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[2007] ZASCA 82
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Singh v National Director of Public Prosecutions (268/06) [2007] ZASCA 82; [2007] 3 All SA 510 (SCA); 2007 (2) SACR 326 (SCA) (1 June 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Not Reportable
Case no: 268/06
In the matter between:
SHEILA DEVI SINGH
...............................
Appellant
and
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
...............................
Respondent
CORAM: HARMS, CAMERON, LEWIS, CACHALIA JJA AND THERON AJA
DATE OF
HEARING: 21 MAY 2007
DATE OF
DELIVERY: 1 JUNE 2007
Summary
:
Criminal Law – Application for preservation order in respect of
immovable property in terms of
s 38
of the
Prevention of Organised
Crime Act 121 of 1998
– The NDPP bears the onus of establishing
reasonable grounds to believe that the property is ‘an
instrumentality of an
offence’ – Property must play a
real or substantial role in the commission of the offence.
Neutral citation:
This case may be cited as
Singh v National Director of
Public Prosecutions
[2007] SCA 82 (RSA).
JUDGMENT
THERON AJA/
[1] This appeal concerns a preservation order in respect
of immovable property consisting of land and buildings situated at 21
Bell
Grove, Berea, Durban (‘the property’), in terms of s
38(2) of the Prevention of Organised Crime Act 121 of 1998 (‘POCA’).
1
The question is whether or not it has been established
that the property was an instrumentality of an offence as envisaged
in POCA.
2
[2] The National Director of Public Prosecutions (‘the
NDPP’) applied, on an
ex parte
basis,
to the Durban High Court for a preservation order in respect of the
property. The NDPP alleged that the property was an instrumentality
of the offence of drug dealing in contravention of s 5(b) of the
Drugs and Drug Trafficking Act 140 of 1992 (‘the Drugs Act’).
3
The offence of contravening s 5(b) is listed in item 22
of schedule 1 of POCA. The court granted the preservation order.
[3] The evidence relied on by the NDPP is this. Singh
(the appellant) is the owner of the property and her son administered
the property
on her behalf. The property comprises a main building
with six bedrooms and three bathrooms, a wooden shed and an outhouse
consisting
of two rooms and a bathroom. The property was let to a
tenant, Ms Joan Cele, who runs an unlicensed boarding establishment
on the
property, offering accommodation at hourly and daily rates.
[4] The property has, during the period 1996 to 2003,
been the subject of sporadic continuous police action. As a result of
this police
action, 36 arrests have been made on the property for
drug-related offences. Arising from these arrests, nine persons have
been convicted
of dealing in a substance prohibited in terms of the
Drugs Act, and four of them gave the property as their residential
address.
According to the evidence, there were two outstanding
warrants of arrest for persons charged with dealing in drugs on the
property,
who had also given the property as their residential
address.
[5] During these police raids, drugs such as dagga,
mandrax and cocaine were found on the property. It is alleged by the
NDPP that
some of the drugs found were in quantities that exceeded
the needs of one person, thereby suggesting that the drugs were being
sold
from the property. Based on the aforegoing, the allegation is
made that drug dealers resided on the property and were using the
property
to sell drugs. In addition, the NDPP relied on the admission
by Cele, that she, as well as a previous tenant, had, at some stage,
sold dagga from the property.
[6] The NDPP makes the following allegations: That
despite several warnings by members of the South African Police
Service (SAPS),
neither Singh nor her son took reasonable steps to
ensure that the property did not become a haven for drug dealers
looking for a
secure environment from which to ply their trade.
Singh’s and her son’s inaction resulted in a lack of
diligent care,
administration and supervision of the property. The
property played an integral role in facilitating drug dealing in
that: (a) it
provided a safe house for drug dealers seeking refuge
from the law; (b) it provided a protected and secluded environment
for drug
dealers to ply their trade; (c) drugs are easily stored on
the property; (d) the property’s long history of association
with
drugs made it a well known drug den which attracted drug dealers
and (e) the running of an unlicensed lodge perpetuated drug dealing
on the property.
[7] Singh initially sought to have the preservation
order set aside on the basis that the
ex parte
procedure was unconstitutional but later abandoned this
course as a result of subsequent judgments.
4
Singh then sought to have the preservation order
reconsidered and rescinded, first, on the basis that immovable
property could never
be an instrumentality of the offence of dealing
in drugs and alternatively, that the property was not an
instrumentality of an offence.
