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2015
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[2015] ZANCHC 54
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National Director of Public Prosecutions v Katong and Another (1979/2013) [2015] ZANCHC 54 (16 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
Case No:
1979/2013
Date heard:
09/10/2015
Date delivered:
16/10/2015
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Applicant
and
PHENYO
EDWIN
KATONG
1st Respondent
MOTLHANKAOTSILE
HENDRICK KATONG
2nd Respondent
Coram
:
Olivier J
JUDGMENT
Olivier
J:
[1].
This
is
an
application
in
terms
of
section
50
of
the
Prevention
of
Organised
Crime
Act
[1]
(“
POCA
”).
The
applicant,
the
National
Director of
Public Prosecutions, applies for an order forfeiting to the
State a
Nissan Maxima vehicle (“
the
vehicle
”)
on the
basis of it
having
been
the
instrumentality
of
an
offence
referred
to
in
Schedule 1 to POCA, as envisaged in subsection (a) of section 50(1)
of POCA.
[2].
It is common cause that the vehicle, at the time driven by the first
respondent, Mr Phenyo Edwin Katong, was stopped by police
in Kakamas
and that they found altogether 3.042kg of dagga in the vehicle. The
dagga was in six black bags, which in turn were
inside another bag.
[3].
The
vehicle
was
seized
and
the
first
respondent
was
charged
with
the
contravention
of
section
4
of
the
Drugs
and
Drug
Trafficking
Act
[2]
(“
the
Drugs
Act
”),
and
more
specifically
with
having
been
in
possession
of the dagga. He pleaded guilty and he was convicted on
this
basis. He
was
sentenced
to
a
fine
of
R8 000.00
or
two
years
imprisonment,
half of which was conditionally suspended.
[4].
The
applicant then successfully applied for a
provisional
preservation
of
property
order
[3]
.
When
that
order
lapsed,
a
fresh
preservation
order
was
granted.
The
present
application
for
forfeiture
was
ultimately
lodged.
It
is
opposed
by
the
first
respondent,
as
well
as
by
the
second
respondent,
Mr
Motlhankaotsile
Hendrick Katong, who is the father of the first
respondent.
[5].
The respondents’ version is that, although the vehicle is
registered in the name of the first respondent, it actually
belongs
to the second respondent, and that the
second respondent had been unaware
that the
first respondent was going to drive to Kakamas and was going to place
dagga in the vehicle. Both respondents are
from Manthe Village,
Taung Station, North West Province, although the second
respondent during the week
resides in
Rustenburg, where he works.
[6].
The respondents in any event deny that the vehicle had been an
instrumentality of the first respondent’s offence, and
they
furthermore argue that forfeiture of the vehicle would in the
circumstances in any event be disproportionate to the first
respondent’s offence.
[7].
The first question to be considered is whether the applicant has, on
the
totality
of
the
evidence,
proved
on
a
balance
of
probabilities
that the
vehicle was an instrumentality of the offence committed by
the
first
respondent
[4]
.
If
not,
the
application
would
on
this
basis
alone fail
and it would be unnecessary
to consider
the issue of
proportionality.
[8].
Both
possession of
[5]
and dealing
in
[6]
dagga would
qualify as offences
envisaged
in Item 22 of Schedule 1 to POCA, read with section 13 of
the
Drugs
Act.
The
applicant’s
case
appears
to
be
that
the
first
respondent
possessed
the
dagga
for
the
purposes
of
dealing. Mr
Somaru, the
deponent for the applicant, states that the vehicle was
chosen and
used for “
in
particular
”
the offence envisaged in section
5 of the
Drugs Act.
[9].
In his affidavit Captain GTP Robertson
furthermore stated that there had at
the time been
a number of syndicates in the Northern Cape Province that were
involved in illegal drug dealing and whose
modus operandi
were to use so-called runners to
transport the drugs in motor vehicles. He
did
not, however, go as far as to say that the first respondent had
according to the police been such a runner.
[10].
Robertson claimed the value of the dagga to have been R15 210.00.
[11].
It is common cause that the retail value of the vehicle is R44 500.00
and the trade value R33 000.00.
[12].
