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[2014] ZAFSHC 158
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National Director of Public Prosecutions v Rahantlane (3676/2013) [2014] ZAFSHC 158 (11 September 2014)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. : 3676/2013
In
the matter between:-
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
…..............................................
Applicant
and
SEBOLAI
PIGANIN RAHANTLANE
…............................................................................
Respondent
HEARD
ON:
14 AUGUST 2014
JUDGMENT
BY:
RAMPAI, AJP
DELIVERED
ON:
11 SEPTEMBER 2014
[1]
These were motion proceedings. The applicant applied for the
rescission of the court order and ancillary relief.
His motor
vehicle was declared forfeit to the state. Aggrieved by the
forfeiture order, he motioned these proceedings.
The respondent
opposed the application.
[2]
I deem it necessary to put the factual matrix of the matter into its
historical perspective. I pause to mention that these
motion
proceedings were preceded by motion proceedings initiated by the
respondent. Some of the facts not apparent from the
current
affidavits can be gleaned from the respondent’s affidavit filed
in connection with the preceding applications.
[3]
The applicant lived at Ficksburg. He owned a motor vehicle with
registration number D[…]. The motor vehicle
was a Ford
Bantam light delivery van. On 16 May 2013 he and a certain Mr
Thabiso Motseki travelled together from Ficksburg.
The
applicant was the driver and Motseki was the only passenger.
The passenger hailed from Maputsoe in the neighbouring state
of
Lesotho. From Ficksburg they travelled towards Clocolan, which
town they passed and proceeded towards Ladybrand.
[4]
On the same day, 16 May 2013, two police officers were on duty on the
public road. The police vehicle they used was clearly
marked as
such. It was manned by two police officers, namely warrant
officer J. van Heerden and warrant officer A.A. Hollzhauzen
both
stationed at Ladybrand police station. Warrant officer Van
Heerden was the driver while warrant officer Hollzhausen
was the only
passenger. Shortly before they met the applicant they were
dutifully doing crime prevention patrol on the provincial
road R26,
otherwise commonly known as Maluti Route. They were patrolling
the stretch of the road between Ladybrand and Clocolan.
[5]
Approximately 15 km before the civilians reached Ladybrand, they met
the police. The civilians and the police met at or
about
11h35. The loading compartment at the back of the silver
civilian vehicle was covered with a black tarpaulin.
With the
consent of the applicant, warrant officer Van Heerden searched the
vehicle. By then he had already introduced himself
as a police
officer to the applicant and his passenger. Warrant officer Van
Heerden opened the tarpaulin. He noticed
six black plastic
bags. He opened them. He discovered that those large
black plastic bags contained cannabis.
The applicant and his
passenger were arrested for dealing in cannabis.
[6]
From the scene the two suspects were taken to Ladybrand police
station where they were detained. In due course the cannabis
was weighed. It was established that its mass was 53,7 kg.
The street market value thereof was estimated to be R53 700.00.
The vehicle and its cargo of cannabis were seized by the police.
[7]
On 20 May 2013 the applicant and his passenger appeared in the
Ladybrand district court as accused no 1 and accused no 2
respectively
– exhibit “b”. The applicant
pleaded not guilty, but his co-accused pleaded guilty. He was
accordingly
convicted for contravention of section 5(b) of the
Drugs
and Drug Trafficking Act 140 of 1992
. The court then ordered
that the applicant be separately tried. The district magistrate
court then proceeded further
in respect of the applicant’s
co-accused. Mr Motseki was sentenced in terms of
section
276(1)(b)
of the
Criminal Procedure Act 51 of 1977
. He was
sentenced to 21 (twenty one) months’ imprisonment of which 9
(nine) months were conditionally suspended for
5 years. The
53.7 kg cannabis was declared, in terms of
section 21
Act 140 of
1992, forfeit to the state. The relevant case number was
853/2013.
[8]
Still on 20 May 2013 the applicant appeared again, but alone in the
Ladybrand district court. The applicable court case
number was
866/2013. Seemingly the court returned the verdict of not
guilty - see anx “e” the applicant’s
supporting
affidavit.
[9]
Warrant officer Hollzhauzen became the investigating officer of the
criminal case. His investigation established
·
that the
vehicle seized by the police was officially registered in the name of
one Mahadik;
·
that the
registered owner resided at 52 Z[…] Street, Ficksburg;
·
that the
vehicle was registered as Ford Bantam LDV D[…]; and
·
that it was so
registered on 18 January 2013.
These
facts were established on 27 May 2013.
