National Director of Public Prosecutions v Van Staden and Others (531/05) [2006] ZASCA 107; [2007] 2 All SA 1 (SCA); 2007 (1) SACR 338 (SCA) (9 November 2006)

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[2006] ZASCA 107
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National Director of Public Prosecutions v Van Staden and Others (531/05) [2006] ZASCA 107; [2007] 2 All SA 1 (SCA); 2007 (1) SACR 338 (SCA) (9 November 2006)

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IN
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case No:
531/2005
In the
matter between:
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
Appellant
and
DR J A
K VAN STADEN First Respondent
FIRSTRAND
BANK LIMITED Second Respondent
TOYOTA
FINANCIAL SERVICES Third Respondent
________________________________________________________________________
Coram: CAMERON, NUGENT JJA, MALAN, THERON and CACHALIA AJJA
Heard: 14 SEPTEMBER 2006
Delivered: 9 NOVEMBER 2006
Summary: Chapter 6 of the
Prevention of Organised Crime Act 121 of
1998
– motor vehicle an ‘instrumentality’ of the offences of
driving under the influence of intoxicating liquor and driving with
excess alcohol in the blood.
Neutral citation: This judgment may be referred to as National
Director of Public Prosecutions v Van Staden [2006] SCA 135 (RSA).
________________________________________________________________________
JUDGMENT
________________________________________________________________________
NUGENT JA
NUGENT JA:
[1] It has been said, at times, that the purpose of the
Prevention of Organised Crime Act 121 of 1998
is to combat the
special evils that are associated with organised crime,
1
but that is not entirely correct. That is certainly one of its
purposes, and perhaps even its principal purpose, but as pointed out
by this court in
National Director of Public Prosecutions v R O
Cook Properties (Pty) Ltd
et al,
2
its provisions are designed to reach far beyond organised crime
and apply also to cases of individual wrongdoing.
3
In this appeal the more mundane, though nonetheless serious,
offences of driving a motor vehicle on a public road while under the
influence of intoxicating liquor,
4
or while the concentration of alcohol in the driver’s blood exceeds
the prescribed level,
5
are in issue. The question that it raises is whether a motor vehicle
that is driven in those circumstances constitutes an
‘instrumentality’
of the offence liable to forfeiture to the
state under the provisions of chapter 6 of the Act. Though the
question was presented
before us in this narrow form it requires us
to consider the broader context within which the term falls to be
construed.
[2] The
appeal arises from five applications that came before the High Court
in Port Elizabeth in which the National Director of Public
Prosecutions (NDPP), in anticipation of forfeiture applications being
brought, sought orders for the preservation of motor vehicles
that
were alleged to have been driven under those conditions. The
applications were dismissed by Jones J in the court below
6
and the NDPP now appeals with his leave. The respondents were all
given leave to intervene in the proceedings. The first respondent
is
the possessor of one of the vehicles and he abides the decision of
the court. The appeal was opposed by the second respondent,
who
financed the purchase of one of the vehicles, and by the third
respondent, who also finances the purchase of motor vehicles and
thus
has a more general interest in the outcome of the appeal. This is
regarded by the parties as a test case, and thus the record
of only
one of the applications is before us, but the outcome will apply
equally to the remaining applications.
[3] The
scheme of chapter 6 of the Act was dealt with extensively by this
court in
Cook Properties
and I need highlight only its
principal components so far as they are now material. It authorises
the NDPP to apply to a High Court,
without notice, for an order that
has the effect of temporarily depriving a person of property, so as
to preserve the property in
anticipation of an order being sought for
its forfeiture.
7
A court is required to make such an order ‘if there are reasonable
grounds to believe that the property concerned . . . is an
instrumentality of an offence referred to in Schedule 1’ of the
Act.
8
Once such an order has been made the NDPP is required to give
notice of the order to interested parties that are known to him and
they are entitled to intervene in the subsequent proceedings. Within
90 days of a preservation order being made the NDPP may apply
to a
High Court for an order declaring all or any of the property forfeit
to the state.
9
A court is required to make such an order if it finds, as a matter
of probability, that the property is an ‘instrumentality’
of such
an offence,
10
subject to its power to exclude from the operation of the order
certain interests that are shown to have been acquired in specified
circumstances.
11
[4] The
potential of these provisions to intrude on the constitutional
guarantee against arbitrary deprivation of property featured
significantly in the construction that was adopted in
Cook
Properties,
12
which held that whatever more might be required to avoid a
deprivation being arbitrary, and thus constitutionally objectionable,
there needs at least to be a rational relationship between the
deprivation and the legislative ends that are sought to be attained
through the deprivation.
