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[2007] ZASCA 150
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National Director of Public Prosecutions and Others v Vermaak (368/06) [2007] ZASCA 150; [2007] SCA 150 (RSA); [2008] 1 All SA 448 (SCA); 2008 (1) SACR 157 (SCA) (28 November 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO
: 368/06
In the matter between :
THE NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
................................
Appellant
and
W J VERMAAK
................................
Respondent
______________________________________________________________________________
Before: MTHIYANE, NUGENT & PONNAN JJA
Heard: 20 NOVEMBER 2007
Delivered: 28 NOVEMBER 2007
Summary:
Prevention of Organised Crime Act 121 of 1998
–
instrumentality of an offence – motor vehicle driven under the
influence of intoxicating liquor – whether appropriate
that
vehicle be forfeited.
Neutral citation: This judgment may be referred to as
NDPP
v Vermaak
[2007] SCA 150 (RSA)
______________________________________________________________________________
J U D G M E N T
______________________________________________________________________________
NUGENT JA
NUGENT JA:
[1]
The respondent was convicted on two counts of driving under the
influence of intoxicating liquor. The National Director of Public
Prosecutions (NDPP) applied to the High Court at Pretoria under the
provisions of chapter 6 of the
Prevention of Organised Crime Act 121
of 1998
Act for an order that her motor vehicle be forfeited to the
state. The court (Ranchod AJ) held that the Act does not apply to
that
offence and that a motor vehicle is in any event not an
‘instrumentality’ of the offence and refused the
application.
The matter was decided in the court below before this
court held the contrary on both those issues in
National
Director of Public Prosecutions v Van Staden.
1
The NDPP now appeals
with the leave of that court.
[2]
The rules of precedent aim at maintaining a degree of legal
certainty, which is itself an element of the rule of law, and are
particularly important in courts whose decisions permeate the lower
courts and also influence the manner in which the profession
and the
public order their affairs. This court has always recognised that
while it is not bound absolutely by its earlier decisions
it will
depart from them only with considerable circumspection. Stratford JA
expressed that as follows in
Bloemfontein
Town Council v Richter
:
2
‘
The
ordinary rule is that this Court is bound by its own decisions and
unless a decision has been arrived at on some manifest oversight
or
misunderstanding that is there has been something in the nature of a
palpable mistake a subsequently constituted Court has no
right to
prefer its own reasoning to that of its predecessors – such
preference, if allowed, would produce endless uncertainty
and
confusion. The maxim “
stare
decisis
”
should,
therefore, be more rigidly applied in this the highest Court in the
land, than in all others.’
That
was said at a time when this was the final court and it must be seen
in that context. Needless to say this court is now bound
to follow
the legal principles that dictate decisions of the Constitutional
Court (the ratio decidendi of such decisions). But in
other cases the
principles enunciated in
Richter
still apply.
[3]
I would not ordinarily have revisited the decision in
Van
Staden –
particularly
while this court is constituted of only three members – but for
the fact that the subsequent decision of the Constitutional
Court in
Mohunram
v National Director of Public Prosecutions
3
might have cast
doubt upon its findings. For in that case the Constitutional Court
was unable to find that the Act (and chapter 6
in particular) applies
to individual criminal wrongdoing and a majority of its members
expressly left that question open. If the
Act does not apply to
offences of that kind then naturally
Van
Staden
was
wrongly decided. Whether we must in any event follow the decision in
Van
Staden
if
that is the case is fortunately not a matter that confronts us
because of the conclusion to which I have come.
[4]
There has for some time been a controversy, engendered largely by the
short title of the Act, as to whether it is confined to
cases of
‘organised crime’. Precisely what that term is said to
mean is not altogether clear – the term is not
defined in the
Act and is used on only one occasion but in circumstances in which
its precise meaning is not critical
4
–
but that is
not important for present purposes. For present purposes I use the
term to describe offences that have organizational
features of some
kind that distinguish them from individual criminal wrongdoing.
[5]
That controversy came to an end so far as this court was concerned
when it decided in a trilogy of cases – I will refer
to them
collectively as
Cook
Properties
5
–
that the Act
is ‘designed to go far beyond organised crime and clearly
applies to cases of individual wrongdoing’.
6
[6]
That finding in
Cook
Properties
was
not decisive of any of those cases, which is the principal feature of
a ratio decidendi as it was described by Schreiner JA in
Pretoria
City Council v Levinson.
7
But in the later
case of
Prophet
v National Director of Public Prosecutions
,
8
in which this court
adopted and applied the finding in
Cook
Properties
,
9
it was. For there
was no suggestion in
Prophet
that
the offence concerned (manufacturing a scheduled substance in
contravention of
s 3
of the
Drugs and Drug Trafficking Act 140
of 1992
) had features that brought it within the scope of ‘organised
crime’. On the contrary, as pointed out in the judgment,
it was
not even established that the drugs were being manufactured other
than for the appellant’s personal use.
