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[2013] ZAKZPHC 73
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National Director of Public Prosecutions v Komane and Others (6867/08) [2013] ZAKZPHC 73 (28 August 2013)
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IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE
NO: 6867/08
DATE:
28 AUGUST 2015
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
.........................................
Applicant
And
JOYCE
THEMBELIHLE
KOMANE
............................................................................
1
st
Respondent
GLADYS
MAKHOSAZANA
MAKHAYE
...................................................................
2
nd
Respondent
SIKHUMBUZO
EUGENE
MBATHA
...........................................................................
3
rd
Respondent
ORDER
I
accordingly make the following order:
1. That the
property listed in the Annexure hereto is declared forfeit to the
state in terms of the provisions of Section 50 of
the Prevention of
Organised Crime Act, No. 121 of 1998 (the POCA).
2. That the
curator bonis
appointed by this Court in terms of the
preservation order dated 4 June 2008 continue to act as such with
authority to perform
all the functions specified in the POCA subject
to the provisions of the
Administration of Estates Act, No. 66 of
1965
, and to the supervision of the Master of the High Court.
3. The
curator
bonis
is authorised, as of the date on which the forfeiture order
takes effect to:
3.1
dispose of the property by way of public auction;
3.2
deduct his fees and expenditure which were approved by the Master of
the High Court;
3.3
deposit the balance of the proceeds into the Criminal Assets Recovery
Account, established under
Section 63
of the POCA, with account
number 80303056 held at the South African Reserve Bank, Vermeulen
Street, Pretoria;
3.4
Perform any ancillary acts which, in the opinion of the
curator
bonis
, but subject to any directions of the Criminal Assets
Recovery Committee established under
Section 65
of the POCA, are
necessary.
4. That the
Registrar of this Honourable Court, or the State Attorney
(Kwazulu-Natal) on the request of the Registrar, must publish
a
notice of this order in the Government Gazette as soon as practicable
after the order is made.
5.
That in terms of
Section 50(6)
of the POCA, this forfeiture order
shall not take effect before the period allowed for an application
under
Section 54
of the POCA or an appeal under
Section 55
of the
POCA has expired or before such application is disposed of.
6.
The first, second and third respondents are ordered, jointly and
severally, to pay the applicant’s costs,
including all reserved
costs (if any), such costs to include the costs of two counsel.
ANNEXURE
TO ORDER
1.
Portion 11 of Erf 1187 Pietermaritzburg Registration Division FT in
the Pietermaritzburg/Umsunduzi Transitional
Local Council Area,
Province of KwaZulu-Natal, 1264 square metres in extent, held under
Deed of Transfer No. T17368/2001, physical
address being
33 Carey
Road, Pelham, Pietermaritzburg
.
2.
A Unit consisting of Section No. 11 as shown and more fully described
on Sectional Plan No. SS 392/99 in the
scheme known as Pitlochry in
respect of the land and buildings situate at Pietermaritzburg, the
Pietermaritzburg Local Council
Area, of which section in the floor
area, according to the said plan is 37 square metres in extent, held
under Deed of Transfer
No. ST41026/2001, physical address being
Flat
11 Pitlochry, Commercial Road, Pietermaritzburg
.
3.
A Unit consisting of Section 10 as shown and more fully described on
Sectional Plan No. SS392/99 in the scheme
known as Pitlochry in
respect of the land and building or buildings situate at
Pietermaritzburg, the Pietermaritzburg/Umsunduzi
Transitional Local
Council Area, of which Section the floor area, according to the said
Sectional Plan is 37 square metres in extent,
held by Deed of
Transfer No. ST60551/2000, physical address being
Flat 10
Pitlochry, Commercial Road, Pietermaritzburg
.
4.
Portion 1216 (of 988) of the farm Northdale No. 14914, Registration
Division FT, situate in the Pietermaritzburg/Umsunduzi
Transitional
Local Division Council Area, Province of KwaZulu-Natal in extent of
3989 square metres, held under Deed of Transfer
No. T32775/2001,
physical address being
33 Marion Road, Northdale,
Pietermaritzburg
.
5.
Sub 52 (of 1) of Lot 1777 Pietermaritzburg, situate in the
Pietermaritzburg/Umsunduzi Transitional Local Council
Area,
Administrative District of Natal, Province of KwaZulu-Natal in extent
of 1039 square metres, held under Deed of Transfer
No. T3963/97,
physical address being
17 Huntley Road, Bisley, Pietermaritzburg
.
6.
Motor Vehicle, Audi 500, Registration No. NP58686, Engine No. PR
008323, Chassis No. AAAZZZ44ZKU001891.
JUDGMENT
SEEGOBIN
J:
INTRODUCTION
[1]
This is an application for the forfeiture of certain assets seized by
the applicant under the provisions of the
Prevention of Organised
Crime Act 121 of 1998 (POCA). The statute in question has been
the subject of a number of judgments
by our courts and the legal
principles emanating therefrom are well-settled. This judgment
raises no novel questions of law
but deals essentially with the
application of the Act to the facts as they unfolded in this
application.
[2]
The matter came before me for the hearing of oral evidence on one
issue only and that is ‘whether the
assets seized under the
preservation order are proceeds of unlawful activities contemplated
by
section 50(1)(b)
of the
Prevention of Organised Crime Act&rsquo
;.
[1]
The unlawful activities in this case concern alleged drug
dealing on the part of the first respondent. I heard evidence
on this issue for a total of eleven days during March and October
2012. In all eight witnesses testified on behalf of the
applicant. The evidence of the witness AMOD KHALIL HOOSEN was
formally admitted by the respondents. From the respondents’
side it was only the first and second respondents who testified.
Apart from the
viva
voce
evidence
that was led, the papers in the matter were voluminous comprising
nine lever-arch files. These not only included
the application
papers in this matter but also certain relevant extracts from the
transcript of the criminal trial which was finalized
sometime in July
2009. The criminal trial itself was by all accounts a
protracted one which ran for more than a year before
the Regional
Court, Pietermaritzburg. The present matter was fully argued
before me on 12 and 13 June 2013. The applicant
was represented
by Mr Govindasamy SC, assisted by Ms B Mothilal and the respondents
by Mr SD Slabbert. I am indebted to counsel
for their
assistance in this matter.