13
Whether that relationship is sufficient in a particular case to avoid
the consequence of constitutional invalidity must necessarily
depend
as much upon the proximity of the property to the offence as upon the
proportionality of the deprivation to the legislative
ends. For even
where the property is sufficiently proximate to the offence to be an
‘instrumentality’ of the offence the deprivation
might
nonetheless be so disproportionate in the circumstances as to make
the deprivation arbitrary. As pointed out in
First National Bank,
14
in another context:
‘[F]or the validity of such deprivation, there must be an
appropriate relationship between means and ends, between the
sacrifice
the individual is asked to make and the public purpose this
is intended to serve’.
The
constitutional validity of the forfeiture provisions of chapter 6 is
thus a function both of the ambit of an ‘instrumentality
of an
offence’ and of the capacity of a court to refuse to allow a
disproportionate forfeiture.
[5] While
s 50
of the Act purports to cast an obligation upon a court to order
the forfeiture of property once it is satisfied that it constitutes
an ‘instrumentality’ of the offence concerned it was said in
Cook
Properties,
albeit that it was not necessary to consider the
point, that ‘our earlier conclusion that a proportionality analysis
may be constitutionally
required when forfeiture is ordered . . . is
incompatible with the rigidity [of such a construction of
s 50]’.
15
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15
It was subsequently held by this court in
Prophet v National
Director of Public Prosecutions
16
that a court may decline to make a forfeiture order if the
particular deprivation is disproportionate to the crime,
17
and that was subsequently approved by the Constitutional Court.
18
[6] In
Prophet’s
case the majority of this court (the
Constitutional Court did not find it necessary to express itself on
the matter) held that
‘
[a]
mere sense of disproportionality should not lead to a refusal of the
order 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.’
19
The
imperative for that conclusion was the need to ‘ensure that the
purpose of the law is not undermined’ and that purpose was
said to
be ‘the rapid growth, both nationally and internationally, of
organised criminal activity’. The minority considered that
the
requirement that the disproportion must be ‘significant’ before a
deprivation would be unconstitutional was unjustified.
20
[7] I
have already observed that organised crime is but one of the targets
of the Act (that is exemplified by the present case).
Incursions
upon conventional liberties that are justified by the particular
difficulties encountered in the detection and successful
prosecution
of organised crime are not similarly justified in cases of ordinary
crime that do not present those difficulties. I
do not think it is
permissible to look to one threat that the Act aims at combating (the
threat posed by organized crime) in order
to justify its application
in relation to a quite different threat (the threat that is posed,
for example, by drunken driving) that
does not present the same
challenges. It must be borne in mind that drunken driving, which
does not ordinarily result from organised
illicit activity, and
presents no special difficulties to detect and prosecute, can attract
substantial penalties, and the ordinary
criminal law ought to be the
first port of call to combat the evil. For the Act exists to
supplement criminal remedies in appropriate
cases and not merely as a
more convenient substitute.
[8] No
doubt there will be cases in which the forfeiture of a motor vehicle
will complement those ordinary remedies, particularly
where it will
have an effective remedial impact,
21
but I do not think in cases of drunken driving there is justification
for imposing the higher standard of ‘significant’
disproportionality
referred to in
Prophet
. To avoid an order
for forfeiture in such cases being arbitrary, and thus
unconstitutional, a court must be satisfied that the deprivation
is
not disproportionate to the ends that the deprivation seeks to
achieve. In making that determination the extent to which the
deprivation is likely to afford a remedy for the ill sought to be
countered, rather than merely being penal, will necessarily come
to
the fore, bearing in mind that the ordinary criminal sanctions are
capable of serving the latter function. For as pointed out
by Ponnan
JA in
Prophet
(an observation that is not incompatible with
the view of the majority):
‘
Courts
should be vigilant to ensure that the statutory provisions in
question are not used
in terrorem
and that there has been no
overreaching and abuse.’
22
[9] In
my view that approach to forfeiture necessarily affects the approach
that a court must adopt when it is called upon to grant
a
preservation order in terms of
s 38.
The only justification for
granting such an order – which is itself incursive, albeit that the
incursion is temporary – is the
expectation that a forfeiture order
will be made in the future. It follows, in my view, that where it is
apparent to a court that
a forfeiture order will not be made, because
it would be unconstitutionally disproportionate to the crime, it will
similarly be unconstitutional
to make a preservation order,
notwithstanding that on the face of its wording
s 38
purports to
oblige it to do so. That is not to say that the NDPP, when applying
for such an order, need satisfy the court that a
forfeiture order
will indeed be made, for there is no such requirement in the Act, but
only that a court is entitled to refuse a
preservation order where it
is apparent from the material that is placed before it by the NDPP –
who is duty-bound, as in the case
of any applicant for an
ex parte
order, to place all material facts known to him before the court
23
– that it would be unconstitutional for a forfeiture order
eventually to be made.