The first respondent’s version is that he had used the vehicle
to drive to Kakamas to visit his girlfriend. There he
purchased the
dagga for R1 500.00. He denies Robertson’s allegation regarding
the value of the dagga. He states that he bought
the dagga for his
personal use and that it would have been enough for him for about a
year.
[13].
It is trite that, where an applicant seeks final relief, factual
disputes
will
be
approached
on
the
basis
that
the
respondent’s
version
will
be
accepted
[7]
,
unless
it
is
“
far-fetched
and
clearly
untenable
”
[8]
.
As
regards
whether it has been proved that the first respondent’s
possession
of
the
dagga
was
for
the
purposes
of
dealing,
the
contents of
his statement in terms of section 112(2) of the
Criminal
Procedure
Act
[9]
are
ambiguous. He stated that he pleaded guilty “
to
the charge of dealing and or possession of dagga
”,
even though the
charge
was,
as
already
mentioned,
only
for
illegal
possession.
He
admitted
to
having
been
found
in
possession
of
the
dagga,
but
he
never
unequivocally admitted being guilty of dealing in the dagga or
of
possessing the dagga for such purposes.
[14].
The prosecutor had not only charged the first respondent with only a
contravention of the provisions of section 4 of the Drugs
Act (in
other words possession
simpliciter
), but also went on to
accept a plea of guilty to that charge. I think it can safely be
assumed that, had there been evidence implicating
the first
respondent in dealing, this would not have happened.
[15].
When the dagga was discovered the first respondent admitted
possession thereof. He did not at that stage make any admission
to
the effect that his possession was part of dealing, or was for such
purposes. In this application he denies having been involved
in
dealing in the dagga. His explanations for how he came to be in
possession of the dagga, and about his intentions with the dagga,
are
not in my view “
far-fetched
” or “
clearly
untenable
”.
[16].
The deponent for the applicant has not in reply taken issue with the
first
respondent’s
explanation
that he
had
actually
gone to
visit
his
girlfriend
and
had
then
bought
the
dagga
for
his
personal
use
(as
opposed to
having gone to Kakamas as a so-called runner). The first
respondent’s
averment in
this
regard
is
not
so
much as
referred to
in reply,
and the submission that “
in
so far as I do not deal with each
and
every
allegation,
these
allegations…
must
be
taken
to
be
denied
”
does
not
amount
to
a
proper
challenge
of
the
first
respondent’s
explanation
[10]
.
[17].
The value of the dagga is relevant when the probability of the first
respondent’s explanation is considered. It is in
my view not
far- fetched that he may have bought dagga to the value of R1 500.00
for his personal use, especially when regard is
had to his undisputed
evidence that he had a monthly income of approximately R3 000.00 and
that the dagga would have lasted him
for about a year.
[18].
Had the value of the dagga been R15 210.00 it may have affected the
probability of the first respondent’s explanation.
It would
arguably have been unlikely that the first respondent would have been
able to purchase dagga with a value of R15 210.00
for only R1 500.00
and, if not, that he would have spent such a substantial amount to
buy a year’s supply of dagga for himself.
[19].
Robertson
did
not
take
the
trouble
to
explain
how
the
figure
of
R15 210.00
was arrived at
[11]
. In fact,
he did not even explain why his
opinion
in
this
regard
would
be
admissible
evidence
[12]
.
Even
when
his
allegation
regarding
the
value
of
the
dagga
was
unequivocally
denied and
challenged, and when
the
applicant was faced with the
averment
that
the
dagga
had
actually
been
bought
for
R1 500.00,
no further
evidence in this regard was tendered.
[20].
Needless to say, the applicant also never tendered any evidence from
which it could be inferred that the first respondent
had been acting
as a so-called runner.
[21].
The first respondent has therefore not been shown to have possessed
the dagga for the purposes of dealing in it.
[22].
As already pointed out the simple possession of dagga, even for own
use, would have constituted an offence as envisaged in
Item 22 of
Schedule 1 to POCA. The next question to be considered would then be
whether the vehicle had been an instrumentality
of the offence of
possession of the dagga.
[23].
There is no evidence that the use of the vehicle would have been
required for the purposes of the possession of the dagga,
or even to
transport the dagga. It weighed a little more than 3 kilograms. There
is no evidence that the size of the six bags would
have made it
impossible for the first respondent to carry them. In fact, they were
found inside another bag, on the floor of the
vehicle.