[3]
The applicant is the National Director of Public Prosecutions
(NDPP). All of the respondents are natural
persons who are
related to each other: the second respondent is the mother of
the first respondent and the third respondent
is a relative. In
summary, the applicant’s case against the first respondent in
particular is that she was involved
in illegal drug dealing
activities in the Pietermaritzburg area for a number of years.
According to the applicant the assets
referred to above were acquired
by the first respondent from monies she received from such
activities. While some assets
were acquired in her own name
others were acquired and registered in the names of other persons
including the second and third
respondents in order to falsely create
the impression that they do not belong to her. It is to be
noted that the references
to ‘Joyce’ by the witnesses
either in oral testimony or in written statements are in fact a
reference to the first
respondent.
[4]
On 4 June 2008 the applicant obtained a preservation order pursuant
to the provisions of
section 38
of POCA.
[2]
The applicant thereafter applied for a forfeiture order in respect of
the assets forming the subject matter of this hearing
pursuant to the
provisions of section 48 and 50(1)(b) of the Act. This
application was opposed by the respondents and it
is this application
that was referred for the hearing of oral evidence on the issue
referred to above.
SEIZED
ASSETS
[5]
The assets seized under the preservation order comprise five
immovable properties and a motor vehicle.
The immovable
properties are those situated at 33 Carey Road, Pelham,
Pietermaritzburg; Flat 11 Pitlochry, Commercial Road,
Pietermaritzburg;
Flat 10, Pitlochry, Commercial Road,
Pietermaritzburg; 33 Marion Road, Northdale, Pietermaritzburg and 17
Huntley Road, Bisley,
Pietermaritzburg. The motor vehicle in
question is an Audi 500 sedan bearing registration numbers NP58686.
Before dealing
with the evidence of the various witnesses who
testified before me, it is perhaps convenient at this stage to set
out certain background
facts which have a bearing on the issue to be
decided.
RELEVANT
BACKGROUND
[6]
The founding papers on behalf of the applicant were deposed to by
MOHAMBRY MOODLEY (‘Moodley’), a deputy
director of Public
Prosecutions in the employment of the applicant, TREVOR MALCOLM
SUBRAMANIEN (‘Subramanien’), who
was employed as a Senior
Special Investigator by the National Prosecuting Authority in the
office of the Directorate of Special
Operation and ALLAN LENNERT
WILLIAM HORNE (‘Horne’), a Detective Inspector in the
South African Police Service (SAPS),
attached to the Organised Crime
Unit. These affidavits are replete with allegations relating to
drug dealing activities on
the part of the first respondent.
The first respondent has constantly been described as a ‘
kingpin’
of a syndicate conducting drug dealing activities in the
Pietermaritzburg area over many years.
6.1 The following
allegations in this regard are to be found in Moodley’s
affidavit:
‘
8.
UNLAWFUL
ACTIVITIES
With
reference to the evidence contained in Subramanian and Horne’s
respective affidavits I draw to the attention of this
Honourable
Court to the following:
8.1
Joyce had an apparent history of involvement in unlawful activities.
From about 1975
to 1992 she was charged and convicted on 17 occasions
for theft. The said charges related to her involvement in a
series
of shoplifting activities. She served a 4 year
imprisonment term as a result of her involvement in the said
offences;
8.2
investigations indicate that Joyce’s drug dealing activities
date back to the late
1980’s when she started selling drugs on
a small scale. At the time she commenced the said drug dealing
activities
she was not gainfully employed and she did not have a
legitimate source of income. She subsequently established
herself as
the main supplier and distributor of mandrax tablets and
cocaine;
8.3
over the period of her involvement in drug dealing activities Joyce
was the subject of numerous
police investigations and amongst others,
on or about the 24
th
January 1995 she was arrested and
charged for being in possession of 121 mandrax tablets;
8.4
on or about the 19
th
March 2003 she was again identified
as a member of a drug dealing syndicate and she was investigated for
her alleged involvement
in drug dealing activities.
9.
As
will further appear from Subramanian and Horne’s respective
affidavits Joyce’s
modus operandi
was established as
follows:
9.1
she was the syndicate’s kingpin and she supplied and
distributed, on a whole sale
basis, large quantities of drugs to a
network of several drug dealers on a regular and frequent basis and
over an extended period
of time;
9.2
she was the focal point in the distribution and flow of drugs to
several drug dealers that
she supplied with quantities of drugs;
9.3
she had at her disposal large quantities of drugs and she stored and
kept the said drugs
at various locations including her residential
premises;
9.4
she collected, on a regular and frequent basis, large amounts of
monies in cash representing
the proceeds from the sale of drugs from
the several drug dealers that she supplied with drugs;.
10.
10.1
As is further evident from the respective affidavits of Subramanian
and Horne observation duties and
surveillance were conducted at the
various locations and addresses where the drugs were being sold.
Authority for the use
of an undercover Agent was applied for and
obtained in terms of
Section 252A
of the
Criminal Procedure Act 51 of
1977
.
10.2
The involvement of Joyce and the identified drug dealers in drug
dealing activities was confirmed.
In this regard Joyce’s
involvement as the main supplier of drugs to a network of drug
dealers was confirmed. The said
drug dealers and their
respective Runners were observed concluding drug dealing
transactions. The Agent concluded several
drug purchases with
the aforesaid drug dealers.
10.3
The said drugs purchased from, amongst others, Joyce and the
identified drug dealers and or their respective
Runners were sent to
the Forensic Science Laboratory for chemical analysis and they were
confirmed to be prohibited substances
in terms of the Drugs and Drug
Trafficking Act 140 of 1992 (“the Drugs Act”).
Joyce’s involvement in the
delivery of the drugs and collecting
the proceeds from the sale of drugs was also confirmed.
11.
11.1
I submit that findings of the investigations clearly confirm that
Joyce conducted her drug dealing
activities in an apparently
organized and well structured manner and in a repetitive ongoing
basis and as an integral part of a
syndicate.
11.2
Both Subramanian and Horne’s evidence clearly indicate that the
syndicate’s organizational
structure consisted of three levels.
