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[2018] ZALMPPHC 70
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National Director Of Public Prosecutions v Maila (84/2017) [2018] ZALMPPHC 70 (20 September 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER
JUDGES
(3)
REVISED
CASE NO: 84/2017
20/9/2018
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
and
JOHNNY
BESAPHI
MAILA
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1] This
is an application for a forfeiture order in terms of section 48 read
with section
50 of the Prevention of Organised Crime Act 121 of 1998
(POCA) to have the property of the Respondent, to wit, a Toyota Hilux
3.0
Bakkie with registration number [….], a White Toyota
Conquest motor vehicle with registration number [….] (also
referred
to as a Tazz motor vehicle in the papers before me) and cash
in the amount of R 92 100.00 seized by the Police ("the
property")
on 22 January 2016 forfeited to the State.
[2] The
basis for this application is that the property was used in the
commission
of an offence listed in Schedule 1 of POCA and / or the
proceeds of unlawful activities and therefore subject to forfeiture.
The
application is opposed by the Respondent on the basis that the
property was not used as an instrumentality in the commission of
the
offence and
I
or
that the property is not proceeds of any unlawful activities.
[3] The
following facts are common cause or not seriously disputed by the
Respondent:
3.1. The
Respondent was arrested by members of the South African Police
Service on 22 January
2016 for contravention of the provisions of the
Drugs and Drug Trafficking Act 140 of 1992 (illicit dealing in drugs)
and for the
contravention of the provisions of the Firearms Control
Act 60 of 2000 (unlawful possession of firearm).
3.2. During
the Respondent's arrest the police seized among other things cash
amount of
R 91 000.00 found in the safe in the Respondent's house, a
white Toyota Conquest motor vehicle, a Toyota Hilux 3.0 Bakkie and a
cash amount of R 1 100.00 found in the Toyota Conquest motor vehicle.
3.3. On
25 January 2016, the Respondent appeared in the Groblersdal
Magistrate Court together
with one Tshepo Cebeni. The said Tshepo
Cebeni was driving the aforesaid Toyota Conquest motor vehicle during
his arrest. They
were both released on bail and currently the
Respondent's trial is still ongoing. Tshepo Cebeni has since
disappeared and thus
evaded trial.
3.4. The
Respondent is the registered owner of the Toyota Hilux Bakkie and
Toyota Conquest
motor vehicle which are subject of the order sought
by the Applicants. The said Tshepo Cebeni was at all material time
hereto the
employee of the Respondent.
3.5. During
January 2017, the Applicant made an application for a preservation of
property
order in terms of section 38 of POCA and this Court granted
the said order on 13 January 2017. The said Court order together with
the preservation application were served on the Respondent on 26
January 2017. On 8 February 2017 the Respondent filed a notice
of his
intention to oppose the making of a forfeiture order in terms of
section 39(3) accompanied by an affidavit in terms of section
39(5)
of POCA.
3.6. The
Applicant filed an application for a forfeiture order in terms of
section 48 of
POCA on 11 May 2017 and served same on the Respondent's
legal representative on 13 May 2017. The Respondent filed his
answering
affidavit and served same on the Applicant's legal
representative on 31 July 2018. On 17 August 2018 the Applicant
served his replying
affidavit on the Respondent's legal
representative and same was filed at Court on 20 August 2018.
3.7. The
Respondent's answering affidavit was served and filed out of time and
no substantive
application for condonation was made. Hence the
Applicant has raised point
in limine
in this regard and prays that the
answering affidavit be excluded in these proceedings.
FACTUAL BACKROUND
[4] During
2014 the South African Police Service, Polokwane Organised Crime
Investigation
Unit conducted an operation under project name Drosdy
Hof. The purpose of the said operation was to investigate cases of
drugs
trafficking, sale and use of drugs by young people in and
around Groblersdal and Marble Hall. During that operation the police
used the undercover operations and traps for them to succeed in
dealing with drug dealers. Several undercover operations were
conducted
from December 2014 until January 2016 when the Respondent
was arrested.
[5] The
police had identified targets and used agents in order to buy drugs
from
the said targets. The Respondent was one of the identified
targets. During the operations the police agent managed to buy drugs
from the Respondent and his runners on four occasions. During the
operations all the drugs bought from the Respondent and his runners
were sent to SAPS Forensic Science Laboratory in Pretoria for
analysis. The analysis results came back showing that the drugs
bought from the Respondent and his runners contained diacetylmorphine
(heroin) and cocaine.
