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[2017] ZANCHC 47
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National Director of Public Prosecution v P.D.P (2486/2016) [2017] ZANCHC 47; 2017 (2) SACR 577 (NCK) (2 June 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case
No: 2486/2016
Heard
on: 21/04/2017
Delivered
on: 02/06/2017
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC
APPLICANT
PROSECUTION
AND
P.
D.
P.
RESPONDENT
JUDGMENT
MAMOSEBO
J
:
[1]
The applicant, the National Director of Public Prosecutions (the
NDPP), is seeking an order confirming the interim order (rule
nisi)
issued out of this court on 18 November 2016 in terms of s 38 of the
Prevention of Organised Crime Act, 121 of 1998 (POCA),
in respect of
a Renault Megane motor vehicle with registration numbers and letters
[C...]. The respondent, Mr P. D. P., and
the natural guardian
of the minor in whose name the vehicle is registered, Ms C. J.,
opposed the confirmation of the rule nisi
and urge for its discharge.
The
background leading to the seizure of the property
[2]
On 31 July 2015 the Kakamas police officials, under the command of
Colonel Boetie De Bruin, had set up a road block on the N14
between
Keimoes and Kakamas, about 13 kilometers outside Kakamas. The
respondent was the driver of the vehicle and was in the company
of
four passengers. The vehicle approached the road block around 13h00
from the direction of Keimoes.
[3]
Col De Bruin stated that he noticed a black plastic bag being thrown
from the vehicle when it was about 500 meters from the
road block.
It fell on the gravel shoulder of the road next to the tarred
road. Col De Bruin asked W/O Jacobus Andreas to
collect the black
plastic bag and to ascertain its contents.
[4]
The vehicle proceeded to the stopping point where the respondent was
met with an enquiry by Col De Bruin on what was thrown
out of the
vehicle. The window of the vehicle on the driver’s side was
open. The respondent denied throwing anything out
of the window and
stated that it might have been one of the passengers who did that.
Following from the respondent’s
response Col De Bruin enquired
from the four passengers whether anyone of them threw anything out of
the window. They all denied
it. They confirmed that they had
hitched a ride from the respondent from Upington to Kakamas and did
not know him before
then.
[5]
W/O Andreas arrived at that point in possession of the black bag
which was opened in the presence of the respondent and his
passengers. Contained in that plastic bag were 7 small plastic
bags containing mandrax tablets. Col De Bruin claims that
the driver
and his passengers seemed nervous and uncomfortable at that stage.
The respondent stated that he could see that
the contents in the bag
were mandrax tablets. The five men were arrested and the mandrax
tablets were confiscated and later counted
in their
presence at the police station. There were 344 tablets in
number with an estimated value of R17 200.00.
The tablets
were later analysed by W/O Maria Msesi at the SAPS forensic
laboratory and found to contain methaqualone which is listed
in Part
III of Schedule 2 of the Drug and Drug Trafficking Act, 140 of 1992.
All suspects were arrested for possession of drugs
but the criminal
charges were subsequently withdrawn by the public prosecutor,
evidently because doubt must have existed as regards
who in fact
possessed or owned the illegal substance.
[6]
It is trite, however, as explained by Ackermann J in
National
Director of Public Prosecutions and Another v Mohamed NO and Others
[2002] ZACC 9
;
2002 (2) SACR 196
(CC) at 204c that Chapter 6 of POCA
provides for forfeiture of the proceeds of and instrumentalities used
in crime; it is not conviction-based
and may be invoked even where
there is no prosecution.
[7]
The case that Adv van Dyk for the applicant is trying to make out is
that since the vehicle was used by the respondent to transport
the
drugs it was used as an instrumentality in the commission of an
offence and as a consequence the
rule nisi
ought to be
confirmed. Counsel submitted that the fact that the vehicle was
registered in the name of his minor child is
merely a smokescreen.
However, on the day of the arrest it was not used in any of the
child’s interests or wellbeing.