The evidence indicates that there was a visible flow and movement of
drugs from the top level
where Joyce was positioned as the main
supplier to the identified drug dealers at the second level lower
level. The Third
level consisted of several persons that were
employed and or used by the said drug dealers to sell the said drugs
to the public.
(“the Runners”).
11.3
The flow of the proceeds from the sale of the drugs adopted a
bottom-up direction. Upon the selling
of the drugs to members
of the public the Runners would pay up the proceeds from the sale of
drugs to their respective drug dealers.
The said dealers would
in turn pay to Joyce any amounts owing in respect of the drugs
supplied and delivered and further place
more orders for drugs.
I submit that the evidence indicates that from time to time Joyce
collected large amounts of monies
representing the proceeds from the
sale of drugs.’
6.2
Arising out of the investigations conducted against the first
respondent with regard to
drug dealing, Moodley goes on to aver that
the first respondent, having established herself as a drug supplier,
acquired several
assets and proprietary interests including certain
business interests. In this regard the following extracts from
paragraph
15 of his affidavit are relevant:
‘
15.2
At the time she acquired the said assets and proprietary interests
she did not have any legitimate sources
of income to justify the
acquisition of the said assets and proprietary interests.
15.3
Amongst the assets and proprietary interests that she acquired and
established are several immovable
properties, motor vehicles and
certain business interests, namely as a hawker selling meat and
clothing to the public, a Boutique
selling clothing and a coffee
shop. Investigations further revealed she was involved in a
savings club (“stokvel”).’
6.3
After dealing with the investigations concerning the first
respondent’s business and
sources of income, Moodley asserts
the following in sub-paragraphs 27.4 and 27.5 of his affidavit:
‘
27.4
I submit that Joyce conducted a very sustainable and thriving drug
dealing enterprise. My submission
in this regard finds support
in, amongst others, large cash amounts that were generated from the
sale of drugs, the apparent access
of large quantities of drugs and
the large cash amounts that she evidently had access to on a
continuous basis.
27.5
I further submit that a clear pattern has been established wherein
Joyce deliberately acquired and
financed property and registered it
in other persons’ names with the intention of concealing the
identity of the true owner
thereof and the sources of funds used to
acquire the said property.’
6.4
Similar allegations are made by Subramanian in his affidavit albeit
in greater detail and
supported by a number of affidavits from
various people pertaining to alleged drug dealing on the part of the
first respondent
and one Ranjini Chetty. It seems that most of
these affidavits were procured for the criminal prosecution that
eventually
followed. Annexed to Subramanian’s affidavit
are also a number of documents pertaining to the first respondents
alleged
sources of income and her financial position.
6.5
HORNE in his affidavit asserts that his office embarked on an
investigation relating to
certain criminal activities involving the
illegal dealing in narcotics in contravention of the Drugs and Drug
Trafficking Act 140
of 1990 (‘the Drugs Act’). This
investigation was conducted under a project known as ‘Operation
Dixie’.
The main focus of the investigations was on the
drug dealing activities of an identified drug dealing syndicate in
the Pietermaritzburg
area.
6.6
According to Horne the syndicate consisted of a defined
organizational structure apparent
in three levels. At the top
level was the main leader or kingpin who was the main source and
supplier of mandrax tablets
and cocaine. The first respondent
was identified as the syndicate’s leader and main supplier of
drugs. One Ranjini
Chetty was identified, amongst others, as
the first respondent’s close associates and drug dealer
manager. The second
level consisted of several drug dealer
managers whose function it was to manage and oversee the drug dealing
activities from several
identified locations and addresses in and
around the Pietermaritzburg area. These managers were also
responsible for recruiting
and employing persons commonly referred to
as ‘Runners’ who were used to sell drugs to members of
the public.
The ‘Runners’ constituted the third
level in the syndicate’s organizational structure.
6.7
In the course of the investigations by the project, several agents
were used to purchase
drugs mainly from premises belonging to Ranjini
Chetty at 19 and 21 Queen Street, Pietermaritzburg. This is
where the runners
operated from. Affidavits relating to these
purchases are put up from the various agents who were tasked to do
this by the
project.
[7]
The following further background facts appear from the heads of
argument filed on behalf of the respondents.
These facts are
not disputed. On 3 August 2001 the Directorate of Special
Operations (DSO) was authorized to run a project
known as ‘Project
Eagle’ in terms of POCA. The specific focus of these
investigations was on the drug dealing
activities in the
Pietermaritzburg/Midlands area. In due course the project was
authorized to focus on the drug dealing activities
of a specific
dealer namely Ranjini Chetty (to whom reference is made above).
It seems that unbeknown to the DSO the South
African Police Services
(SAPS) were simultaneously investigating the same targets under
‘Operation Dixie’. This
operation commenced in June
2005. The DSO was thereafter authorized by the Directorate of
Public Prosecutions to conduct
a trap in terms of section 252A of the
Criminal Procedure Act 51 of 1977 (CPA). A number of purchases
were made by a DSO
agent who usually dealt with one Lungi Princess
Mchunu, a runner employed by Ranjini Chetty to sell drugs on her
behalf.
It is not disputed that Lungi Mchunu testified in the
criminal trial in terms of section 204 of the CPA.
[8]
On 25 November 2005 Ranjini Chetty, the first respondent and certain
other persons were arrested. The
first respondent was charged
with racketeering as an associate of the enterprise conducted by
Ranjini Chetty from premises situated
at 19 and 21 Queen Street,
Pietermaritzburg. She was also charged with a number of other
drug offences in terms of the Drugs
Act. The first respondent
was subsequently convicted of two counts of dealing in drugs in the
Regional Court, Pietermaritzburg.
She was also convicted of
racketeering as provided for in section 2(1)(e) of POCA. It is
common cause that the first respondent’s
appeal against these
convictions was upheld by a Full Bench of this Court on 12 October
2010.
