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[2016] ZANCHC 53
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National Director of Public Prosecutions v Mjeza (598/2015) [2016] ZANCHC 53 (1 April 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno / Case
number:
598
/ 2015
Datum
aangehoor / Date heard:
26
/ 02 / 2016
Datum
gelewer / Date delivered:
01
/ 04 / 2016
In the application
of:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
DIKELETSO
VINCENT
MJEZA
Respondent
In
re: Maroon Volkswagen JETTA CL, Reg. No and Letters
[B...],
seized on 26 November 2014 and held under
Campbell
CAS34/11/2014
Coram:
Erasmus, AJ
JUDGMENT
ERASMUS,
AJ
[1]
This is an application in terms of section 48(1) of the Prevention of
Organised Crime Act, No 121 of 1998 (‘POCA’)
to declare
forfeit to the State of a maroon Volkswagen Jetta with registration
number and letters [B...], chassis number AAVZZZ1HZRU015080
and
engine number ACH013569 (‘the property’). The basis
for the application is that the property constitutes
an
instrumentality of a criminal offence.
[2]
This application was lodged after an interim preservation order in
terms of section 38 of POCA was granted on 10 April 2015
and
subsequently confirmed on 26 June 2015.
[3]
The respondent gave notice of his intention to oppose the forfeiture
application and filed answering papers. The procedure
was not
in accordance with and neither within the period, as envisaged in
section 39(3) and 39(4) of POCA. I assume for purposes
of this
judgment that the respondent intended to apply for leave to enter
appearance in terms of section 49 of POCA. The
respondent did
not apply for the exclusion of the property from the operation of the
forfeiture. The respondent and applicant
proceeded to file
answering and replying papers, as envisaged in section 62 of POCA.
The parties proceeded to argue the merits
of the forfeiture
application before me.
[4] The following facts
are common cause between the parties:
4.1
On 26 November 2014 at approximately 20:15, the South African Police
Services (‘the Police’) noticed
the property parked next
to the N8 road near Campbell. There were three males at or in the
vicinity of the property, one of which
was the respondent.
4.2
The respondent informed the Police that they had been traveling from
Schmidtsdrift to Kimberley when he experienced
problems with the
property and that they were awaiting assistance.
4.3
The Police requested and was granted permission by the applicant to
search the property. At that moment
the other two male persons
ran away from the scene.
4.4
In the trunk of the property the Police recovered the carcasses of
ten slaughtered sheep (‘the livestock’)
under a green
net. Their intestines were found inside the property in a white
plastic bag behind the front seat of the property.
4.5
The respondent did not have a permit to convey livestock, as
envisaged in section 8 of the Stock Theft Act,
No. 57 of 1959.
4.6
The Police arrested the respondent on the scene for stock theft and
seized the property.
4.7
The livestock was identified by their owner and he estimated their
market value at approximately R10,000.00.
4.8
As the livestock had already been slaughtered, and being of no
further value to the owner, the carcasses were
fed to lions.
4.9
Stock theft is very prevalent in the Northern Cape Province and this
necessitated the establishment of a specialized
unit in the Police to
investigate these crimes.
4.10
The respondent is the owner of the property.
4.11
The book value of the property is approximately R17,500.00, but was
bought shortly before the incident for the amount
of R10,500.00.
4.12
The respondent has a previous conviction for theft.
[5]
In addition to the facts set out above, it appears from the papers
filed in support of the preservation application, that the
respondent
informed the Police on the scene that the other two men had hired him
to fetch the livestock at Schmidtsdrift. He could
neither produce any
documentation in support of a legal purchase and sale of the
livestock, nor a permit to transport the livestock.
The
applicant did not deal with this aspect in his answering affidavit in
opposition to the forfeiture application.
[6]
The version of the respondent, as set out in his answering affidavit,
is as follows:
6.1
He denied both having committed the crime of stock theft and that the
property had been instrumental in committing
stock theft.
6.2
He received a phone call from a person by the name of ‘Oubaas’
who requested him to fetch him
and a friend as they were on their way
from Griekwastad. The respondent found them approximately 10 (ten)
kilometers outside of
Schmidtsdrift.