[6] In
the present case the Applicant's case is based on the evidence of the
following
persons: -
6.1.
T T M (deponent to the founding affidavit).
6.2.
Jacobus De Wet Du Toit (a Police Captain attached to the Limpopo
Provincial Organised Crime Unit).
6.3.
Kgabo Nicholas Masoga (a detective Warrant Officer and investigating
officer in the pending criminal case against the Respondent).
6.4.
N R M (an undercover police agent and a Constable in the SAPS).
The Respondent's version is
contained in his own answering affidavit with no supporting
affidavits and/ or supporting documents.
Events leading to the arrest of
the Respondent and Tshepo Cebeni
[7] According
to Captain Du Toit, Detective R M of the SAPS Provincial Detectives
in Polokwane was used as an agent to buy drugs from the Respondent
and Tshepo Cebeni on 22 and 29 January 2015 and 13 and 20 February
2015.
[8] On
the 22 January 2015 Constable M contacted Tshepo Cebeni and made
arrangements
to meet Tshepo at Jabulani Tavern in Groblersdal. Tshepo
took Constable M into Jabulani Tavern where they found one Raymond.
The
latter was also a runner. Constable M bought 40 sachets of nyaope
from Raymond for an amount of R 1 200.00.
[9] On
the 29 January 2015 the investigation team conducted another
operation at
Groblersdal to trap and buy drugs called Nyaope and
Cocaine from Tshepo and Raymond. Constable M was again the agent used
to buy
the drugs. The sale of the drugs took place at Jabulani
Tavern. Constable M bought 33 sachets of Nyaope for R 30.00 each and
10
packets of Cocaine at R 40.00 each from Raymond.
[10] On 13
February 2015 the investigation team conducted another operation at
Groblersdal. The operation
was to conduct a trap and buy Nyaope and
Cocaine from Tshepo and the Respondent. Constable M was again the
agent used to buy the
drugs. Constable M met Tshepo next to Jabulani
Tavern. Using Constable M's phone Tshepo called the Respodent and
told him that
he had a client who wanted to buy Nyaope and Cocaine
for an amount of R 2 000.00. The Respondent arrived at the tavern
driving
a maroon Toyota Hilux motor vehicle with registration number
[….]. The Respondent went into the tavern and Constable M
followed
him into another room inside the tavern. Constable M bought
34 sachets of Nyaope and 25 small plastics of Cocaine from the
Respondent.
[11] On the 20
February 2015 another operation was conducted to trap and buy Nyaope
and Cocaine from
Tshepo and the Respondent. Constable M was again·
the agent used to buy the drugs. Constable M met the Respondent at
Jabulani
Tavern. Again the Respodent was using his Toyota Hilux motor
vehicle. At Jabulani Tavern the Respondent sold 38 plastic sachets
of
Cocaine for an amount of R 1 500.00 and 50 sachets of Nyaope for an
amount of R 1 500.00 to Constable M.
The arrest of Tshepo and the
Respondent
[12] On the 22
January 2016 the SAPS members conducted a take-down on Operation
Drosdy Hof. The Respondent
and Tshepo were arrested during this
operation. The Respondent was arrested at his place of residence at
[….]. When arresting
the Respondent, the SAPS members searched
the Respondent's house. In the main bedroom they found cash in the
amount of R 91 000.00
inside a safe. In the main bedroom and inside
the clothing cabinet the police found the following hidden amongst
the clothes:
•
A 303 rifle and magazine with 40 rounds of ammunition;
•
25 rounds of ammunition for a 38 Special revolver;
•
21 rounds of ammunition for an AK47 machine gun;
•
A police officials bullet proof vest and an ordinary bullet proof
vest.
[13] The
Respondent was then arrested for possession of unlicensed firearm,
possession of ammunitions,
possession of police bullet proof vest and
dealing in drugs. The police seized the cash as it was believed to be
from his illegal
dealings in drugs and the other items as
instrumentalities of unlawful activities. When asked about his Toyota
Hilux motor vehicle,
the Respondent informed the police that the
vehicle was with his brother around Marble Hall. The motor vehicle
was seized by the
police later on that day.