[9]
Insofar as the present proceedings are concerned it is common cause
that on 25 November 2005 the applicant
made an application in terms
of section 38 of POCA for a preservation order against the property
of Ranjini Chetty. No such
application was brought against the
first respondent at the time. However, such an application was
brought against her on
4 June 2008, about two years and seven months
later. The answering affidavits on behalf of the respondents
were delivered
on 28 October 2008. The replying affidavit of
the applicant was filed on 17 December 2010, more than two years
after the
answering affidavits were filed.
[10]
Against the above background what follows is the oral testimony of
the various witnesses who were called by the
respective parties.
APPLICANT’S
WITNESSES
LUCKY
GORDON (GORDON)
[11]
Gordon testified that he resided at Eastwood from where he operated a
tavern. He admitted making two
written statements
[3]
concerning the first respondent. He is married to one Luthobile
who he met in 1981. Luthobile and the first respondent
were
friends and that is how he came to know the first respondent.
He considered the first respondent to be a trusted friend
of his
wife. His relationship with the first respondent evolved to the
point where they regarded each other as brother and
sister.
[12]
Gordon lost his job in 1987. He started earning a living by
selling liquor. By about 1989 he also started
selling drugs.
This came about when he realized that people in Eastwood were
‘
smoking’
mandrax. His supply of mandrax was
obtained from one Eric Terry from Woodlands. He was unable to
say where Terry obtained
the drugs from. His wife Luthobile was
aware that he was selling mandrax. He emphatically denied that
he obtained any
mandrax from the first respondent. This was
contrary to what he said in his first affidavit to the effect that
his wife was
aware that he was getting mandrax from ‘Joyce’
and that his wife was present when the delivery took place. He
persisted with his earlier testimony that he received his supply of
mandrax from Terry. When it became obvious that the witness
was
recanting on the version contained in his previous statement (TMS4),
Mr Govindasamy applied to have him declared a hostile
witness.
That application was granted. The witness was thereafter
subjected to a full and effective cross-examination
by Mr Govindasamy
on the contents of TMS4.
[13]
When Gordon was taxed on the allegations concerning his acquisition
of drugs from the first respondent, he
first maintained that ‘
they’
,
meaning the investigators for the NDPP, had convinced him that his
statement should be consistent with his wife’s statement
in the
criminal proceedings. He later maintained that the allegations
made by him against the first respondent were merely
made to please
‘
them’
, again referring to the investigators.
He emphatically denied consulting with the applicant’s legal
team on the contents
of his first statement in preparation for giving
evidence in this matter.
[14]
In view of the fact that Gordon’s evidence completely
contradicted his previous statement (TMS4) concerning
his involvement
with the first respondent on the issue of drug dealing, it is
necessary to refer to the relevant portions of that
statement which
read as follows:
‘
4.
In
1987 I became unemployed and began selling alcohol for a living.
Whilst conducting this business from home, I was once
visited by
Joyce who offered to supply me with mandrax to create a market in
Eastwood. She told me that she would give me
the mandrax
tablets on appro and that I could pay her after I sell the mandrax.
As time went on, she increased the supply
of stock. At this
point in time I was the only person selling mandrax in Eastwood and
being the only one in this business
my clientele increased
substantially. In 1992 Luthobile moved in with me and Joyce
continued to deliver mandrax to me personally.
Luthobile was
aware that I was receiving mandrax from Joyce because she was present
when the deliveries took place and when the
money was collected by
Joyce. During this period Joyce was driving a blue Chev sedan.
5.
I
then moved into my current place of residence and my clientele
increased and I began taking larger quantity of mandrax from her.
At times when my mandrax stock was depleted I would go to Joyce’s
house in Sobantu and purchase mandrax stock personally.
6.
Joyce
used to visit my house frequently and Luthobile used to accompany
Joyce to the Northdale to do drug deliveries and collection
of
monies. Luthobile used to tell me that Joyce was controlling
Northdale with the sale of drugs and that she had many Indian
customers who purchased drugs from Joyce. Luthobile also told
me that Asam who lived in Allandale area was one of Joyce’s
biggest customers. Asam was well known to me. On many
occasions, Joyce let mandrax with Luthobile and Asam would collect
it
from us. The other customers that Luthobile also spoke about
were Nades and Hoosen. Hoosen is well known to me as
a drug
dealer. I know Hoosen personally. There were many others
whose names I now cannot recall.
7.
During
the early 1990’s I can recall that I ran out of mandrax stock
and decided to go to Sobantu to purchase mandrax from
Joyce.
After purchasing 50 mandrax tablets from Joyce and whilst walking to
Eastwood the police arrested me in possession
of the mandrax
tablets. I was found guilty and sentenced to a fine of R3000-00
and a five year suspended sentence.
I later established that
Joyce had informed the police that I was in possession of mandrax
tablets. I wish to state that
Joyce personally sold the 50
mandrax tablets to me.
8.
During
the mid 1990’s Joyce opened a boutique opposite Supa Save in
Retief Street. Luthobile’s sister Khando Nxumalo
worked
for Joyce at the Boutique. During this period Luthobile told me
that Joyce was going to India with Asam’s wife.
Prior to
Joyce leaving to India, she visited us at my residence and confirmed
that she was in fact going to India to purchase clothing
stock for
her Boutique. She informed us that she had supplied her
customers with large stock of drugs for the period that
she would be
away and that she had instructed them to drop off the cash with us in
respect of the drugs she supplied to them.
Prior to Joyce
departing to India, she gave me sufficient mandrax stock to carry me
till she returns.
9.
During
the period that Joyce was in India, many of her Indian customers came
to my house and paid Luthobile large sums of money
in my presence.
I can recall some of their names such as Asam, Mananaz, Shanni, Nades
and a short person from Copesville.
I will be able to point out
the other Indian persons who came and gave money to Luthobile.
Whilst Joyce was abroad we kept
in contact telephonically and on her
return she settled our telephone bill. I cannot recall the
telephone number that was
allocated to me at that stage.
10.
When
Joyce returned from India, she came to my house where she and
Luthobile counted all the monies received and Joyce took all
the
cash. I cannot recall the exact amount however I know it was
well over one hundred thousand rand.
11.
After
her return from India, Joyce requested my wife to accompany her to
Cape Town to purchase clothing for the boutique.