6.3
At the scene he noted that Oubaas and the other man had a number of
sheep carcasses with them. He suspected
it to be stolen and refused
to load it into the property. He was then threatened with
knives and so, for his own safety,
he consented to the loading of the
livestock into the trunk of the property.
6.4
The respondent experienced problems with the property when he was
approached by the Police. The police
enquired about the
contents of the trunk of the vehicle and they then requested him to
open same and he complied.
6.5
The livestock was covered with a net and the Police enquired as to
the contents. The respondent informed
the Police that the
contents belonged to the two men and that it was at that moment that
Oubaas and the other male ran away.
6.6
By the time the respondent had met up with the other two men, the
theft of the livestock had already been
committed. He neither
knew from which farm it had been stolen nor where it had been
slaughtered.
6.7
Although the property was used to convey the stolen livestock, the
respondent did so because he had been threatened
by the other two
males to assist them and was thus forced to convey the livestock.
6.8
The criminal matter against the respondent was provisionally
withdrawn.
[7]
In reply to the respondent’s averments pertaining to the threat
to convey the livestock, the Police stated that the respondent
never
reported nor mentioned to them that he had been threatened by the
other two males. They reiterated that the explanation
provided
to the Police was that the two male persons who had fled the scene
had hired him to fetch the livestock from Schmidtsdrift
and that he
could not explain why they had run away.
[8] The basis for the
opposition of the forfeiture application is twofold. It is
alleged that the property was not an instrumentality
of an offence
listed in Schedule 1 to POCA, as envisaged in Chapter 6 of POCA.
Secondly, the respondent submitted that the
forfeiture of the
property would be disproportionate when its effect on the respondent
is weighed against the purpose of the forfeiture
in this instance.
[9] The purpose of
Chapter 6 of POCA
[1]
includes
the objectives of removing incentives for crime, deterring persons
from using or allowing their property to be used in
the commission of
crime, eliminating some of the means by which crime may be committed,
and advancing the ends of justice by depriving
those involved of the
property that is an instrumentality of an offence.
[10] In terms of
section 50(1)(a) of POCA a High Court shall, subject to the
provisions of section 52, make a forfeiture order if
it finds, on a
balance of probabilities, that the property concerned is an
instrumentality of an offence referred to in Schedule
1.
[11]
An owner of property can avoid forfeiture by opposing the making of a
forfeiture order or applying for an order to exclude
their interest
in the property.
[2]
[12]
During the first stage of proceedings the onus rests on an applicant
to show on a balance of probabilities that the property
concerned is
an instrumentality of an offence referred to in schedule 1. An
'instrumentality
of an offence'
is
defined 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 …
’.
[3]
[13]
The focus is on the role the property played in the commission of the
crime. It is irrelevant whether or not criminal
proceedings
have been instituted and a criminal conviction is not a condition
precedent to forfeiture.
[4]
[14]
As rightly pointed out by Adv. Van Dyk for the applicant and Mr. Rust
for the respondent, the issue pertaining to what constitutes
an
instrumentality of a criminal offence has been the subject of much
debate in our courts and appears to have been settled.
In
NDPP
v R O Cook Properties
[5]
it
was held that
the
words ‘
concerned
in the commission of an offence
’
must be interpreted as follows:
“…
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 and substantial sense the property must
facilitate or make possible the commission of the
offence.
”
[6]
[15]
Howie JA in
NDPP
v GEYSER AND ANOTHER
[7]
,
in considering what constitutes an instrumentality of an offence,
held that
“
to
be an instrumentality of an offence the property concerned must by
definition in POCA, be ‘concerned in the commission’
of
that offence. As the cases have interpreted that definition, the
property must facilitate commission of the offence and be directly
causally connected with it so it is integral to the commission of the
offence.”
[16]
Once the applicant has established that the property concerned is an
instrumentality of an offence, the second phase of proceedings
commences. During this stage of proceedings the state of mind
of the owner of the property comes into play.