In light of the decisions in
National
Director of Public Prosecutions v R O Cook Properties (Pty) Ltd
,
5
Prophet v National Director of Public Prosecutions
6
and
National Director of Public
Prosecutions v Mohunram
,
7
to the effect that immovable property can be an
instrumentality of the offence of dealing in drugs, Singh has
abandoned the first
ground as well.
[8] The high court dismissed the application for
reconsideration, finding that the frequency and extent of the drug
dealing was so
overwhelming that the conclusion that the property was
an indispensable part of the activity of drug dealing, and thus an
instrumentality,
was inescapable. Singh sought leave to appeal
against the refusal to rescind the preservation order but this was
refused on the basis
that a preservation order is not appealable.
Singh is before us with the leave of this court.
[9] In
Phillips v National
Director of Public Prosecutions
8
this court held that a restraint order granted in terms
of Chapter 5 of POCA is appealable. Howie P, writing for the court,
accepted
that whilst a restraint order is only of interim operation
and has no definitive or dispositive effect as envisaged in
Zweni
v Minister of Law and Order
,
9
it nevertheless has final effect because:
‘Absent the requirements for variation or rescission laid down
in s 26(10)(a) [
of POCA
] (and leaving aside the
presently irrelevant case of an order obtained by fraud or in error)
a restraint order is not capable of
being changed. The defendant is
stripped of the restrained assets and any control or use of them.
Pending the conclusion of the trial
or the confiscation proceedings
he is remediless. That unalterable situation is, in my opinion, final
in the sense required by the
case law for appealability.’
10
[10] In light of the decision in
Phillips
,
counsel for the respondent conceded, and rightly so, that the grant
of a preservation order is ‘final’ in the sense
required
for appealability - in the case of both restraint and preservation
orders the court making the order may only rescind or
vary it in
accordance with the provisions of POCA.
11
[11] As I have already indicated, the NDPP’s case
is that the property is an instrumentality of the offence of dealing
in drugs
in contravention of s 5(b) of the Drugs Act. As appears
earlier, ‘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, whether committed within the Republic or elsewhere’.
In
Cook Properties
12
this court held that it is inappropriate to interpret
this definition with ‘unbounded literalism’ and that the
Constitution
required a narrower interpretation for a number of
reasons. Section 25(1) of the Constitution provides that ‘no
law may permit
arbitrary deprivation of property’. Considering
that deprivation of property is arbitrary when there is insufficient
reason
for the deprivation,
13
Cook Properties
held that a
literal interpretation of the definition might lead to arbitrary
deprivation of property and, in order to avoid such an
outcome, the
definition must be interpreted in light of the purposes of chapter 6
of POCA, which include: removing incentives for
crime; deterring
persons from using or allowing their property to be used in crime;
eliminating or incapacitating some of the means
by which crime may be
committed; and advancing the ends of justice by depriving those
involved in crime of the property concerned.
14
Cook Properties
also held
that forfeiture would be unconstitutional if it did not rationally
advance the objectives of POCA because such forfeiture
was ‘not
contemplated by or permitted under the Act’.
15
It accordingly held that: (a) there must be a reasonably
direct link between the property and its criminal use and (b) the use
of
the property must be functional to the commission of the crime and
that the property must substantially facilitate, make possible
or be
instrumental in, and not incidental to, the commission of the
offence.
16
[12] This matter, in my opinion, bears a striking
similarity to that of the Gillespie Street
Hotel in
Cook Properties
,
17
where this court was faced with the question whether a
hotel was an instrumentality of an offence because drug and
prostitution offences
were being committed on the property. In that
case, too, during police raids conducted on the property various
narcotic substances
and drugs were found and suspects arrested. The
court had regard to the fact that the hotel was situated in an area
where drug offences
were rife and that in the circumstance the hotel
was likely to attract a clientele who may possess drugs. The court
also took into
account that members of the public could rent a room
or rooms at the hotel for any length of time and concluded:
‘The mere fact that drug dealers may frequent the hotel does
not make it a “drug shop”. There is no evidence that
the
persons arrested in the various raids and searches were the same
people. There is no suggestion that rooms were rented out or
equipped
for the purpose of drug dealing. Nor is there any evidence that the
premises themselves were used to manufacture, package
or distribute
drugs, or that any part of the premises was adapted or equipped to
facilitate drug dealing.’