When my wife
returned from Cape Town, she informed me that the wife of a policeman
by the name of Dumisani Mhlongo also accompanied
them to Cape Town.
12.
On
three occasions, Joyce came to my house in the company of an Indian
female and told me that this Indian woman is part of her
stokvel.
She introduced this Indian female as Ranjini from Queen Street and
said that she was Hoosen’s wife.
Luthobile told me that
Ranjini was also selling cocaine in Queen Street.
13.
During
September 1997 I won the Natal Lotto to the amount of R1.8 million.
At the time of winning the lotto I owed Joyce R36 000-00
for
drugs which I had short paid her over a period of time. I
settled this amount with Joyce and my wife and I decided to
stop
selling drugs. From hereon we kept away from drugs. Joyce
still visited us and my wife still accompanied Joyce
on her trips.
14.
Sometime
after winning the lotto, Joyce told us that she opened a restaurant
in Witness Lane and she asked by wife to take over
this restaurant
because she did not have the time to oversee it. My wife
started working at the restaurant and during this
period my wife and
I had a personal problem and she moved into 33 Carey Road, Pelham.
This house belonged to Joyce.
I knew that my wife had a problem
with Joyce due to the manner in which Joyce treated Luthobile.
Luthobile then decided to
go to Cape Town. After a few months
we settled our differences and my wife returned home.
15.
I
know that Joyce is married to a person named Mike Komane. I
know that Mike was arrested for armed robberies and served a
lengthy
jail sentence and on his release he opened a garage in Greytown.
I was invited to the official opening of the garage
in Greytown.
This garage closed down after a while and Mike Komane purchased
taxi’s. I do no tknow what his involvement
was in respect
of drugs however I certainly know that Joyce was the main kingpin in
the drug world in Pietermaritzburg.
16.
I
know that Joyce had a Mercedes Benz which was registered in the name
of his cousin, Mrs Cele who is a nurse at Edendale Hospital.’
[15]
Gordon’s second affidavit (TMS23) which was deposed to on 2
April 2006, dealt mainly with his involvement
in a ‘lottery’
or ‘stokvel’, as it is commonly referred to, together
with the first respondent and various
other people. In view of
the fact that nothing really turns on this affidavit, I do not
consider it necessary to set out
the contents herein.
SINDISIWE
MKHATSHWA (MKHATSHWA)
[16]
Mkhatshwa testified that she regarded the first respondent as a
family friend. She met the first respondent through
her sister
who was a friend of the first respondent. In 1996 she was
employed by the first respondent in her boutique initially
earning
R600 per month. This was subsequently increased to R1000 per
month. On 29 March 2006 she deposed to an affidavit
[4]
to the police concerning her employment at the first respondent’s
boutique and about the monthly income generated by this
business at
the time. When she was asked about the amount of money that was
made by this business she indicated that it was
between R10 000
– R15 000
per
week
.
This response contradicted the witness’s affidavit in which she
states that the shop sales averaged about R4 000
per
month
.
As with the witness Gordon, Mr Govindasamy applied to have this
witness declared hostile so that she could be cross-examined
on the
contents of her previous statement. That application was
granted. The witness was thereafter effectively cross-examined
by Mr Govindasamy on the contents of TMS17.
[17]
Mkhatshwa then attempted to explain this apparent contradiction by
saying that the figure of R4 000
referred to by her in her
affidavit was the amount that she was banking and not what the
business was making. To place this
contradiction in perspective
it is perhaps convenient to set out the material portions of her
affidavit. These read as follows:
‘
4.
The
following day I started work and Joyce arrived with the stock.
The stock which was brought in by Joyce comprised of clothing
for men
and women. She offered to pay me a salary of R600-00 a month.
Two months later Joyce increased my salary to
R1000-00, which was
paid to me in cash. At some stages when the shop was in
operation, Joyce did not pay me when I was due
to receive my salary
because she had to pay her overheads such as rent, lights and water.
5.
Most
of the customers purchased clothing on a lay-by basis. There
were very few customers who came in and purchased for cash.
The
lay-by customers would come in on Fridays, on the 15
th
,
25
th
and on the last day of the month to make payment.
Business from Mondays to Thursdays was very quiet. At times I
did
not even have a sale sometime I would only sell one item for the
day. Only on days when customers came in to make their lay-by
payments I would have money as takings for the day. There were
occasions when Joyce took cash from the shop. The shop
sales
averaged about R4000-00 a month.
6.
I
would normally do banking in the middle of the month and at month end
at FNB East Street branch. At times I did not bank
on these
days because there was no money. Joyce used to be in the shop
almost daily for the exception of those days she purchased
stock.
I know that Joyce went to Durban, Cape Town and Johannesburg to
purchase stock. Joyce was always in the company
of my sister,
Thobile.
7.
On
a monthly basis I would pay the rent to an attorney in Longmarket
Street. I would take money from the shop to pay rent
and if
there was no money in the shop, Joyce would give it to me. I
cannot recall the amount I paid monthly as rent.
8.
In
December 2000 I went on leave and when I returned I found that the
shop closed down. Joyce told me that she moved the stock
to the
restaurant she opened. I have been unemployed since then.
9.
In
1996 my sister’s husband, Lucky Gordon was arrested for being
in possession of mandrax. Thobile told me that Joyce
sold the
mandrax to Lucky. This is the first time that I came to know
that Joyce was dealing in drugs.’
GONASEELAN
CHETTY (CHETTY)
[18]
Chetty is a 34 year old male who currently resides at
Northdale, Pietermaritzburg. He is the brother of Ranjini
Chetty. As I have already mentioned Ranjini and the first respondent
were charged in the Regional court, Pietermaritzburg, together
with
certain other persons for dealing in drugs and other related
offences. Ranjini was convicted and is presently serving
a ten
year jail sentence.