[10]
On 13 September 2013 an application was launched
ex
parte
by the respondent
qua
applicant basically against the
applicant
qua
defendant. The application was brought in terms of section
38(1) of the Prevention of Organised Crimes Act 121 of 1998.
Kruger J heard the application on Thursday, 19 September 2013
ex
parte
and in camera. He then
granted a preservation order in terms of section 38(2) of POCA Act
121 of 1998. The preservation
order prohibited anyone with the
knowledge of such order from dealing with the Ford Bantam D[…]
in any manner other than
as required and permitted by the
preservation order. The preservation order called upon any
person who had an interest in
the seized motor vehicle and who
intended opposing the forfeiture order or who intended applying for
the exclusion of his or her
interest from the contemplated forfeiture
order to enter an appearance to defend within 14 calendar days after
service or publication
of the provisional order.
[11]
The interested person specifically identified in in the main
preservation application for service of the preservation order
was Mr
Sebolai Rahantlane, the applicant in the current rescission
application –
vide
par
3 preservation order and notice in terms of section 39(1)(b) of
POCA.
[12]
On 5 December 2013 the National Director of Public Prosecutions filed
an application in terms of section 48(1) POCA to have
the Ford Bantam
DWR051FS, owned by Mr Sebolai Rahantlane and seized by the police at
Ladybrand on 16 May 2013, declared forfeit
to the RSA State.
The vehicle was already subjected to preservation order granted by
Kruger J on 19 September 2013.
The director’s forfeiture
application was argued before me on Thursday, 12 December 2013.
The director averred that
the sheriff duly served the preservation
order granted in terms of section 38(1)(b) of POCA 121 of 1998 on the
vehicle owner, Mr
Sebolai Rahantlane, on 9 October 2013 –
vide
anx “bs2” p 16 of the record; that the sheriff also
served the public notice in terms of section 39(1)(b) of POCA 121
of
1998 on the same specially identified defendant on the same day 9
October 2013 –
vide
anx “bs2” p 17 of the record; that the notice of motion,
the supporting affidavit and annexure thereto were also served
by the
sheriff upon the defendant on 9 October 2013; that the sheriff had
served all the aforesaid court papers upon the defendant
personally
at his place of residence and that such service notwithstanding the
defendant had not in any way signalled his intention
to oppose the
grant of the forfeiture order.
[13]
Having considered the director’s application and counsel’s
submission, I granted a forfeiture order in terms of
section 48(1)
read together with section 53(1)(b) of POCA 121 of 1998. The
declaration effectively stripped the defendant
of all his real
rights, title and interest in the Ford Bantam D[…].
Since 12 December 2013 all rights, title and interests
in the
property vest in the state.
[14]
On 2 February 2014 the erstwhile defendant, Rahantlane, filed the
current rescission application to have the forfeiture order
I granted
on 12 December 2012 in his absence, rescinded. The residual
relief sought by the applicant was that he be granted
leave to oppose
the respondent’s forfeiture application; that all the executive
steps taken concerning the disposal of the
motor vehicle in question
be stayed pending the outcome of the fresh adjudication of the
forfeiture application and that the respondent
be directed to pay the
costs of opposing the rescission application. Although the
rescission application was initially enrolled
for hearing on 20 March
2014, it was finally argued before me on 14 August 2014. About those
historical facts there was no dispute.
[15]
The dispute centred around a few points. Among others, the
parties disagreed as regards the following:
·
the
relationship between the applicant and his passenger, Mr Thabiso
Motseki;
·
the precise
place where they met;
·
the
circumstances in which the police officers met them;
·
the question
whether the applicant had a
bona
fide
defence;
·
the question
whether he had given adequate explanation for this failure to oppose
the forfeiture application; and
·
the correct
outcome of the criminal proceedings against him in the district court
– to wit contravention of
section 5(b)
of the
Drugs and Drug
Trafficking Act 140 of 1992
and the effects thereof on the forfeiture
order.
[16]
The issue in the application was whether good cause had been shown by
the applicant to warrant the setting aside of the default
order I
granted against him in terms of
section 53
of POCA on 5 December
2013.
[17]
Mr Nel, counsel for the applicant, submitted that the applicant had
made out a proper case for the relief sought, as fully
set out in the
notice of motion. Accordingly, counsel urged me to rescind the
forfeiture order, grant the applicant leave
to oppose the forfeiture
application and direct the respondent to pay the costs.