18
[13] Counsel for the NDPP contended that there were
three factors that distinguished this matter from
Cook
Properties
. First, the property is not a
hotel – it is a single compact unit and Singh and her son, as
owner and administrator of the
property, respectively, could
reasonably be expected to have acted vigilantly and exercised
sufficient control over the property
in order to prevent crimes being
committed thereon.
19
I do not agree
that this difference is material. The property
had been let to Cele who in turn rented out rooms to various tenants
including persons
wishing to have casual sex - it is in the nature of
a hotel such as the Gillespie Street Hotel in
Cook
Properties
.
[14] Secondly, it was argued that this court is enjoined
to consider the broader picture which emerges from the evidence
regarding
the raids on the property and this includes the incidents
of arrest, convictions, recovery of prohibited substances, and the
links
between the arrested and suspected persons and the property –
all of which were indicative of a regularity which goes beyond
mere
incidental use of the property. It was submitted that against the
background of the police raids, combined with the numerous
complaints
lodged by members of the community regarding the property (complaints
were lodged by a local councillor, a neighbour and
the headmaster of
a nearby school who suspected that pupils from his school had
purchased drugs from the property), the inference
can be drawn that
the property had acquired a reputation as a place where drugs were
freely available. Relying on
National Director
of Public Prosecutions v Parker
,
20
it was further submitted that even though the property
had not been specifically adapted for criminal purposes, as it was
not necessary
to adapt the property in order to sell drugs, this
court should find that the NDPP has established (a) that the property
was a well
known drug haven and (b) ‘instrumentality’ on
the basis of repeated use of the property as a venue for purposes of
concluding
drug deals.
[15] In
Parker
the
court found that the NDPP had established that the property was not
merely an incidental venue from which drugs were obtainable,
but was
in fact a ‘drug shop’. There is insufficient evidence to
support such a finding in this matter. The evidence
as to the
arrests, convictions and recovery of drugs from the property must be
considered in context. Having regard to the fact that
the police
action spanned a period of seven years, this evidence is certainly
not indicative of ‘regularity’ as contended
by counsel
for the NDPP. The convictions of drug dealing amount to a few per
year and are more indicative of sporadic incidents of
transgression.
[16] Thirdly, it was contended that this matter is
distinguishable from
Cook Properties
by reason of the evidence suggesting that the property
was used for the preparation of drugs for sale. In support of this
contention
counsel placed reliance on photographic evidence
indicating that small plastic packets as well as newspaper wrappings,
both of which
contained dagga, were found on the sidewalk opposite
the property. A similar plastic packet containing dagga was found in
the outhouse
on the property. Newspaper containing dagga pips was
found at the rear of the property. It is alleged by the NDPP that
pips are removed
from the dagga leaves in the course of the
preparation of the dagga for sale. It is further alleged that the
dagga had been prepared
on the property and then stored on the
sidewalk as the property was subject to regular police action. To
link items found beyond
the boundaries of the property with items
recovered from the property, and to draw an inference, based on
speculative evidence, that
dagga was prepared for sale on the
property is not justified on the totality of the evidence.
[17] Property only qualifies as an instrumentality if it
is used to commit the offence and its use must be such that it plays
a real
and substantial part in the actual commission of the offence.
The fact that a crime is committed at a certain place does not by
itself
make that place an instrumentality of the offence. A closer
connection is required. In this matter the link between the property
and the offences is largely incidental or fortuitous. The NDPP had to
prove facts giving rise to reasonable grounds for believing
that the
property is an instrumentality of the offence of dealing in
dependence producing drugs. The evidence had to demonstrate
the role
the property played in the commission of this offence. The analysis
of the evidence provides no more than that persons who
from time to
time reside on the property either possessed or dealt in drugs. There
is no evidence that these persons were identified
as drug dealers or
how often the same persons were involved in drug dealing or that they
permanently resided at the premises or did
so for any extended period
of time. The drug dealing appears to have been committed by a number
of different people acting independently
from each other. The linking
of the property and the offences is in the most general terms. These
are, inter alia, that the boarding
establishment has made it possible
for drug dealers to ply their trade in a protected environment and
for members of the public to
enter the premises and purchase drugs on
the pretext that they were seeking accommodation. There is no
evidence that the use of the
property was
per
se
important or relevant to the success of
the illegal activity.