[19]
Chetty had testified in the criminal proceedings. His evidence
before me can be summarized as follows:
When he was about 17
years old and whilst employed in a shoe factory, he started assisting
his sister, Ranjini, by driving her
to pick up mandrax from her
suppliers. He thereafter started selling drugs for her at her
premises at 19 and 21 Queen Street,
Pietermaritzburg. It was
while working for his sister that he met the first respondent. He
went to her house on several occasions
from the early 1990’s up
to approximately 2000. He accompanied Ranjini to the first
respondent’s home at Sobantu
from where Ranjini used to collect
drugs. On this occasion which seems to be the first occasion,
Ranjini entered the house
and when she emerged she was in the company
of the first respondent. Ranjini told him to remember ‘this
house’
as he would be required to collect drugs from there in
the future. Ranjini then handed the mandrax tablets or
‘buttons’
as it was commonly referred to over to him and
told him that if the police came he should throw the tablets out of
the vehicle.
He estimated the number of tablets to be in the
region of 50-100 at the time.
[20]
On another occasion he went to the first respondent’s house by
himself. On this occasion the
first respondent handed him a
packet of mandrax which she retrieved from under her pillow in her
bedroom. On this occasion
as well the tablets were in the
region of 50-100. He testified that there were also times when
he took his nephews as well
as one Bradwin Surdat, Ebrahim Mohammed
and Joe Maharaj to the first respondent’s house to collect
mandrax. On one
occasion he even took his neighbour, Nicolene
Marion, who started working for Rajini, to collect drugs from the
first respondent’s
house. Again the drugs amounted to
between 50-100 and were contained in a plastic bank packet.
[21]
Chetty testified that the first respondent and his sister were ‘good
friends’. Whilst selling
drugs at Ranjini’s house
over a period of approximately ten years, he frequently saw the first
respondent there. He
estimated that she would be at his
sister’s house at least twice or thrice per week. On such
visits the first respondent
would remove the drugs from her bag and
hand these over to his sister. His sister in turn would hand
the drugs over to him
to hide them at the back of the house. He
mentioned earlier that one of the places where the drugs would be
hidden was in
the drain pipes. According to him each tablet had
a street value of R20-R25.
[22]
Under cross-examination by Mr Slabbert, Chetty initially refuted any
suggestion that the only reason why he made
a statement to the police
was because he was allegedly threatened with arrest. However, when he
was referred to the record of the
criminal case he conceded this to
be the position. Chetty was also questioned on whether it was only
mandrax that he saw being
handed over by the first respondent to his
sister at the latter’s house at Queen Street. His response was
that he later also
observed cocaine or ‘hard rock’ being
handed over. He was hard-pressed to concede that he had never
informed counsel
acting for the applicant about this. It was further
suggested to the witness that he had falsely implicated certain other
people
who were not involved in drug dealing activities. He attempted
to explain that there were occasions when his sister obtained drugs
from her ex-husband Hoosen who initially got her involved in selling
drugs.
JULIANA SONIA
POLE (POLE)
[23]
The witness testified that during 1996 she was the owner of the
property situated at 17 Huntley Road, Bisley,
Pietermaritzburg. She
placed her house on the market for the sum of R180 000. She
first met the first respondent when the
estate agent brought her to
view the house. The first respondent informed her that she wanted to
buy this house for her mother
and that she had just bought her own
house in Montrose. The purchase price was not discussed at this
initial meeting. Later, however,
the estate agent returned with an
offer of R160 000 which she accepted.
[24]
Pole testified that the first respondent returned one evening in the
company of a friend. The first respondent
informed her that she liked
the curtains in the house. Pole told her that she could have them for
R6000. The first respondent agreed
to purchase the curtains for
R6000. The following night the first respondent came and paid her
R6000 in cash. Pole remembered that
the person who accompanied the
first respondent was a young woman. She also remembered that when the
first respondent came on the
first occasion, the first respondent was
driving a BMW motor vehicle whereas when she came to purchase the
curtains with her friend,
she was now driving a Mercedes Benz motor
vehicle. This prompted Pole to remark that the first respondent has
‘smart cars’
to which the first respondent said that her
BMW had gone for a service. Pole confirmed making a sworn
statement
[5]
regarding the sale
of her house to the first respondent. While under cross-examination
she indicated that she did not see who had
signed the offer to
purchase, she remained adamant that it was the first respondent who
had purchased the property. She further
reiterated that it was the
first respondent who had purchased the curtains and collected certain
building plans from her.
AMOD KHALIL
HOOSEN
[25]
As I indicated at the outset of this judgment the respondents
admitted this witness’s evidence as contained
in a summary
which was delivered by the applicant in terms of Rule 36(9)(b)
[6]
of the Uniform Rules. Just for completeness, however, I point out
that the witness is a Colonel in the SAPS attached to the Organised
Crime Unit, KwaZulu-Natal. Apart from his various other duties, he
was also the Section Commander: Narcotics Investigations. As
far as
the relevance of his evidence is concerned, he was instructed by the
offices of the State Attorney KwaZulu-Natal acting
on behalf of the
NDPP to furnish an opinion on whether the drugs described by the
various deponents to affidavits in this matter
as well as by
witnesses in the criminal proceedings in which the first respondent
was charged with dealing in drugs, are in all
probability mandrax
tablets. From his many years of working and investigating drug
related matters, attending a number of national
and international
workshops, conferences and training both on organised crime and drug
investigation, the witness opined (for the
reasons set out in his
summary) that when the various witnesses referred to different street
names of drugs during their involvement
in drug dealing activities
with Ranjini Chetty and/or the first respondent, their description of
the drugs was consistent with
the description of mandrax tablets.
ADMISSION BY THE
RESPONDENTS
[26]
On behalf of the respondents it was admitted that the documents
appearing as item 25 in the applicant’s
bundle evidences proof
of the application made by the second respondent to the Department of
Social Security for a social grant
on 3 March 1998.
LEONARD NGCOBO
(NGCOBO)
[27]
The facts to which this witness was to testify as set out in the
summary
[7]
of his evidence were
not disputed by the respondents. In 2006 the witness was the
Human Resource Administrator of BNS Medical
which was previously
known as Smith & Nephew. In his capacity as Administrator he had
access to all files of the employees
of Smith & Nephew. According
to the records available to the witness the deceased ‘T.G.
Mngadi’ with identity number
560421 0808 089 was employed at
Smith & Nephew from July 1983 until her death in December 2001.