[18]
Mr Ntimutse, counsel for the respondent, differed. He submitted
that the applicant had failed to show good cause to justify
rescission of the forfeiture order. Accordingly, counsel urged
me to find in favour of the respondent by dismissing, with
costs, the
applicant’s rescission application.
[19]
In general, rescission of judgment is governed by Uniform
Rule
31(2)(b)
which regulates:
“
(b)
A defendant may within 20 days after he has knowledge of such
judgment apply to court upon notice to the plaintiff to set aside
such judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as to it seems meet.”
[20]
The concept or phrase “good cause shown” was elucidated
in
Madinda v Minister of Safety and
Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA).
[21]
In an application for rescission of default judgment, it is incumbent
upon the applicant to adequately explain the reasons
for the delay so
that the judge can understand what really led to the default –
Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A).
[22]
The procedure as regards the initial preservation order in terms of
section 38(1)
, as well as the procedure as regards the subsequent
forfeiture order in terms of
section 48(1)
are both located in
chapter 6 of the Prevention of Organised Crimes Act 121 of 1998.
See
National Director of Public
Prosecutions and Another v Mohamed NO and Others
[2002] ZACC 9
;
2002 (4) SA 843
(CC) par [19]; Kruger:
Organized
Crime and Proceeds of Crime Law in South Africa
.
The theme of the chapter is about the instruments of crime.
Here the instrumentality of the offence and not the person
of the
offender takes the centre stage. The primary focus of the
inquiry is not the role played by the owner of the property,
but
rather the role of the property itself in the commission of the crime
or the furtherance of a crime regardless of the identity
of the
actual perpetrator who used the property as an instrument –
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) at par [21]. That is the first stage of
the chapter 6 inquiry.
[23]
The second stage of chapter 6 inquiry comes into play once it has
been shown that a specifically identified property had been
used as
an instrument of crime. The secondary focus of the forfeiture
inquiry shifts to the state of mind of the owner of
the property
implicated as an instrument in the commission of a crime. The
owner’s state of mind becomes crucial at
this stage when the
judge has to determine whether real rights or certain interest should
or should not be excluded from the forfeiture
order sought –
RO
Cook Properties
,
supra
.
[24]
It follows from the aforesaid exposition of chapter 6 procedures that
a procedure as regards restraint order and the twin procedure
as
regards confiscation orders are foreign to chapter 6. Instead,
such procedures are domestically located in chapter 5.
In that
domain the role of the property owner or wrongdoer and not the
property as such is a dominant theme of the confiscation
inquiry.
Therefore, a property not directly implicated in the commission of a
specific crime, may be targeted on the grounds
that it was criminally
acquired by means of organised criminal activity or that it
represented proceeds of crime.
[25]
In his supplementary heads of argument counsel for the applicant
abandoned his original heads of argument
in
toto
. The concession that chapter
5 did not apply to the respondent’s main application, which
gave rise to the forfeiture
order, was correctly made.
[26]
I now turn to examine the facts in the instant matter. They are
largely common cause as regards the first stage of the
inquiry.
The applicant was the
de facto
owner of the motor vehicle. There was a passenger in his motor
vehicle. They travelled together from somewhere in the
Ficksburg district. The police officers searched the
applicant’s motor vehicle. They found a 53,7 kg cargo of
cannabis in it. The applicant and his passenger were criminally
charged for contravention of section 5(b) of the Drugs and
Drug
Trafficking Act 140 of 1992. His passenger was convicted on his
plea.
[27]
At par 8.2 of his supporting affidavit the applicant stated that his
vehicle was not instrumentally used in the furtherance
of a crime.
He made that assertion because, as he reckoned, no such evidence was
led at his trial on 20 May 2013. The
contention was
fundamentally flawed. The magistrate court lacks jurisdiction
to entertain forfeiture applications.
Only the high court has
jurisdiction to entertain applications for preservation orders and
the related forfeiture orders.
[28]
On those proven facts Mr Ntimutse’s submission that the
applicant’s property was criminally used as an instrumentality
of an offence, was very persuasive. That much Mr Nel correctly
conceded –
vide
par 8.6 applicant’s supplementary heads of argument. See
Kruger,
op cit
,
p 116 at par c;
National Director of
Public Prosecutions v Seloane
[2003] 3 ALL SA 102
(NC).