[8]
In his opposition the respondent contended that the vehicle was
bought for his minor daughter and denied its use in any commission
of
an offence on 31 July 2015. According to him the contents of the
black bag were thrown from a white Toyota Cressida travelling
in
front of his vehicle that was also stopped at the road block. He says
the occupants in his vehicle were unknown to him as he
had offered
them a lift. He denied that he told Col De Bruin that it must have
been one of his passengers who threw the bag out
of the vehicle. He
maintains that he suggested to Col De Bruin to preserve the bag in
order to lift fingerprints therefrom for
investigative purposes. He
says he did not know that the tablets recovered at the roadblock were
mandrax tablets. He further
denies that the vehicle was used as an
instrumentality of an offence.
[9]
Ms C. J., the minor child’s guardian and mother, filed an
affidavit as an interested party opposing the application
for
confirmation of the rule. She confirmed that the vehicle is
registered in her 6-year old daughter’s name and that it
was
bought by the respondent as a gift for the child on 29 May 2015. She
averred that the vehicle is utilised for “parental
responsibilities” of the child. Since seizure of the property
they have been using public transport
[10]
The issue that falls for determination is whether the property was an
instrumentality of an offence and if it was,
whether it is liable for
forfeiture.
[11]
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.”
[12]
In
Brooks v NDPP
(855/16)
[2017] ZASCA 42
(30 March
2017) at para 58 Ponnan JA’s remarks are instructive:
“
[58]
The correct interpretation of the concept ‘instrumentality of
an offence’ in the context of POCA was considered
by the
Constitutional Court in Prophet[Prophet v National Director of Public
Prosecutions
[2006] ZACC 17
;
2006 (2) SACR 525
(CC);
2007 (6) SA 169
(CC)]. As Van
Heerden AJ explained in Mohunram [Mohunram & another v National
Director of Public Prosecutions & another
(Law Review Project as
Amicus Curiae)
[2006] ZASCA 12
;
2007 (4) SA 222
(CC), in considering the meaning of
the phrase ‘an instrumentality of an offence’ the
Constitutional Court in Prophet
adopted the interpretation accepted
by the Supreme Court of Appeal in a trilogy of cases. Van Heerden AJ
added:
‘
In
the first of those cases, Cook Properties [National Director of
Public Prosecutions v RO Cook Properties (Pty) Ltd; National
Director
of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd &
another; National Director of Public Prosecutions
v Seevnarayan
2004
(2) SACR 208
(SCA)], Mpati DP and Cameron JA said that “(i)t is
clear that in adopting this definition the Legislature sought to give
the phrase a very wide meaning”. They held, however, that in
order to ensure that application of the forfeiture provision
does not
constitute arbitrary deprivation of property in violation of s 25(1)
of the Constitution “…the words ‘concerned
in the
commission of an offence’ must … be interpreted so that
the link between the crime
committed and the property is reasonably direct, and that the
employment of the property must be functional
to the commission of
the crime.
By this we mean that
the property must play a reasonably direct role in the commission of
the offence. In a real or substantial
sense the property must
facilitate or make possible the commission of the offence. As the
term ‘instrumentality’ itself
suggests … the
property must be instrumental in, and not merely incidental to, the
commission of the offence. For otherwise
there is no rational
connection between the deprivation of property and the objective of
the Act: the deprivation will constitute
merely an additional penalty
in relation to the crime, but without the constitutional safeguards
that are a prerequisite for the
imposition of criminal penalties.’
In
other words, the determining question is
“…
whether
there is a 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.””
[13]
When dealing with such an application the focus is not on the state
of mind of the owner, but rather on the role
the property plays in
the commission of the crime. See
National Director of Public
Prosecutions v RO Cook Properties (Pty) Ltd; National Director of
Public Prosecutions v 37 Gillespie
Street Durban (Pty) Ltd &
Another; National Director of Public Prosecutions v Seevnarayan
2004
(2) SACR 208
(SCA). The
Cook Properties
case has
also confirmed the principle at page 239g para 21 that POCA is
designed to reach far beyond organised crime, money laundering
and
criminal activities in that it also applies to individual
wrongdoing.