[17]
In relation to the forfeiture of an instrumentality of an offence
referred to in Schedule 1, a Court may, in terms of section
52(2A) of
POCA, make an order excluding certain interests in property which is
subject to the forfeiture order, from the operation
thereof.
This is referred to as “the innocent owner-defence”.
[8]
[18]
This exclusion may only be ordered if the Court finds that the
respondent herein has shown on a balance of probabilities, that
he
had acquired the interest in the property concerned legally, and
neither knew nor had reasonable grounds to suspect that the
property
in which the interest is held is an instrumentality of an offence
referred to in Schedule 1.
[19] Mere innocence on
the side of the respondent is not enough.
[9]
Section 52 must be read
with the provisions of sections 1(2) and (3) of POCA.
[20]
In terms of section 1(2) it will be accepted that the respondent had
knowledge of a fact if he had actual knowledge of the
fact or if the
Court is satisfied that he believed that there is a reasonable
possibility of the existence of that fact and failed
to obtain
information to confirm the existence of that fact.
[21]
In terms of section 1(3) of POCA the respondent ought reasonably to
have known or suspected the fact if the conclusions that
he ought to
have reached are those which would have been reached by a reasonably
diligent and vigilant person having both the general
knowledge,
skill, training and experience that may reasonably be expected of a
person in his position and the general knowledge,
skill, training and
experience that he in fact has.
[22]
As rightly submitted by Ms. Van Dyk, Chapter 6 is designed to recruit
property owners into an active role as guardians of their
property
against crime. They cannot be supine.
[10]
[23]
Ms. Van Dyk submitted that the property is directly linked to the
carrying out of the offence and that it is not merely incidental
to
the carrying out of the offence and forms part of the offence.
Mr. Rust submitted that the property was merely incidental
to
the commission of the crime as the respondent ‘
merely
showed up at the scene where he picked up the other two gentlemen
’.
He did not go to the scene with the intention to remove the stolen
items.
[24]
It is common cause that the livestock conveyed by the respondent and
which was subsequently found in the property had been
stolen and that
he did not have a permit to convey the livestock found in his
vehicle.
[25]
Any offence for which the punishment may be a period of imprisonment
exceeding one year without the option of a fine falls
within the
ambit of an offence referred to in Schedule 1.
[26]
In terms of section 8 of the Stock Theft Act
[11]
,
no person shall drive, convey or transport any stock or produce of
which he is not the owner on or along any public road unless
he has
in his possession a removal certificate issued to him by the owner of
such stock or produce. Section 14 of the said
Act provides for
sentences for any offence under this Act, of imprisonment exceeding
one year without the option of a fine.
[27]
The property played a direct role in transportation of the stolen
stock and made possible the commission of the offences in
question.
It was instrumental (and not merely incidental) to the commission of
the offence of stock theft and also a contravention
of section 8 of
the Stock Theft Act.
27.1
The version of the Police that the respondent informed them on the
scene that the other two men had
hired him to fetch the livestock
stands uncontested. At best for the respondent, he knew or at
least suspected that the livestock
had been stolen. The
property was
chosen
and used to transport the stolen livestock. The ten sheep and
intestines could not be carried and had to be conveyed
in the
property. The property facilitated the commission of the crime
and was instrumental therein.
27.2
The property also played a direct role in the commission of the
offence of conveying or transporting
stock or produce of which the
respondent was not the owner on or along the public road without him
being in possession of a removal
certificate. Without the
property the offence could not have been committed.
[28]
During the second stage, when considering the respondent’s
‘innocent owner’ defence, it appears to be common
cause
that the property was acquired legally.
What
remains to be answered is whether the respondent discharged the onus
and has shown, on a balance of probabilities that he did
not know or
ought reasonably to have known or suspected that the property was an
instrumentality of an offence referred to in Schedule
1.
[29]
The respondent’s defence is that he did not go to the scene
with the intention to remove the stolen items. On his
arrival,
he saw the livestock and suspected it to have been stolen. When
he refused to load the livestock, the other two
males threatened him
with knives. This resulted in him succumbing to their threats
and loading the stolen livestock.