[29]
In terms of section 38(2) of POCA 121 of 1998 the high court is
empowered to grant a preservation order if there are reasonable
grounds to believe that a specified property is an instrumentality of
an offence referred to in schedule 1 of POCA or is the proceeds
of
unlawful activities or both. The forfeiture application which
precipitated this rescission application was brought under
section 48
of POCA to obtain an order declaring the property forfeit to the
state on the grounds that the property represented
proceeds of
unlawful activities or that a property was an instrumentality of
offences listed under schedule 1 to POCA or both.
In terms of
section 48(1) an application to declare seized property forfeit to
the state may be made by the director in respect
of property that is
subject to a preservation order while such order is still in force.
[30]
As I have already indicated, counsel for the applicant no longer
supported the contention that the applicant’s motor
vehicle was
not an instrumentality of an offence. The applicant’s
contrary allegation to that effect in his supporting
affidavit was
deemed to have been implicitly abandoned. I conclude therefore
that the applicant’s motor vehicle was
unlawfully used as a
mobile instrument to commit the crime.
[31]
Now the second stage of the inquiry – The applicant’s
contention was that he did not have the knowledge that Mr
Motseki’s
luggage consisted of a prohibited substance, cannabis. The
respondent’s contention was that the two
occupants of the light
delivery van were transporting the load of cannabis together.
[32]
According to the applicant he drove alone from his place of abode on
the day in question. He did not say at what time
he drove off.
He was on his way to Kimberley. Again he did not say what the
purpose of the trip was. Whether
he was on a business or
private errand did not appear on his supporting affidavit. By
sheer coincidence, he alleged, he met
a hitchhiker. Precisely
where at Ficksburg he and the total stranger met he did not
disclose. He agreed to give the
hitchhiker a lift from
Ficksburg to Ladybrand. The hitchhiker had a luggage which
consisted of several bags. The hitchhiker
loaded his luggage
onto the back loading compartment of his van. He did not know
the several bags contained cannabis.
He did not enquire or
ascertain on his own accord, so he suggested.
[33]
In the first place, I find it highly improbable that a drug
trafficker, with six large plastic and heavy plastic bags of 53,7
kg
cannabis would, in broad daytime, wait on a public road to
hitchhike. One thing certain was that he could not have walked
on foot from Maputsoe or wherever he came from, to the spot on a
public road at Ficksburg, where the applicant found him.
The
mass of the drug cargo was simply too heavy for the man to carry
alone. The risk of arrest would have been so obviously
great
that the hitchhiker was unlikely to have taken. The hitchhiker
did not precisely say as to where he met the applicant.
All
these cast serious doubt as regards the circumstances in which the
two men met. There are strong indicators that the
two did not
meet by chance on a public road; that they were not strangers to each
other and that they were in it together before
they got onto the
Maluti Route.
[34]
In the second place, the version of the applicant as regards the
circumstances in which he met the two police officers was
disputed.
His version was that he stopped along the road before he reached
Ladybrand. He did so at the request of the
hitchhiker.
There he waited for the hitchhiker’s wife. He kindly
agreed to wait. He did not mention the
name of either the
hitchhiker’s or that of his wife. The applicant’s
version was disputed by the two police officers.
According to
them the van was in motion when they first noticed it on the public
road. They followed it and signalled to
the applicant to stop.
He obliged, they said.
[35]
Their version was that the vehicle was in motion and that they caused
the applicant to stop it, was corroborated by the applicant’s
companion, Mr Motseki. In his statement in terms of
section 112
of the
Criminal Procedure Act 51 of 1977
he was recorded as follows:
“
BESKULDIGDE:
Die 16de het die polisie by ons gekom, hulle het ons
kar
na die kant afgestaan
, toe sê
hulle ons moet daar staan en hulle het nou ondergesoek, hulle het ons
ondergesoek.
HOF:
Reg so u sê
die voertuig waarin u ry word afgetrek deur die polisie
en het hulle toe die voertuig deur soek, is dit wat u sê?
BESKULDIGDE:
Ja Edelagbare.
”
[36]
It followed, therefore, that the version of the applicant was
probably false. Since he showed himself to be untruthful
about
his meeting with the police officers, his version about his meeting
with Mr Motseki was likewise probably false.
[37]
In the third place, the conduct of the applicant on the scene was
inconsistent with that of an innocent and ignorant driver.
He
showed no surprise to the police officers or anger towards the
stranger who caused him all the unexpected trouble. Instead,
he
appeared shocked at the time warrant officer Van Heerden stopped him
before the police officers had even found out that the
bags contained
cannabis. The guilty are afraid, so goes the saying. That was
the first thing.