At the time of her death the
deceased earned R526.89 after
deductions. A trust fund was created after her death from the
proceeds of her provident fund in the
sum of R88 259.39. The
interest from the trust fund was paid to the deceased’s sister
Nonhlanhla Claudia Cele who was
the guardian of the deceased’s
daughter Lindiwe Mngadi. During her lifetime the deceased had not
taken any loans against
the proceeds from the provident fund.
[28]
Question by Mr Slabbert the witness agreed that there was nothing in
his file to indicate whether the deceased
had owned a flat in
Pietermaritzburg. The witness was asked to confirm whether the
signature that appeared on a copy of the Last
Will and Testament of
Thembisile Gladys Mngadi was in fact her signature. The witness
compared the signature appearing on this
document with the other
documents in his possession and confirmed that it was her signature.
DUMISANI JEREMIA
ZONDI (ZONDI)
[29]
The witness is a colonel in the SAPS. He was a member of a task team
involved in investigating the first
respondent and others with regard
to drug dealing activities. In view of the fact that this was a
fairly large task team, certain
investigators were given specific
mandates on what they were required to do. The witness was
responsible for obtaining statements
from one Emmerentia Busaphi
Mngadi, Nonhlanhla Claudia Cele, Skumbuso Eugene Mbatha and Sindisiwe
Mkhatshwa. He was also responsible
for making photocopies of the
original statements. In preparing for this matter he was required to
locate the original documents,
but he was unable to locate all of
them. When this witness’s evidence was being led, Mr Slabbert
indicated that the respondents’
were admitting the summary of
the witness’s evidence as set out in paragraphs 1.4–1.14.
[8]
[30]
In the course of the investigations it emerged that a flat viz Flat
no. 10 Pitlochry had been bequeathed
by the deceased Thembizile
Gladys Mngadi (Mngadi) to the first respondent. There was also a
motor vehicle viz a Mercedes Benz which
although registered in the
name Nonhlanhla Claudia Cele, was being used by the first respondent.
It thus became necessary for the
witness to obtain statements in
order to verify the information obtained. There was no dispute that
Nonhlanhla Claudia Cele is
the daughter of Emmerentia Mngadi who in
turn was the sister of the deceased Thembisile Gladys Mngadi. There
was no dispute that
Emmerentia Mngadi herself is now deceased. The
deceased Thembisile Gladys Mngadi was employed by Smith & Nephew.
The issue
of the flat was discovered by Thembisile Emmerentia Mngadi
when she and/or her sister went to Smith & Nephew to make
enquiries
about the deceased’s deductions.
[31]
This information led Colonel Zondi to record a statement from
Emmerentia Mngadi.
[9]
Since
there was no dispute regarding the contents of this statement it was
merely read into the record. The statement reads as
follows:
‘
3.
My
deceased daughter Gladys Thembisile Mngadi have always resided with
me as she did not get married but she did have her children
who also
resided with us. My late daughter had a son Xolani Mngadi who is ±
25 years old and a young daughter Malon Mngadi
and she is 11 years
old. Deceased Gladys Thembisile Mngadi. Deceased got sick for one
week and the second week she was hospitalized
at the Midlands
Hospital where she later died and I cannot remember the date she
passed away.
4.
Deceased
was employed at Smith & Nephew in Pinetown and rented a room in
Clermont. I cannot recall the years of employment.
I have never
visited deceased at her work place.
5.
I
also know that deceased had bought the building material to build a
house in Clermont where they were given sites for free. The
house is
still incomplete but most of it is the roof. I cannot also mention
the expenses involved in the buying of the material.
Deceased stated
that this house need not to be sold for the sake of her two
dependants. The family must complete structure and
roof and rent the
house out to the people and thereafter collect rent for the
dependants to survive. My daughter are planning to
complete the house
and when complete it will be rented out. I had never heard of any
other properties elsewhere because if she
did have I was the first
person to know because as by now I would have at least sold some of
the property to maintain her dependants
other than using my pension
money and the least money that is the grant money from Smith &
Nephew for the younger dependant
and I have nominated my other
daughter to collect such grant. Other then that I receive no any
other income. I recall that my deceased
daughter was so excited when
she managed to pay R2000-00 for the foundation and come to Impolweni
to show me the receipt and plan
of the foundation saying it would be
the first time that she occupy the property of her own and I so
delighted to see that and
died before her dreams could come true…
6.
About
the flat Investigator Zondi explains to me becomes a surprise that it
is for the first time I hear about this from the time
Investigator
Zondi called at Impolweni explaining their investigation to me. I
have also sincere concern that some other information
may arise
because as from then the family has become too suspicious even of
more items hidden that they don’t know of and
I myself wish
that all this to be solved by the law because I am the only one to
explain how Joyce came on board to issues of my
wedlock family. The
friendship with Joyce Majola and my children is because of me as her
aunt but I am hearing nothing from her
and no close visits and
talking with me. I have also not knew of anything that had been
involved with her of such nature even when
my brother was alive. That
is all I can say in this matter. I know and understand the contents
of this statement. I have no objections
to taking the prescribed. I
consider the prescribed oath to be binding on my conscience.’
[32]
The next statement
[10]
which
the witness was responsible for taking was that of Sikhumbuzo Eugene
Mbatha who is the third respondent in these proceedings.
Mr Slabbert
indicated that the third respondent would not be testifying. He
pointed out that the third respondent had filed an
opposing affidavit
in the forfeiture application. There was no dispute regarding what
the witness had recorded from the third respondent.
The contents of
that statement read as follows:
‘
2.
I
know Joyce Komane as she is the daughter of my step-sister Gladys
Makhaye. Joyce Komane was only introduced to me by her mother
during
the year 1991. Prior to this I did not know Joyce however after the
introduction I seldom met with Joyce.
3.
During
the year 2000 I was a member of a stokvel scheme of which Joyce
Komane was a member. I only contributed once towards the
stokvel and
Joyce Komane informed me that she will continue payments thereafter
on my behalf. When the stokvel money was due to
me, Joyce informed me
that she has an investment form me. I enquired as to what type of
investment it was and she told me that
there was a house in Northdale
that was for sale and it was reasonably priced at R30 000-00.
