]
It was
not disputed that the vehicles and the trailer had been purchased,
and also not that the date of the theft preceded the dates
of the
purchases. Once again, however, it is not clear how the
physical presence of the vehicles and the trailer would help
the
prosecution to prove, by means of those exhibits, that the relevant
amounts had been paid with stolen money or with money that
constituted the proceeds of the theft. To put it another way,
it is not clear why the prosecution would not have been able
to prove
those transactions, and the first appellant’s financial
position, without presenting the vehicles and the trailer
as
exhibits. The fact that the Director of Public Prosecutions has
seen fit to abide, and to file no affidavit, has left
this court in
the position where it has to draw the inference that the availability
of these items as exhibits would not have taken
the matter any
further.
[41.]
It was
common cause that the first appellant had, when the police officers
were going to seize the Toyota Quantum vehicle, presented
them with a
document, a copy of which was also annexed to the founding affidavit.
The document clearly pertains to a credit agreement
between SA Taxi
Association (Pty) Ltd and the first appellant in respect of a 2011
vehicle. It was also common cause that
the vehicle that was
seized was a 2016 model. The deponent for the first respondent
apparently interpreted the contents of
the document as somehow
contradicting what the first appellant had been trying to convey to
the police officers by showing them
the document.
[42.]
However,
the first appellant’s explanation for this, given in his
founding affidavit already, was that the document had been
presented
merely as an example of how he purchased vehicles with the financial
assistance of SA Taxi Association (Pty) Ltd, and
therefore not to
convey that the seized vehicle was indeed the vehicle described in
the document. This explanation was never disputed.
[43.]
In
paragraph 17 of the judgment of the court
a
quo
it was, however, nevertheless found that it was the appellants’
case that the “
Quantum
taxi seized
”
was a 2011 model and that it was the subject of “
the
financial statement
”
attached to the founding affidavit. This finding is, with respect,
wrong and it is not borne out by the undisputed evidence.
Insofar
as the finding may have implied that the first appellant had through
this attempted to mislead the police officers,
this too would have
been wrong.
[44.]
The
conclusion to which I have come, as regards the alternative basis
provided for in section 31(1)(a) of the Act, is therefore
that the
first respondent had not discharged the
onus
of showing that the property “
(was)
….. required at the trial for purposes of evidence or for
purposes of an order of court
”
.
[45.]
It is
therefore not necessary to consider whether all of the property had
been lawfully seized. Suffice it to say that, as
far as the
property that was seized without a warrant is concerned, the first
respondent did not so much as allege that the police
officers
involved “…
on
reasonable grounds believe
(d)
–
(i)
that
a search warrant
(would)
be
issued … under paragraph (a) of section 21(1) if …
applie
(d)
for …;
and
(ii)
that
the delay in obtaining such warrant would defeat the object of the
search
”
as
required by the provisions of section 22(b) of the Act.
[46.]
In the
circumstances I am of the view that the return of the property to the
appellants should have been ordered, and that the order
dismissing
the application for an order to that effect should be set aside.
There is no reason why the costs of the appeal
should not follow this
result.
[47.]
This
would mean that the appellants had been successful in the
application, and it has not been argued that they would not in such
event have been entitled to their costs.
[48.]
As
regards the costs occasioned by the postponement to afford the
Director of Public Prosecutions the opportunity of joining, which
were reserved for later determination, I am of the view, in the light
of what I have already said in this regard, that the appellants
should pay those costs.
[49.]
In the
premises the following orders are made:
1.
THE
APPEAL SUCCEEDS AND THE ORDERS OF THE COURT
A
QUO
THAT:
“
1.
The application is dismissed.
2.
Each
party is to pay their own costs.
”
ARE
SET ASIDE AND SUBSTITUTED WITH THE FOLLOWING ORDER:
“
1.
THE RELIEF SOUGHT IN PARAGRAPH 1 OF THE NOTICE OF MOTION DATED
27 OCTOBER 2016 IS GRANTED.
2.
THE FIRST RESPONDENT IS ORDERED TO PAY THE COSTS OF THE APPLICATION.
”
2.
THE
FIRST RESPONDENT IS ORDERED TO PAY THE COSTS OF THE APPEAL, INCLUDING
THOSE OF THE APPLICATION FOR LEAVE TO APPEAL.
3.
THE
APPELLANTS ARE ORDERED TO PAY THE COSTS OCCASIONED BY THE
POSTPONEMENT OF THE APPEAL ON 16 APRIL 2018.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
_____________________________
C
C WILLIAMS
ACTING
DEPUTY JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
I
concur.
_____________________________
M
MAMOSEBO
JUDGE
NORTHERN
CAPE DIVISION
For the
appellants:
ADV. JJ SCHREUDER
(Instructed by
Legal
Aid South Africa, Kimberley
)
For the respondents:
MS N PHAKAMA
(Instructed by
Office
of the State Attorney
)
[1]
Erroneously cited in the heading of the application as Louis Buys
[2]
51 of 1977
[3]
See,
inter alia
, the provisions of section 20 of the said
Act.
[4]
121 of 1998
[5]
1992 (1) SACR 239
(W) (Also reported at [1992] 3 All SA 585 (W))
[6]
2014 JDR 0373 (GNP)
[7]
1991 (2) SACR 153
(D) (Also reported at [1991] 1 All SA 390 (D))
[8]
Compare
Venter v Minister Van Polisie
,
supra
, p 3
[9]
[2014] 4 All SA 147 (SCA)
[10]
Of the Act
[11]
Ibid
, para [34]
[12]
Dookie v Minister of Law and Order
,
supra
, at 156 a
[13]
Ibid
, at 156 d
[14]
See
Choonara v Minister of Law and Order and Others
,
supra
,
at 246 g
[15]
[2015] JOL 34129
(GJ) (2014 JDR 1238 (GJ) para [24]