[24].
The first respondent’s evidence that the purpose of his visit
to Kakamas had actually been to visit his girlfriend,
is uncontested.
There is no evidence that he would not have been able to purchase
this quantity of dagga where he resided, or in
Kuruman (To which he
was on his way back when the vehicle was stopped).
[25].
On the totality of the available evidence it is quite possible, and
even likely, that the purchase of the dagga in Kakamas
had been
purely coincidental to the first respondent’s visit to his
girlfriend. The same would then obviously apply to the
presence of
the dagga in the vehicle. The vehicle would then have been used
for the transportation of the first respondent
back to Kuruman, and
the presence of the dagga in it would have been completely
coincidental thereto.
[26].
There
was
no
indication
that
the
first
respondent’s
driving
of
the
vehicle
with
the
dagga
in
it
was
part
of
a
“
pattern
of
sustained
activity
”
[13]
.
[27].
In my view the applicant did not on a balance of probabilities
establish
“
a
functional
relation
”
between
the
vehicle
and
the
possession
of
the
dagga,
in
the
sense
that
the
vehicle
did
“
play
a
part,
in a
reasonably
direct
sense
”
in
the
first
respondent’s
possession
of the dagga
[14]
. The vehicle
was not the
“
means
by
which
”
the dagga was possessed by the first respondent
[15]
and it did
not
“
in
a
real
or
substantial
sense
facilitate
or
make
possible
”
the
possession
of the dagga
[16]
.
[28].
This makes it unnecessary to consider the issue of proportionality. I
will, however, say that the forfeiture of an asset with
a retail
value of R44 500.00 would on the face of it have been
disproportionate to the possession of dagga worth R1 500.00.
[29].
Usually costs would follow the result. In the present matter the
position is, however, complicated by
the
fact that the second respondent got himself
involved in the application by opposing it on the
basis of being the
real owner of the vehicle (and having been unaware of what the first
respondent was going to do with it).
[30].
The applicant’s case was that the vehicle belonged to the first
respondent, because it was registered in his name and
because he
himself had bought it. On this basis the second respondent would not
have had any business opposing the application
and would not have
been entitled to his costs.
[31].
The
respondents’
version
was
that
the
second
respondent
over
a
period of
time withdrew money from his bank account and
that he
then
gave
the
first
respondent
the
cash
to
buy
the
vehicle.
According
to
them
the
vehicle
was
registered
in
the
first
respondent’s
name
because
only
he
had
a
driver’s
licence,
which
was a
requirement to obtain insurance on the vehicle
[17]
.
Their
intention,
however,
according
to
them
was
that
the
vehicle
would
belong
to
the
second
respondent.
The
first
respondent
would
be
the primary
driver
of
the vehicle
and it
would be
used to
transport
members
of
their
family,
and to
take the
second
respondent
to
his
workplace.
[32].
In substantiation of this version reference was made to a copy of a
bank statement of the second respondent. The statement
does reflect
frequent withdrawals of differing amounts over a period of time.
[33].
The first problem, however, is that the total amount of the cash
withdrawals reflected in respect of the period preceding
the date of
the purchase of the vehicle would not have been enough to pay the
purchase price of the vehicle.
[34].
Secondly the statement reflects a continuation of such frequent
withdrawals of money even after the purchase date, when it
would no
longer have been necessary to make withdrawals to pay for the
vehicle, which of course raises the question whether
the
earlier withdrawals had really been for the purposes alleged by the
respondents.
[35].
The third problem is that neither of the respondents explained why
this
modus operandi
would have been followed and why the
second respondent would not instead have left the money safely in his
bank account until such
time as it was needed to purchase the
vehicle.
[36].
It is furthermore uncontested that, when the vehicle was seized, the
first
respondent
told
Constable
Mouton
that
the
vehicle
was
his,
and
in
his
section
112(2)
statement
he
once
again
referred
to
the
vehicle
as
his.
This
has
not
been
explained
by
either
of
the
respondents.
[37].
In
the
circumstances
the
respondents
have
in
my
view
failed
to
show
[18]
that the
second respondent had a sufficient interest in these
proceedings
to have intervened as a respondent
[19]
.
[38].