10
And indeed, if such
additional features were a jurisdictional requirement for the
application of the Act, there would have been no
need to have adopted
the finding in
Cook
Properties
.
[7]
The decision in
Prophet
was
upheld by the Constitutional Court in a unanimous decision.
11
I think it is clear
that it viewed the evidence in the same light – had that court
considered that special features of the offence
concerned (features
of ‘organised crime’) were required to be present before
the Act applied I have no doubt that it
would have said what those
features are and that they were present in that case. I think it
follows irresistibly that that court,
like this court before it, took
the view that the Act is not confined to organised crime, for
otherwise the order that it made could
not have been given. That must
be taken to be part of the ratio of its decision, even though the
issue was not pertinently discussed,
for every decision necessarily
has a ratio and, as pointed out by Schreiner JA in
Fellner
v Minister of the Interior
,
12
where the ratio is
not expressed it must necessarily be ascertained by inference from
the order that was given when seen in the context
of the material
facts.
[8]
While the decision in
Prophet
stands we are bound
to follow the legal principle that was first laid down in
Cook
Properties
(and
adopted in
Van
Staden
)
that the Act is not confined to organised crime but extends to
individual wrongdoing. The individual wrongdoing with which we are
now concerned – as
Van
Staden
held
– falls squarely within the terms of item 33 of Schedule 1. It
seems to me that the finding in
Van
Staden
that
the offence falls within the purview of chapter 6 of the Act was
inevitable.
Van
Staden
also
held, basing itself on the decision of this court in
Mohunram
,
that a motor vehicle is an instrumentality of the offence. Nothing
that has subsequently been said warrants reconsideration of that
finding. Thus on both those issues I see no cause to now question the
findings in
Van
Staden
and
in those circumstances the contrary findings of the court below
cannot stand.
[9]
But it is now well established, and was repeated in
Van
Staden
,
that an order for forfeiture may be made only if the deprivation in a
particular case is proportionate to the ends at which the
legislation
is aimed, and distinctions between different classes of offence will
feature heavily in that part of the enquiry. I might
add that I also
think it is far more productive to make those distinctions at that
stage of the enquiry, when broadly framed distinctions
will suffice,
than at the jurisdictional stage, when distinctions need necessarily
to be precisely defined and have the real potential
to produce
anomalies. No doubt that is why, as has already been found, the
legislature did not contemplate classes of offences being
distinguished at the jurisdictional stage.
[10]
It was pointed out in
Cook
Properties
that
an order of forfeiture inevitably operates as both a penalty and a
deterrent but I think its primary purpose is remedial. Punishment
and
deterrence are part of the function of sentence and I do not
understand the Act to be aimed at simply adding to sentences that
might be imposed. On the contrary, I think it is apparent from the
nature of the measure that forfeiture aims primarily at crippling
or
inhibiting criminal activity, and it is in that light that the
discretion to order it ought to be exercised.
[11] Where an
offence has been committed in the course of a broader enterprise of
criminal activity that is being conducted by the
offender in
association with others it can serve not only to inhibit the
particular offender from continuing that activity but also
to arrest
the continuance of that activity by others who are party to the
ongoing enterprise. And even where the offence is committed
in the
course of an ongoing criminal enterprise that is being conducted by
the offender alone the withdrawal of property is capable
of having a
severely inhibiting effect on its continuance. It seems to me, in
other words, that forfeiture is likely to have its
greatest remedial
effect where crime has become a business.
[12] Conversely,
where the offence is not committed in the course of ongoing criminal
activity, as in cases of the kind that are now
in issue, the ordinary
criminal remedies are quite capable of serving the purpose of
deterring the commission of further offences,
whether by the
particular offender or by other offenders. If the sentences that are
available to serve that purpose are inadequate
it is open to the
legislature to remedy that defect, but I do not think that forfeiture
should be seen as a means of ‘topping-up’
penalties that
are imposed by a court.
[13]
It seems to me that those two extremes assist in exercising the
discretion to order forfeiture: the closer the offence comes
to the
first extreme the more appropriate it will be to order forfeiture;
and the closer the offence is to the second extreme the
less
appropriate that will be. That seems to me what Moseneke DCJ had in
mind (and I respectfully agree) when he said, in one of
the three
judgments delivered in
Mohunram,
13
none of which
commanded a majority:
‘
[I]n deciding
whether
or not forfeiture of property would be proportionate, the question
whether the instrumentality of the offence is sufficiently
connected
to the main purpose of POCA must be considered. I join Sachs J in
emphasising that the more remote the offence in issue
is to the
primary purpose of POCA, the more likely it is that forfeiture of the
instrumentality of the crime is disproportionate.
In other words,
when ordinary crime is in issue, the sharp question should be asked
whether it is a crime that renders conventional
criminal penalties
inadequate.’