[14] When asked
about the source of the cash found in the safe, the items found in
his bedroom and
the licences for the firearms and the ammunitions,
the Respondent refused to give any answers to the police indicating
that would
give his statement in Court.
[15] Tshepo as
arrested at Jabulani Tavern. The police found him sitting inside the
Toyota Conquest
motor vehicle with registration number [….].
From the search, the police officers found a small trunk on the front
passenger
seat inside the motor vehicle. Inside the trunk they found
31 small wrapped papers containing dagga and 4 smoking pipes. They
also
found cash in the amount of R 1 100.00. The police seized all
the items and the Toyota Conquest. They seized the cash as it was
believed to be proceeds of Tshepo's illegal dealings in drugs and the
Toyota Conquest as it was believed to have been used as an
instrument
of unlawful activities, to wit dealing in drugs by Tshepo.
Issues
for Determination
[16]
The Applicant's case is that:
16.1. A Toyota Hilux
3.0 Bakkie with registration number [….] and a Toyota Conquest
motor vehicle with registration
number [….] are the
instrumentalities of an offence referred to in Schedule 1 of POCA,
namely dealing in drugs; and
16.2. The cash in the
amount of R 91 000.00 found in the safe in the Respondent's house and
cash in the amount of R
1 100.00 found in the white Toyota Conquest
motor vehicle are the proceeds of unlawful activities.
[17]
The case for the Respondent is based on the following:
17.1.
That
both the Toyota Hilux Bakkie and the Toyota Conquest motor vehicles
are his property.
17.2.
He
has been a taxi operator for a long time dating back to the early
nineties. He is also running Jabulani
Tavern although the licence has
changed and his brother is involved in the operation therein.
17.3.
That
the amount of R 91 000.00 that was found in his house constitutes the
proceeds of the two businesses
he runs. He indicated that the amount
was accumulated over a period of a month.
17.4.
He
denies that the said amount is the proceeds of illegal activities and
that the seized motor vehicles
are the instrumentalities of an
offence as alleged by the Applicant.
Legal Framework
[18] The
purpose of POCA is in the main, designed to combat the spiraling wave
of organized crime and to
provide legislative mechanism of depriving
criminals in general, of the proceeds of unlawful activity. The
mechanism for such deprivation
of the benefits of a criminal activity
is either through Chapter 5, which is dependent on a successful
prosecution and conviction
of the offender, when only then the
proceeds of unlawful activity can then be declared forfeited to the
State, or through Chapter
6 which is not conviction -
based
but may be invoked even when there is no prosecution. See
National
Director of Public of Prosecutions v Mohamed NO
[1]
.
[19] In
National Director of Public
Prosecutions v Van Staden and Others
[2]
,
dealing
with the provisions of Chapter 6 of POCA, Nugent JA remarked that:
"It
has
been said, at times, that the purpose
of the
Prevention of Organised Crime Act 121 of 1998
is to combat the
special evils that are associated with organized crime, but that
is
not entirely correct. That is
certainly one of its purpose, and perhaps even its principal purpose,
but
as
pointed
out by this Court in National Director of Public Prosecutions v R
O
Cook Properties (Pty) Ltd; National
Director of Public Prosecutions v 37 Gillespie Street Durban (Pty)
Ltd and Another; National
Director of Public Prosecutions
v
Seevnarayan
[3]
,
its provisions are designed to reach far beyond organized crime and
apply
also
to
cases
of
individual wrongdoing."
[20] Under
Chapter 6 a forfeiture order would be preceded by a preservation
order in terms of
section 38
and followed by the forfeiture order
irrespective of whether there is a prosecution or not. The Sate need
only place before the
Court facts which on a balance of probability
show that the property sought to be forfeited as proceeds of unlawful
activity should
be declared forfeited to the State in terms of
section 50
of POCA
[4]
.
[21] That
POCA is draconian
[5]
and invasive, was reiterated and confirmed by Bosielo AJA (as he then
was) writing for the Court in the matter of Mazibuko and
Another v
National Director of Public Prosecutions
[6]
,
through the following remarks:
"[22] It
is
generally
acknowledged that the effects of forfeiture are draconian and
potentially invasive of the rights of people to their properties.