[38]
When the cannabis was discovered, he did not appear innocently
surprised to see cannabis on the back loading compartment of
his
vehicle. His behaviour and emotions were not surprising at
all. He was not surprised because he probably knew,
right from
the outset, that the bags contained cannabis.He did not spontaneously
inform warrant officer Van Heerden that he did
not know that the bags
contained cannabis.
[39]
He did not inform the police officer, there and then, that his
passenger was a total stranger to him who had hitchhiked a lift.
He did not inform the police officer that he did not help the
passenger to load the bags onto the van. Worse still, he did
not instantly confront the passenger on the scene about loading the
cannabis on his motor vehicle without his consent. He
did not
say to the police he would not have given the passenger a lift had he
known that his cargo consisted of cannabis.
Like his passenger,
instead of protesting his innocence, he guiltily resigned to events.
[40]
Mr Ntimutse submitted that it was highly unlikely that the applicant
would have allowed a total stranger to load six heavy
bags onto his
vehicle without enquiring as to their contents. On that
notorious route most residents of Ficksburg would probably
have
personally ascertained that such suspicious bags contained
incriminating stuff.
[41]
In my view those multiple omissions were telling against the
applicant. The applicant’s conduct at the very crucial
moment of the entire episode was not consistent with the conduct of
an innocent motorist who tried to help someone along the way,
but
ended up in the trouble he never saw coming.
[42]
According to the applicant the police discovered the cannabis and
confronted him and his passenger. The passenger instantly
acknowledged that the cannabis was his and what was the applicant’s
reaction?
“
I
reported to the police that the vehicle is my property.”
In
a nutshell, as can be seen, that was the high watermark of the
applicant’s version. A truly innocent motorist would
have
done much more than the applicant did. He failed to deny
knowledge of the cannabis found on his vehicle. He did
not
distance himself from the cannabis or from his passenger. The
impression he tacitly created was that they were acting
in cahoots.
[43]
I have considered the grounds for the respondent’s belief, not
only in support of the submission that the applicant’s
vehicle
was criminally used as an instrument of an offence, but also that the
applicant factually knew or probably knew that his
vehicle was used
as such. It appeared to me, on the facts, that the applicant
was not merely aware of such unlawful use of
his property, but
actively participated in such unlawful use. There can be no
reasonable doubt, therefore, that he had a
guilty state of mind at
all times from the moment the cannabis was loaded onto his vehicle.
That jelled very well with his
emotional state.
[44]
The applicant, unlike his passenger, pleaded not guilty which was why
the trials were separated. Since he had so pleaded,
a lis was
declared between him and the state. The door was shut for the
state to withdraw the charge. As an accused
in that situation,
he became entitled to the verdict. That being the case, Mr
Nel’s submission was correct. The
applicant was found not
guilty, as correctly noted in anx “e”. The argument
of Mr Ntimutse, to the contrary,
as well as the averments of the
respondent’s deponent and witnesses on that point, were
untenable.
[45]
The high court proceedings, which the applicant would like to attack,
were civil and not criminal in nature –
section 37(1)
Act No
121 of 1998. The outcome of the criminal proceedings in the
district magistrate court was of no moment to those forfeiture
proceedings – section 50(4) Act No 121 of 1998 specifically
provides:
“
(4)
The validity of an order under subsection (1) is not affected by the
outcome of criminal proceedings, or of an investigation
with a view
to institute such proceedings, in respect of an offence with which
the property concerned is in some way associated.”
[46]
The applicant’s vehicle was, with the full or probable
knowledge of the applicant, not in some way but in a big way closely
associated with the crime of dealing in cannabis in contravention of
section 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
.
That being the case, the acquittal of the applicant had no bearing on
the validity or competence of the forfeiture order
I made on 12
December 2013. In coming to that conclusion, I was fortified by
several decisions such as
National
Director of Public Prosecutions and Another v Mohamed NO and Others
[2002] ZACC 9
;
2002 (4) SA 843
(CC);
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)
at 221;
National Director of Public
Prosecutions v Prophet
2003 (8)
BCLR 906
(C).
[47]
At par 8.4 of his supporting affidavit the applicant contended:
“
My
further defence on the merits is that I was found not guilty in the
criminal trial. I find it strange that respondent omits
this
important information in the main application.”
[48]
In
Mohamed’s
case,
supra
,
at par [17] Ackermann J, writing for the unanimous court, said the
following:
“
Section
38
forms part of a complex, two-stage procedure whereby property
which is the instrumentality of a criminal offence or the proceeds
of
unlawful activities is forfeited. That procedure is set out in great
detail in ss 37 to 62 of the Act, which form chap 6 of
the Act.