24
[10] It
is in that context that I turn to the question whether the motor
vehicles that are now in issue constitute an ‘instrumentality
of an
offence referred to in Schedule 1 [of the Act]’. There is a
preliminary issue that can be disposed of briefly in the light
of the
comments made earlier relating to the ambit of the Act. A person who
commits either of the offences with which this case is
concerned is
liable to a fine or to imprisonment for a period not exceeding six
years, which, on the face of it, falls within the
terms of item 33 of
Schedule 1.
25
It was submitted on behalf of the respondents that notwithstanding
the clear language of item 33 the offences do not fall within
its
terms because, so it was submitted, that would be out of keeping with
the greater scheme of the Act, which is designed to combat
organised
crime and related evils, and would result in absurdities. Upon a
proper application of the provisions of chapter 6 in the
manner I
have described none of the alleged absurdities need arise. As for
the submission that the inclusion of these offences would
conflict
with the greater scheme of the Act I have already observed, and it
has been so held in
Cook Properties
, that its provisions are
not confined to organised crime. In my view there is no merit in the
submission that the offences now in
issue do not fall within the
clear terms of item 33 of Schedule 1.
[11] Although the term ‘instrumentality of an offence’
is defined in the Act to encompass any property that is ‘concerned
in
the commission or suspected commission of an offence’ it was
held in
Cook Properties
that the connection must be such
‘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 or substantial sense the property must facilitate or make
possible the commission of the offence. As
the term
“instrumentality” itself suggests (albeit that it is defined to
extend beyond its ordinary meaning), the property must
be
instrumental in, and not merely incidental to, the commission of the
offence.’
26
[12] Clearly
the presence of a motor vehicle is indispensable to commission of the
offences with which we are concerned and in that
sense the vehicle
‘makes the commission of the offence possible’. Yet there are
many offences in which property plays a role
indispensable to the
commission of the offence – in some cases it is the subject of the
offence, in other cases it is the necessary
venue at which otherwise
innocent activity becomes criminal – but I do not think that, by
itself, makes it an ‘instrumentality’
of the offence. In my view
the ‘functionality’ that is required by
Cook Properties
brings the term closer to its ordinary meaning, which envisages that
the property is the means, or the tool or instrument, that is
used to
commit the offence.
27
In this regard the court below held that
‘[t]here
is no close and compelling
functional
relation between the
motorcar in question and the commission of the offence . . . [T]here
is nothing in the nature of the motorcars
or the manner of their
utilisation to show that they were employed in some way to make
possible or to facilitate the commission of
the offence of
drunken
driving. The only link is that they were the vehicles being driven
at the time of the commission of the offences, which in my view
makes
them purely incidental to the commission of [the] offences. In each
case the identity of the vehicle is immaterial. The driver
would
still have committed the offence if he had chosen to drive another
motorcar. In the nature of things driving a motor vehicle
is a
necessary incidence of the offence of driving a motor vehicle while
under the influence of liquor.’
28
[13] That
the particular property was not uniquely required for the commission
of the offence does not seem to me to be determinative
of whether it
is an ‘instrumentality’ of an offence. Nor do I think that a
motor vehicle is merely incidental to the commission
of the offences
with which we are concerned.
National Director of Public
Prosecutions v Mohunram,
29
which was decided after the present case was decided by the court
below, concerned premises that were being used, and being permitted
by the owner to be used, as a casino in contravention of the
KwaZulu-Natal Gambling Act 10 of 1996 (which defined a casino to mean
‘any premises upon which . . . gaming machines may be played’).
It was held that
‘use of
premises is of the essence of the crimes as defined. Without use of
premises, there are no crimes . . . It follows, in
my view
ineluctably, that the particular premises were an instrumentality of
the crimes; they were intimately concerned in their
commission.’
30
Responding
to the finding of the High Court that the premises were merely the
venue at which the offences were committed, and that
the gambling
machines, and not the premises, were the ‘means or instruments of
the crime’, the court said the following:
‘This
finding, in my judgment, does not take into account the definitions
of the crimes involved. If the Gambling Act had only provided
for the
criminalisation of the possession or use of gambling machines, the
finding might have had some merit . . .’