Mr Olivier, counsel for the respondents, conceded that he could not
on the evidence responsibly argue that it should be found
that the
second respondent is the owner of the vehicle, but he submitted that
there is no real dispute about the fact that the
vehicle was also
used for the transport of,
inter alia
, the second respondent
and that the latter would on this basis have had an interest in the
outcome of this application. In my view
this would however, if the
vehicle belonged to the first respondent, not have constituted an
interest sufficient for the second
respondent to be entitled to
oppose the application on this basis alone.
[39].
This would mean that the second respondent had no
locus standi
to
join the proceedings and in the circumstances he would not in my view
be entitled to his costs.
[40].
On the other hand I see no reason why the second respondent should be
liable for any of the costs of the applicant. There
is no indication
that his intervening as a respondent led to any costs which
would not in any event have been incurred on
the first respondent’s
version.
[41].
As far as the first respondent’s costs are concerned, he not
only made common cause with the second respondent’s
version,
but in fact devoted a substantial part of his answering affidavit to
it. This of course had to be dealt with by
the applicant in
reply. In doing so the first respondent contributed to the
applicant’s costs in respect of an
issue
unsuccessfully raised and supported by
the first respondent.
[42].
In my view the fair result in the circumstances would be that each
party bears its own costs.
[43].
In the premises the following order is made:
THE
APPLICATION FOR FORFEITURE IS DISMISSED.
_______________________
C
J OLIVIER JUDGE
NORTHERN
CAPE DIVISION
For
the applicant:
Adv
N P
Khoza
(Office
of the State Attorney)
For
the first and
second
respondents:
Adv A D Olivier
Instructed by:
Hugo Mathewson & Oosthuizen
(JO/KBV8/00030)
[1]
121 of 1998
[2]
140 of 1992
[3]
In terms of section 38 of POCA
[4]
Section 50(1)(a) of POCA
[5]
See the provisions of section 4 of the Drugs Act
[6]
See section 5 of the Drugs Act
[7]
Compare
Staatsdiensliga
van Suid-Afrika en Andere v Minister van Waterwese
1990
(2) SA 440
(NC) at
443G
[8]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 635C
[9]
51 of 1977
[10]
Compare
De
Lange c Presiding Bishop for the time being of the Methodist Churh
of South Africa
and
another
[2015]
1 All SA 121
SCA para [19]
[11]
Compare
Pricewaterhousecoopers
Inc v National Potato Co-Operative Ltd
2015
JDR 0371 (SCA)
para [53];
Jacobs
and Another v Transnet Ltd t/a Metrorail and Another
2015
(1) SA 139
(SCA);
S
v
M
1991
(1) SACR 91
(T) at 100 C-D;
Louwrens
v Oldwage
2006
(2) SA 161
(SCA) para [27]
[12]
Compare Law of Evidence, Schmidt & Rademeyer, para 17 2; Mkhize
v Lourens and Another,
2003 (3) SA 292
(T) at 298; RHM Agencies CC v
Pharazyn, 2010 JDR 0989 (KZP)
[13]
Compare
National
Director of Public Prosecutions v Parker
2006
(3) SA 198
(SCA);
Mohunram
and
Another
v National Director of Public Prosecutions and Another (Law Review
Project as
Amicus
Curiae
)
[2006] ZASCA 12
;
2007
(4) SA 222
(CC) para [52]
[14]
National
Director of Public Prosecutions v RO 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
2004
(2) SACR 208
(SCA) paras [21] and [32]
[15]
National
Director of Public Prosecutions v Patterson and Another
2001
(2) SACR 665 (C)
[16]
Prophet v National Director of Public Prosecutions
2005 (2) SACR 670
(SCA) para [17]
[17]
It does not appear whether they did eventually represent to an
insurer that the first respondent was the owner of the vehicle,
which would on the face of it on their version have constituted
fraud.
[18]
Gross
and
Others v Pentz
[1996] ZASCA 78
;
1996
(4) SA 617
(A) at 632C - E
[19]
Compare
National
Director of Public Prosecutions v Van der Merwe and Another
,
2011 (2) SACR
188
(WCC)
para [9];
The
National Director of Public Prosecutions v Mazibuko
,
2008 (2) SACR 611
(N)