Chapter 6 provides for forfeiture in circumstances where it is
established, on a balance of probabilities, that property
has been
used to commit an offence, or constitutes the proceeds of unlawful
activities,
even where no criminal
proceedings in respect of the relevant crimes have been instituted.
In this respect, chap 6 needs to be understood in contradistinction
to chap 5 of the Act.
Chapter 6 is
therefore focused, not on wrongdoers, but on property that has been
used to commit an offence or which constitutes
the proceeds of crime.
The guilt or wrongdoing of the owners or possessors of property is,
therefore, not primarily relevant to
the proceedings.
”
[49]
It has to be emphasised that the test in the forfeiture proceedings
is different from the test in the criminal proceedings.
In
criminal proceedings it is trite that the test is beyond reasonable
doubt. However, that test does not apply to forfeiture
proceedings. This is so because forfeiture proceedings are
civil proceedings in nature. In forfeiture proceedings as
in
any civil proceedings, as one would know, the test is proof on a
balance of probabilities. In
National
Director of Public Prosecutions v Swartz
2005 (2) SACR SECLD 186 Leech J concluded that:
“
In
forfeiture proceedings sufficient evidence must be adduced on a
balance of probabilities in satisfaction of the requirements
of s
48(1). Those requirements being that the property concerned
must be shown to have been an instrumentality of an offence
referred
to in schedule 1 and/or that the property was representative of the
proceeds of an unlawful activity.”
See
further
Mahomed
,
supra
.
[50]
I want to comment briefly on the applicant’s explanation for
his delay. The preservation order was served on him
on 9
October 2013. He was called upon to file notice of his
intention to oppose the matter within 14 calendar days.
His
unimpeded procedural right to do so lapsed on 23 October 2013 –
section 39(2) and paragraph 5 preservation order.
The
forfeiture order was granted against him on 5 December 2013. He
was yet again allowed a period of 20 calendar days within
which he
could apply that the order be varied or rescinded. His
unimpeded procedural right to do so also lapsed on 25 December
2013.
See paragraph 3 forfeiture order.
[51]
The current motion proceedings were initiated by the applicant on 2
February 2014, some 101 calendar days after his first procedurally
automatic right had been extinguished by effluxion of time and 38
calendar days after his second procedurally automatic right had
suffered the same fate.
[52]
The essence of his explanation was that he was not gainfully
employed. I really wondered whether indigence had anything
to
do with his default. Although he was unemployed and poor as he
claimed, he owned a motor vehicle at the time of his arrest.
He
was privately driving to Kimberley at the time. Although he
could not financially afford to travel by public transport
to
Bloemfontein in 101 days for a very important consultation with his
legal representative, he could nonetheless afford to buy
a cellphone
– see anx “b2” to his supporting affidavit an email
between his attorney, Mr Wouter de Villiers and
his advocate Mr P.W.
Nel. A taxi fare would have been comparatively less than the
price of a new cellphone or a tank of petrol.
Therefore, it
seemed to me that he never had a serious intention to oppose the
forfeiture application. His explanation for
such an inordinate
delay failed to impress me.
[53]
I have painstakingly considered the applicant’s prospects of
success in the main application if leave to appeal were
granted.
I have demonstrated that he has no good prospects of success at all.
It was quite clear to me that he misconceived
the law. He
reckoned that because he was acquitted in the magistrate’s
court, the acquittal
ipso facto
entitled him to reclaim his property. The prospects of success
are so poor that nothing else can be good enough to redeem
them.
It being the case, it will be a futile exercise to dwell on the
remaining factors relevant to the inquiry.
[54]
It is a matter of logic that if the prospects of success are as poor
as in this matter, an explanation for the delay, however
good, would
not be sufficient to secure rescission –
Madinda
,
supra
.
As I see it, no good cause was shown to rescind the forfeiture
order. Consequently I am inclined to dismiss the rescission
application on the merits.
[55]
I have considered all the procedural irregularities the applicant
complained of. There was virtually no substance in
anyone of
them. I would, therefore, also dismiss that leg of the
rescission application.
[56]
In the result, I make the following order:
56.1
The applicant’s rescission application is dismissed.
56.2
The forfeiture order stands.
56.3
The applicant pays the costs.
_________________
M.
H.
RAMPAI,
AJP
On
behalf of applicant: Adv P.W. Nel
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv K.J.A. Ntimutse
Instructed
by:
State
Attorney
BLOEMFONTEIN