29.1
On this version, at best for the respondent, he knew or at least
suspected that the livestock had been stolen.
Despite this, he
still loaded it into the property and transported it.
29.2
The respondent’s explanation that he was threatened with knives
is far-fetched and a clear fabrication and
as such has to be
rejected. If there was any truth in this allegation, and if he
really feared for his life, he had had ample
opportunity to inform
police official Mpana of such threat on the scene after the other 2
men had fled. Yet he only disclosed
this alleged threat in his
answering affidavit.
29.3
It is highly improbable that the respondent had driven to a place 10
km from Schmidtsdrift only to find two men
next to the road having 10
carcasses and intestines in their possession. It is more
probable that he had assisted them in
the theft and the slaughter of
the livestock or at least, had transported it from where it had been
slaughtered.
[30]
I find that the applicant proved, on a balance of probabilities, that
the property concerned is an instrumentality of an offence
referred
to in schedule 1.
[31] Having regard to
the evidence before me, I find that the respondent has not discharged
the onus in terms of section 52 by proving,
on a balance of
probabilities that he did not know or ought reasonably to have known
or suspected that the property was an instrumentality
of an offence
referred to in Schedule 1.
[32]
Mr. Rust submitted that, if the object of forfeiture proceedings is
kept in mind, the forfeiture of the property and deprivation
of the
respondent’s property in circumstances where he had been
‘forced to transport stolen sheep’, would be
disproportionate and arbitrary and therefore unconstitutional.
[33]
Although proportionality is not a statutory demand, it is an
equitable requirement developed by the courts to balance combating
crime against property rights.
[12]
[34]
Proportionality is not exclusively determined by a direct comparison
of the value of the property sought to be forfeited and
the value of
the offence, but involves consideration of numerous other factors.
These factors include the seriousness of
the offence, removing the
incentive of crime, deterrence, eliminating or incapacitating some of
the means by which crime may be
committed, advancing the ends of
justice by depriving those involved in crime of the property
concerned where the property is closely
associated with the
commission of the crime.
[35]
Other factors, relevant to the respondent, are the nature and use of
the property and the effect of the forfeiture on the respondent.
[13]
[36]
In
PROPHET
V NDPP
[14]
it was stated:
“
A
mere sense of disproportionality should not lead to a refusal of the
forfeiture sought. To ensure that the purpose of the law
is not
undermined, a standard of ‘significant disproportionality’
ought to be applied for a court to hold that a deprivation
of
property is ‘arbitrary and thus unconstitutional’, and
consequently refuse to grant a forfeiture order. And it is
for the
owner to place the necessary material for a proportionality analysis
before the court.
”
[37]
I am of the view that the forfeiture of the property would not be
disproportionate when its effect on the respondent is weighed
against
the purpose of the forfeiture in this instance and would not amount
to an arbitrary deprivation of property.
37.1
Stock theft is rife in this Division. It is difficult to combat
and has necessitated the establishment of a specialized
unit in the
SAPS to investigate these crimes. There are, as set out in the
applicant’s founding papers in the preservation
application, a
number of syndicates in operation in the Northern Cape Province and
stock farmers suffer huge losses as a result
thereof. Owners of
motor vehicles facilitate the commission of these crimes by providing
transport to convey the stolen livestock.
37.2
In this instance, the purchase price of the property is almost
exactly the same as the value of the stolen livestock.
Although
any deprivation of property has an impact on the owner, it cannot be
said that the deprivation in this instance is disproportionate.
37.3
The respondent is no stranger to crime and has one previous
conviction for theft.
37.4
The crime is a serious one and, given the number of sheep that were
stolen and slaughtered, it was not committed out
of necessity, but
sheer greed.
37.5
The impact the crime, given the number of sheep that was stolen, is
immense on the victim of the crime, Mr. Morweng.
He is a small
farmer having owned only seventeen sheep. Fifteen were stolen
during this incident, only five of which were
recovered alive.