Naturally, the
approach that I suggest is not inflexible. There might be cases in
which the offence, by itself, falls within the second
class that I
have described, but where the circumstances in which it is committed
call for something additional to the ordinary remedies
to inhibit
further offences. But I do not think I need elaborate. I intend only
to indicate that it is with those broad principles
in mind that I
have exercised my discretion in this case.
[14] In my view the
offence of driving under the influence of intoxicating liquor is
unquestionably at the second extreme. I am well
aware that it is a
widespread and noxious offence, that contributes significantly to
death and injury on the roads, as indicated
by the evidence that was
produced in this case. But the sentences that are available for the
offence (a fine or up to six years’
imprisonment), which in my
experience are seldom applied to anything like the full, seem to me
to be quite capable of having the
necessary deterrent effect. It is
true, as pointed out by the NDPP, that without a vehicle the offender
cannot again commit the offence,
but in reality it functions as
little more than an additional penalty. A motor vehicle that is used
to commit that offence seems
to me to fall into a class that is
altogether different to the infrastructure that is required to engage
in, for example, the business
of manufacturing or trafficking in
drugs, or the business of operating an illegal casino. It seems to me
that very special circumstances
will be required for the forfeiture
of a vehicle to be a proportionate response to the commission of the
offence. The circumstances
in which the offences in this case were
committed are not particularly exceptional and can be briefly stated.
[15]
On 5 July 2004 a motorist observed the respondent driving her vehicle
over the kerb of a street in Groblersdal and almost colliding
with a
cyclist. She then drove diagonally across the street and collided
with a fence. The motorist stopped his vehicle and approached
the
respondent but, oblivious to his presence, she reversed the vehicle
and continued on her way. The motorist returned to his vehicle
and
followed her while alerting the traffic police. The respondent veered
from side to side of the street, passed a stop sign without
stopping,
almost collided with an oncoming vehicle, and drove into the grounds
of a school where she came to a halt. The respondent
was heavily
intoxicated. A sample of blood revealed a concentration of alcohol of
0.36 grams per 100 millilitres of blood.
14
[16] About four
months later, on 25 October 2004, a traffic officer observed the
respondent again veering from side to side as she
drove along a
street in Groblersdal. He stopped the respondent and observed that
she was intoxicated. (An analysis of the concentration
of alcohol in
her blood is not disclosed by the evidence).
[17] Prior to the
commission of those two offences the respondent was convicted on one
occasion of driving a vehicle while the concentration
of alcohol in
her blood exceeded the prescribed limit (the concentration of alcohol
in her blood on that occasion was 0.38 grams
per 100 millilitres) and
sentenced to 12 months’ correctional supervision.
[18] The two
incidents I have described resulted in the respondent being convicted
(on pleas of guilty) on two counts of driving a
motor vehicle while
under the influence of intoxicating liquor. A report prepared by a
probation officer detailed a rather unfortunate
domestic life that
had contributed to the respondent turning to drink. The probation
officer reported that the respondent was anxious
to have assistance
to overcome her excessive drinking and recommended that she be
referred to a rehabilitation centre. The respondent
was sentenced on
each count to a fine of R8 000 or three years’ imprisonment, in
each case suspended for five years on condition,
amongst others, that
she receive treatment for a minimum of six months, and her driving
licence was suspended for a period of 12
months. The vehicle that is
now sought to be forfeited (it is at present in the possession of the
state under an interim preservation
order) is a dilapidated
Volkswagen Jetta.
[19]
I do not think the circumstances I have described come even close to
justifying a forfeiture order. It is apparent from the evidence
I
have described, and from the sentence that was imposed, that the
court that convicted the respondent considered the seat of the
problem not to be a course of reckless conduct in deliberate defiance
of the law, but rather an illness of alcohol abuse, and I see
no
reason to disagree. It seems to me that forfeiture of the vehicle
will function as no more than an additional penalty for the
commission of the offences. That is precisely what we said was not
permissible in the following passage in
Van
Staden
:
‘
For
the Act exists to supplement criminal remedies in appropriate cases
and not merely as a more convenient substitute.’
On those grounds the
order made by the court below was correct and the appeal must fail.
[20] The appeal is
dismissed with costs.
__________________
R.W.
NUGENT
JUDGE
OF APPEAL
CONCUR
:
MTHIYANE JA)
PONNAN JA)
1
2007
(1) SACR 338
(SCA).
2
1938
AD 195
at 232.
3
2007
(4) SA 222 (CC).
4
Section
68(b).
5
">
5
National
Director of Public Prosecutions v RO 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) SACR 208
(SCA).
6
Para
65.
7
1949
(3) SA 305
(A) at 317.
8
2006
(1) SA 38
(SCA).
9
Para
33.
10
Para
38.
11
Prophet
v National Director of Public Prosecutions
[2006] ZACC 17
;
2006
(2) SACR 525
(CC).
12
1954
(4) SA 523
(A) at 542F-H.
13
Para
126.
14
The
maximum concentration of alcohol in the blood may be 0.05 grams per
100 millilitres of blood.