[14]
I must interpose and state that counsel for the respondent had argued
that Moseneke DCJ had pronounced in
Mohunran v NDPP (Law Review
Project as Amicus Curiae)
2007 (2) SA 145
(CC) at para 115
that POCA does not extend to individual wrongdoing. Moseneke DCJ
pronounced at para 117e as follows:
“
I
specifically leave open the decision whether the scope of the Act is
designed to reach beyond racketeering, money laundering and
criminal
gang activities and apply to cases of individual wrongdoing.”
Counsel
therefore misconstrued what the DCJ stated. He clearly left the issue
open and based on our precedent system the SCA has
now pronounced on
the matter.
[15]
The question that further falls for determination is whether a
functional relation between the vehicle and crime
has been
established.
[16]
The respondent’s explanation about the black plastic bag is
telling. First he had said that it must have
been jettisoned by one
of his passengers and later somersaulted and said it was thrown from
a white Toyota Cressida travelling
in front of his vehicle. Why
would the police not have accosted the driver of the white Cressida
if that is the case? Based
on the trite principle in
Plascon-
Evans Paints Ltd v Van Ribeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635C the respondent’s responses in respect of
the origins of the plastic bag are untenable and are
rejected
merely on the papers.
[17]
Although the respondent and his passengers lied about the plastic bag
it was still incumbent upon the NDPP to prove
possession thereof.
In the end it is immaterial whether or not the vehicle was registered
in the name of the child.
[18]
It is very unusual and highly suspicious why a motor vehicle could be
registered in the name of a six (6) year
old child. The child was of
an age where she could not drive a car or acquire a driver’s
licence. The registration in the
child’s name therefore seems
to have been done for sinister motives. Be that as it may, a
court cannot act on
suspicions even if such suspicions are strong.
The respondent must therefore be given the benefit of the doubt.
[19]
Section 25(1) of the Constitution of the Republic of South Africa,
108 of 1996 stipulates
that:
(1)
No one may be deprived of property except in terms of law of general
application
and no law may permit
arbitrary deprivation of property.”
[20]
According to
Cook Properties
at para 18 the
inter-related purposes of Chapter 6 include: (a) Removing incentives
for crime; (b) Deterring persons from using
or allowing their
property to be used in crime; (c) Eliminating or incapacitating some
of the means by which crime may be committed,
and (d) Advancing the
ends of justice by depriving those involved in crime of the property
concerned. At least (b) and (d) have
a penal aspect.
As
stated by Nkabinde AJA in
National
Director of Public Prosecutions v Parker
2006
(3) SA 198
(SCA) at 206G para 16:
“……
It
is necessary, when making a determination whether property is an
instrumentality of an offence, to look at the broader picture
of
instrumentality.”
[21]
If the evidence before me that the vehicle belongs to the minor child
is correct then a
curator ad litem
should have been appointed
for her because an order forfeiting her presumptive vehicle to the
state would be inimical to her best
interests. See
Brooks v
NDPP
(855/16)
[2017] ZASCA 42
(30 March 2017 at para 79.
[22]
The application must fail for two reasons: First, that there is no
clear nexus between the illegal transportation
of the mandrax tablets
and secondly because no curator ad litem was appointed for the child
to protect her best interests.
[23]
This is a typical case where the state should not be mulcted in costs
because it had a good reason to bring this application
to court.
There are also very strong indications that the respondent’s
hands are not clean and should not derive any benefit
from this
situation.
[24]
As a result, the following order is made:
1
.
The application is dismissed and the
rule
nisi
is
discharged.
2.
Each party must bear its own costs.
3.
The mandrax tablets are ordered to be forfeited to the state in terms
of
s 31(1)(b)
of the
Criminal Procedure Act, 51 of 1977
as
amended.
_______________________
MAMOSEBO
J
NORTHERN
CAPE DIVISION
Appearances:
For
the applicant :
Adv L Van Dyk
Instructed
by:
The State Attorney, Kimberley
For
1
st
and 10
th
respondents:
Adv A Eillert
Instructed
by:
Hugo Mathewson & Oosthuizen Inc.