37.6
The respondent has failed to place circumstances, relevant to the
proportionality analysis, before me. He merely
denied
involvement in the offence and maintained that the property was not
instrumental in the offence. Although he stated
that he is the
owner of the vehicle, the vehicle has not yet been registered in his
name. It does not appear from the answering
papers whether he
is employed. He stated though that he had paid for the
vehicle in cash.
[38]
I am satisfied that the requirements for the forfeiture of the
property to the State have been met and that it would not be
disproportionate to deprive the respondent of his property.
IT
IS ORDERED THAT:
1.
In terms of section 53(1)(a) of the Prevention of Organised Crime At
121 of 1998 (POCA), the maroon Volkswagen
JETTA with registration
numbers and letters [B...], chassis number AAVZZZ1HZRU015080 and
engine number ACH013569 (the property)
presently kept by the South
African Police Service (the SAPS) at the Kimberley SAPS stores under
SAP13/211/2014 under a case registered
as Campbell CAS 34/11/2014 is
declared forfeit to the State.
2.
In terms of section 50(6) of the POCA, paragraph 5 below shall take
effect 20 (TWENTY) days after publication of
a notice thereof in the
Government Gazette.
3.
The SAPS Commanding Officer, Kimberley, who was authorized in the
Preservation Order to take care of the property,
be and is hereby
directed to continue acting as such for the purpose of this order.
4.
Pending the taking effect of this order, the property shall remain in
the custody of the SAPS Commanding Officer,
Kimberley.
5.
On the date on which this order takes effect, to wit 20 (TWENTY) days
after publication in the Government Gazette,
the SAPS Commanding
Officer, Kimberley shall hand the property to the Senior Financial
Investigator of the Applicant, Jacobus Smit,
who is authorized to
5.1
sell the property at best price, either by public auction or private
treaty;
5.2
sign all documentation necessary to effect the sale, transfer and
registration of the property; and
5.3
cause the balance of the proceeds of its sale, less any commission
and incidental expenses thereto, to be
deposited into the Criminal
Asset Recovery Account.
6.
The applicant is further directed to publish a notice of this order
in the Government Gazette as soon as it is practicable.
__________________
SL ERASMUS
ACTING JUDGE
On
behalf of the Applicant
:
Adv L van Dyk (oio The State Attorney)
On
behalf of the Respondent
:
Mr. H. Rust (oio Haarhoffs Inc.)
[1]
NDPP
v R O Cook Properties (PTY) Ltd; NDPP V 37 Gillespie Street Durban
(PTY) Ltd and another; NDPP V Seevnarayan
2004 (2) SACR 208
(SCA)
par [18]
[2]
NDPP
v R O Cook Properties (PTY) Ltd
supra
par [22]; Section 48 read with the provisions of section 50 and 52
of POCA
[3]
Section
1 of POCA
[4]
NDPP
v R O Cook Properties (PTY) Ltd
supra
par [20]
[5]
2004
(2) SACR 208 (SCA)
[6]
R
O Cook Properties, supra par [31]; See also NDPP v Prophet
2006(2) SACR 525 (CC) par [57] and Mohunram and another v NDPP
2007
(2) SACR 145
(CC) par [49]
[7]
[2008] ZASCA 15
;
2008
(2) SACR 103
(SCA) par [17]
[8]
NDPP
v R O Cook Properties (PTY) Ltd
supra
par [23] and [24]; NDPP v Mohammed NO and Section 1(1) of POCA
others
[2002] ZACC 9
;
2002 (2) SACR 196
(CC) par [17] and [18]; See also NDPP
v Gerber
2007 (1) SACR 384
(W) par [18]
[9]
NDPP
v R O Cook Properties (PTY) Ltd
supra
par [24]
[10]
NDPP
v R O Cook Properties (PTY) Ltd
supra
par [28] and [29];
NDPP
v April
2007 4 All SA 1183
(C) par 44
[11]
Act
57 of 1969
[12]
NDPP
v R O Cook Properties (PTY) Ltd
supra
par [15]; Mohunran v NDPP
supra
para
[56] and [130]
[13]
Mohunran
v NDPP
supra
at
par [57] and [123]
[14]
2006
(1) SA 38
(SCA) at par [37]