21
The evidence established no more than that the property
was a venue for dealing in drugs.
[18] For these reasons the following order is made:
(a) the appeal is upheld with costs, such costs to
include those consequent upon the employment of two counsel;
(b) the order of the court
a quo
is set aside and replaced with the following:
‘
The preservation order is set aside and the NDPP
is directed to pay the costs of the application.’
L V Theron
Acting Judge
of Appeal
CONCUR
:
HARMS DP)
CAMERON JA)
LEWIS JA)
CACHALIA JA)
1
Section
38 of POCA reads:
‘Preservation of property orders
(1) The National Director may by way of an
ex parte
application apply to a High Court for an order prohibiting any
person, subject to such conditions and exceptions as may be
specified
in the order, from dealing in any manner with any
property.
(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.
(3) A High Court making a preservation of property order shall at
the same time make an order authorising the seizure of the property
concerned by a police official, and any other ancillary orders that
the court considers appropriate for the proper, fair and effective
execution of the order.
(4) Property seized under subsection (3) shall be dealt with in
accordance with the directions of the High Court which made the
relevant preservation of property order.’
2
In
s 1 of POCA
‘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, whether committed within the Republic
or elsewhere’.
3
Section
5(b) provides that ‘no person shall deal in
any
dangerous dependence-producing substance or any undesirable
dependence-producing substance’ subject to a number of
exceptions
which are not relevant for present purposes.
Section 1(1) of the Drugs Act defines ‘deal in’ to
include ‘performing any act in connection with the
transshipment,
importation, cultivation, collection, manufacture,
supply, prescription, administration, sale, transmission or
exportation of the
drug’.
4
National
Director of Public Prosecutions v Mohamed NO
2003 (4) SA 1
(CC)
and
National Director of Public Prosecutions v R O Cook
Properties (Pty) Ltd; National Director of Public Prosecutions v 37
Gillespie
Street, Durban (Pty) Ltd; National Director of Public
Prosecutions v Seevnarayan
[2004] 2 All SA 491
(SCA);
2004 (2)
SACR 208
(SCA).
5
[2004]
2 All SA 491
(SCA);
2004 (2) SACR 208
(SCA).
6
[2006] ZACC 17
;
2006
(1) SA 38
(SCA);
2006 (2) SACR 525
(CC).
7
[2006] ZASCA 12
;
2006
(1) SACR 554
(SCA);
2007 (6) BCLR 575
(CC).
8
2003
(6) SA 447
(SCA).
9
1993
(1) SA 523
(A).
Zweni
set out the general requirements for
determining the appealability of a judgment or order.
10
Para
22.
11
In
general, a restraint order granted in terms of Chapter 5 of POCA may
only be varied or rescinded in accordance with s 26(10)(a)
which
provides that a high court which made a restraint order:
‘may on application by a person affected by that order vary or
rescind the restraint order or an order authorising the seizure
of
the property concerned or other ancillary order if it is satisfied-
(i) that the operation of the order concerned will deprive the
applicant of the means to provide for his or her reasonable living
expenses and cause undue hardship for the applicant; and
(ii) that the hardship that the applicant will suffer as a result of
the order outweighs the risk that the property concerned may
be
destroyed, lost, damaged, concealed or transferred.’
Section 26(10)(a) is, in substance, replicated in the context of
Chapter 6 of POCA by section 47(1)(a).
12
[2004]
2 All SA 491
(SCA);
2004 (2) SACR 208
(SCA) para 13 per Mpati DP and
Cameron JA.
13
First
National Bank of South Africa Ltd t/a Wesbank v Commissioner of SARS
[2002] ZACC 5
;
2002 (4) SA 768
(CC) paras 61-66, 97-100.
14
Para
18.
15
Para
29.
16
Para
31.
17
[2004]
2 All SA 491
(SCA);
2004 (2) SACR 208
(SCA).
18
Para
49.
19
This
was the reasoning adopted by Nkabinde AJA in
National
Director of Public Prosecutions v Parker
[2006]
1 All SA 317
(SCA);
2006 (3) SA 198
(SCA) para 17.
20
[2006]
1 All SA 317
(SCA);
2006 (3) SA 198
(SCA) para 22.
21
Prophet
v National Director of Public Prosecutions
2006 (1) SA 38
(SCA)
para 27.