[14] In
my view the principle is no different in the present case. A motor
vehicle is not merely the unique venue at which the activity
becomes
criminal, and thus incidental to the commission of the offence, nor
is it merely the subject of a criminalised activity.
The essence of
the offence is the use of the vehicle while the driver is in a
particular state. The vehicle is the very means, or
instrument, that
is used to commit the offences.
[15] In
my view the present case is materially indistinguishable from
Mohunram.
The motor vehicle concerned is indeed an
‘instrumentality’ of the offence of driving under the influence
of intoxicating liquor,
or with excessive alcohol in the driver’s
blood, in contravention, respectively, of s 65(1) and
s 65(2)
of the
National Road Traffic Act 93 of 1996
, and thus liable to be forfeited
under the provisions of chapter 6 of the Act.
[16] That
does not mean to say that the motor vehicles in the present case
indeed fall to be forfeited, or to be made subject to a
preservation
order. Whether such orders are justified in a particular case is a
matter to be weighed in the context of the particular
considerations
outlined earlier. That has yet to occur in the applications that are
the subject of this appeal. Counsel for the
NDPP proposed, in the
circumstances, that we should remit the applications for
reconsideration by the court below, and in my view
that would be
appropriate.
[17] Because this appeal was brought before us as a test
case I think it is just and equitable that each party should pay its
own
costs.
[18] The appeal is upheld. The order made in each of the
applications is set aside. The applications are remitted to the
court below
for reconsideration in the light of our findings.
R.W.
NUGENT
JUDGE
OF APPEAL
CAMERON
JA )
MALAN
AJA ) CONCUR
THERON
AJA )
CACHALIA
AJA )
1
National
Director of Public Prosecutions v Mohamed NO
[2002] ZACC 9
;
2002 (4) SA 843
(CC) para 14;
Prophet v National Director of
Public Prosecutions
2006 (1) SA 38
(SCA) para
37;
Prophet v National Director of Public Prosecutions,
unreported Constitutional Court judgment in Case No CCT 56/05
dated 29 September 2006 para 59.
2
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) SACR 208
(SCA);
2004 (8) BCLR 844
(SCA).
3
Para
65.
4
Which
is prohibited by
s 65(1)
of the
National Road
Traffic Act 93 of 1996
.
5
Which
is prohibited by
s 65(2)
of the
National Road Traffic Act 93 of
1996
.
6
Reported
as
Ex parte National Director of Public Prosecutions
2005 (2)
SACR 198
(SE). The decision was followed in
National Director of
Public Prosecutions v Vermaak,
unreported decision in the
Pretoria High Court Case No 33729/2004.
7
Section
38(1).
8
Section
38(2).
9
">
9
Section
48(1).
10
">
10
Section
50(1).
11
">
11
Section
52.
12
Cook
Properties
, above, para 15.
13
Cook
Properties
, above, paras 15 and
16.
14
First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service; First National Bank of SA Ltd t/a Wesbank
v
Minister of Finance
[2002] ZACC 5
;
2002 (4) SA
768
(CC);
2002 (7) BCLR 702
(CC) para 98.
15
Para
74.
16
2006
(1) SA 38
(SCA) paras 30 and 37.
17
See,
too,
National Director of Public Prosecutions v Mohunram
[2006] ZASCA 12
;
2006
(1) SACR 554
(SCA) para 5.
18
Unreported
judgment referred to in footnote 1 above, para 58.
19
Para
37.
20
Paras
42-47.
21
The
ends that are sought to be achieved by chapter 6 are tabulated in
Cook Properties
at para 18.
22
Para
45.
23
See,
for example,
Cometal-Mometal SARL v Corlana Enterprises (Pty) Ltd
1981 (2) SA 412
(W).
24
Cf.
the comparable approach to be taken when a restraint order is made
under
s 26(3)
in anticipation of a confiscation order being made:
National Director of Public Prosecutions v
Rautenbach
2005 (4) SA 603
(SCA) para 56.
25
‘
Item
33: Any offence the punishment wherefor may be a period of
imprisonment exceeding one year without the option of a fine’.
26
Para
31.
27
The
word ‘instrumentality’ seems to have been imported from the
United States. In English usage (Shorter Oxford Dictionary)
the
word ‘instrumental’ means ‘of the nature of or serving as an
instrument or means’, and ‘instrument’ means ‘1.
A thing
with or through which something is done or effected; a means 2. A
tool, implement, weapon’.
28
Para
7.
29
[2006] ZASCA 12
;
2006
(1) SACR 554
(SCA).
30
Para
4.