There
is
an
ever-present threat of
a
serious conflict
between the right to property
as
provided in
s
25(1) of the
Constitution and an order for the forfeiture of property under 50(1)
of POCA which can result in far-reaching consequences
if not managed
with care. I agree with Nkabinde J in Prophet v National Director of
Public Prosecutions
[7]
where she expressed the
following caution: "While the purpose and object of ch 6 must be
considered when
a
forfeiture order
is
sought,
one should be mindful of the fact that unrestrained application of ch
6 may violate constitutional rights, in particular
the protection
against arbitrary deprivation of property particularly within the
meaning of
s
25(1) of the
Constitution, which requires that no law may permit arbitrary
deprivation of property. In First National Bank of SA
Ltd t/a Wesbank
v Commissioner, South African Revenue Service and Another; First
National Bank of SA Ltd t/a Wesbank v Minister
of Finance (FNB)
[8]
this Court held that
arbitrary in
s
25(1)
means
that the law
allowing for the deprivation
does
not provide
sufficient reason for the deprivation or allows deprivation that
is
procedurally
unfair. The Court said:
"(F)or the validity of
such deprivation, there must be an appropriate relationship between
means and end, between the sacrifice
the individual
is
asked to make and
the public purpose this
is
intended to
serve.
It
is one that
is
not limited to an
enquiry into mere rationality, but
is
less
strict than
a
full
and exacting proportionality examination."
[22] In the
Prophet matter
[9]
it was also held that:
"the
general approach to forfeiture, once it had been established that the
property
was
an
instrumentality of an offence,
was
to embark on
a
proportionality inquiry
-
weighing the severity of interference
with individual rights to property against the extent to which the
property had been used
in commission of the offence."
This
approach, in my view, also holds well in instances of the innocent
bystander as well as in dealing with proceeds of crime.
Findings and Conclusion
[23] The Court
called upon to decide the forfeiture issue, is not called upon to
decide the veracity
of the evidence placed before it. It suffices, if
the evidence satisfies the Court that there is a reasonable ground to
believe
that, the affected properties are proceeds of unlawful
activities. On the other hand the Respondent had to satisfy the Court
on
a balance of probabilities that it is not necessary to grant a
forfeiture order. It is not enough, in my view, for the Respondent
to
make bold statements of denial of criminality or that the properties
are not the instrumentalities of an offence.
[24]
Crucial and damning allegations contained in the Applicant's founding
affidavit and supporting affidavits
have not been dealt with and/ or
challenged by the Respondent. The Respondent merely stated that the
properties have been acquired
lawfully in that he is a businessman
operating a tavern, Jabulani Tavern, and that he operates a taxi
business. The Respondent
failed to support this version by at least
attaching copies of financial statements and motor vehicle carrier
permits to his answering
affidavit. These documents can easily be
made available if indeed the Respondent is earning a living through
such lawful means.
In any event the evidence before me is that the
Jabulani Tavern is being run by the Respondent's brother who runs
same on his own
account.
[25] It needs to
be mentioned that the Respondent did not make a full disclosure of
his defence to
the allegations mentioned above. The essence of his
defence is a denial of being involved in any criminal activities and
that the
properties mentioned are not the instrumentalities of an
offence or proceeds of criminal activities. In my view, regard being
had
to the above evidence placed before the Applicant and before this
Court, and the response of the Respondent to the allegations leveled
against him, the inference to be drawn is that the evidence is
overwhelming and making this Court to conclude that the properties,
including the cash amount are indeed the instrumentalities of an
offence and proceeds of unlawful activities.
[26] In view of
the conclusion I have arrived at on the merits of this application, I
do not find it
necessary to make a ruling on the
point
in limine
raised by the Applicant
with regard to the late filing of the Respondent’s answering
affidavit. The Applicant was not prejudiced
by the late filing of the
answering affidavit in as much as the Applicant had an opportunity to
file its replying affidavit on
17 August 2018, almost a month before
the hearing of this application on 10 September 2018.
[27] For
all the above reasons the following order is granted:
1. It is declared
that the Toyota Hilux 3.0 Bakkie with registration number [….]
and the white
Toyota Conquest motor vehicle with registration number
[….] and cash in the amount of R 92 100.00 seized by the
police under
case dockets Groblersdal CAS numbers 122/01/2016,
123/01/2016 and 125/01/2016 ("The Property") which are
presently subject
to a preservation of property order granted by this
Court on 13 January 2017 are the instrumentalities of an offence and
proceeds
of unlawful activities respectively .
2. In terms of
section 56(2) of the POCA the property is forfeited to the State and
vest in the State.
3. The draft order
attached hereto and marked Annexure "A" is hereby made an
order of Court.
4. The Respondent
is ordered to pay the costs of the application.
EM
MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Application
heard on :
10
September 2018
Order
pronounced on :
20 September
2018
For
the Applicant
:
Adv. M
F Mmela
Instructed
by
: State
Attorney
Polokwane
For
the Respondent
:
M J
Mohoto
Instructed
by
: Van
Deventer & Campher Inc
c/o H Masindi Attorneys
INTHE HIGH COURT OF SOUTH
AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 84/2017
In
the application of:
National
Director of Public
Prosecutions
Applicant
And
Johnny
Besaphi
Maila
Respondent
In re: a White Toyota Conquest
motor vehicle with registration number [….], Chassis number
7A9512625 and Engine number AHT4AE9609012096,
a Toyota Hilux 3.0 TD/B
bakkie with registration number [….], Chassis number
AH31GNK008020068 and Engine number 1KZ1209180,
AND cash in the amount
of R92 100.00 seized by the police under case dockets Groblersdal CAS
numbers 122/01/2016, 123/01/2016 and
125/01/2016
IN AN APPLICATION FOR A
FORFEITURE ORDER IN TERMS OF SECTION 48 READ WITH SECTION 53 OF THE
PREVENTION OF ORGANISED CRIME
ACT
121 OF 1998 (POCA)
ORDER
On
20 September 2018.
Before
the Honourable
Judge President Makgoba
4.2 sell
the motor vehicles at best, either by public auction or private
treaty;
4.3 sign
all documentation necessary to effect sale, transfer and registration
of
the motor vehicle; and
4.4 deposit
the cash together with the proceeds from sale of the motor vehicles
less
any commission and incidental expenses occasioned by the sale
into Criminal Asset Recovery Account established under section 63
of
POCA, account number 80303056 held at the South African Reserve Bank,
Madiba Street, Pretoria (CARA).
5 Hlamarisa
Simon Rikhotso shall as soon as possible but not later than
within a
period of 90 day of this order coming into effect, file a report with
the applicant indicating the manner in which he
complied with the
terms of this order.
6 Any
person whose interest in the property concerned is affected by the
forfeiture order, may within 20 days after he or she has acquired
knowledge of such order, set the matter down for variation or
rescission by the court.
BY
ORDER OF COURT
REGISTRAR
OF THE HIGH COURT
DATE
[1]
National Direct or of Public Prosecutions v Mohamed NO
2002 (4) SA
84
3 (CC) at 850E - 850D
[2]
National Direct or of Public Prosecutions v Van Staden and Others
2007 (1) SACR 338
(SCA) at paragraph [1]
[3]
National Director of Public Prosecutions v Seevnarayan
2004 (2) SACR
208
(SCA); 2004(8) BCLR 844; [2004] 2 ALL SA 491.
[4]
Vide National Director of Public Prosecutions v Mohamed NO (supra)
at 851E - F.
[5]
Prophet v National Director of Public Prosecutions
[2006] ZACC 17
;
2006 (2) SACR 525
(CC)
(2007 (2) BCLR 140)
in paragraph [46].
[6]
Mazibuko and Another v National Director of Public Prosecutions
2009
(2) SAC R 368
(SCAO at 378A-G
[7]
Prophet v National Director of Public Prosecutions
[2006] ZACC 17
;
2006 (2) SACR 525
(CC) ;
(2007 (2) BCLR 140)
in paragraph [61].
[8]
First National Bank of SA Ltd t/a Wesbank v Commissioner, South
African Revenue Service and Another; First National Bank of SA
Ltd
t/a Wesbank v Minister of Finance (FNB)
[2002] ZACC 5
;
2002 (4) SA 768
(CC) ;
2002
(7) BCLR 702
paragraph [100]
[9]
Supra at paragraph (58) at 548G