She took me to this house and
I told Joyce that I was interested in
purchasing it. Joyce took the stokvel money in the amount of
R20 000-00 that was due
to me and paid a deposit for this house.
She told me that she would borrow that balance of the money from her
friends and would
settle the total purchase price. I signed documents
with an attorney and the house was registered in my name. Joyce told
me that
she would collect the rent of R600 a month and repay her
friends. I know for the fact that the house in question was rented
out
to tenants as from the date I purchased the house.
4.
For
the past six year, I did not receive any income from the house. Joyce
has been collecting the rental from the tenants. All correspondence
in respect of this premise was directed to Joyce’s mother’s
house at 448 Kwezi Street, Sobantu.
5.
As
I mentioned in paragraph 3, Joyce paid the stokvel on my behalf and
when the money was due, she collected it and paid the deposit
for the
house. Since the purchase of this house I have not received any
income from the rental of the house nor have I been responsible
for
the rates and general maintenance of the house.
6.
From
the manner in which the entire deal was conducted and the manner in
which she has taken control of the premises I feel that
Joyce merely
used my name and her scheme to acquire this property for herself.’
[33]
Colonel Zondi explained that although he interviewed the deponent, it
was Colonel Herbst who typed the statement
as he was fast at typing.
There was no dispute that the third respondent had testified in the
criminal trial.
[34]
The next statement recorded by the witness was from the witness
Sindisiwe Mkhatshwa
who already testified (see paragraph 16
supra). I have already dealt with the contents of her statement
above. Colonel Zondi confirmed
that he recorded her statement as it
was given to him. If the witness had told him that the average sales
for the boutique were
between R10000 – R15000 per week, he
would have recorded it as such. This is not what she told him.
[35]
Under cross-examination the witness maintained that he was not tasked
to investigate whether the first respondent
had owned a butchery or a
boutique. He was unaware that the first respondent and her husband,
Mike Komane, had a butchery at Chesterville.
He was also unaware that
they owned a Caltex garage at Greytown. He was unable to say whether
anyone else from the task team had
investigated these businesses. The
witness emphatically denied that the purpose for which the statements
were required was to assist
the applicant in the asset forfeiture
application. The effect of his evidence was that the task team was
merely following up on
information as and when such information was
received concerning the first respondent.
XOLANI NGCOBO
(NGCOBO)
[36]
The applicant intended calling this witness merely to confirm that a
consultation did in fact take place
between the witness Lucky Gordon
and counsel for the applicant. Mr Slabbert, however, indicated that
the respondents would accept
that such a consultation took place.
QUINTON VAN DER
HOOGEN
[37]
He was a member of the Pietermaritzburg Organised Crime Unit. On 25
November 2005 he was part of a group
that was required to execute a
search warrant at the premises of the first respondent which they
mistakenly believed was Flat 11
Pitlochry. Flat 11 was one of several
flats in one block. As the main gate to the block was closed they
jumped over the gate. They
quickly established that Flat 11 was in
fact occupied by an elderly white male and that the first respondent
actually lived at
Flat 10.
[38]
While here they noticed a black male whom they later identified as
Sihle Petro Ndlovu exit through the main
gate. The witness, realising
that Ndlovu was in possession of a remote control device, pursued and
confronted him. Ndlovu was in
possession of a bunch of keys and a key
to Flat 10 as well as a remote control device. Ndlovu explained that
his uncle Wiseman
Bayeni who occupied Flat 10 had given him the keys
and remote.
[39]
Acting under powers vested in him in terms of section 11 of the Drugs
and Trafficking Act 140 of 1992, the
witness decided to search Flat
10. Before he could enter Flat 10, however, he received a call to the
effect that the first respondent
had been arrested and was being
brought to the flat. He was requested to wait until the first
respondent arrived. When the first
respondent arrived permission was
sought from her to search the flat. The first respondent flatly
refused to consent saying that
she wanted nothing to do with the
search as she knew that drugs would be found in the flat because the
police were trying to frame
her. The first respondent put up what the
witness described as a ‘charade’. When the witness and
his colleague Allan
Nixon searched the flat they found approximately
10 000 mandrax tablets hidden in various places in the flat.
[40]
The cross-examination of this witness was uneventful. The witness
confirmed that only Ndlovu had been arrested
in connection with these
drugs.
AKBAR ALLY (ALLY)
[41]
This witness is an accountant by profession. He was mandated to
provide the NDPP with an opinion relating
to the first respondent’s
financial position and to consider whether the monies used by her to
acquire certain immovable
properties could reasonably be justified
from the sources of income alleged by her. He was also required to
provide an opinion
on the second respondent’s financial
position. Before proceeding to summarise the witness’s evidence
and the conclusions
drawn by him in relation to the first
respondent’s financial position, it is perhaps convenient to
contextualize the manner
in which the first respondent’s
financials were dealt with in the criminal trial and in the pleadings
in this matter.
[42]
In the founding papers in this application, Senior Special
Investigator Subramanien averred that during the
search and seizure
operation at the first respondent’s residence at 17 Huntley
Road, Pietermaritzburg, amongst the various
documents that were
seized were documents that purported to be Annual Financial
Statements
[11]
in respect of a
coffee shop at No.6 Witness Lane and a boutique at No.170 Retief
Street. These documents reflected the financial
position of the
two businesses as at 30 November 2000. The documents comprised
(a) a report by the bookkeeper declaring that
the financial
statements fairly represented the respective business concerns’
financial positions, (b) a statement of income
and expenditure and
(c) a balance sheet and an estimated budget for the year ending 31
December 2001. The documents reflected
the first respondent as
being the sole proprietor of these businesses and thus her financial
position.
[43]
Subramanien goes on to aver that the income and expenditure statement
records that for the 12 month period
of 1999 the total income
generated from both the coffee shop and the boutique was given as
R517 200. After deductions
of the operating expenses the
income before tax was R180 150 for the 11 month period beginning
1 January 2000 to 30 November
2000. The income generated
from both the coffee shop and the boutique was given as R510 400.
After deducting
the operating expenses the income before tax was
given as R196 748. The balance sheet reflects the net
current assets
in the amount of R389 642 as at 30 November
2000. The stock on hand from the coffee shop for the period is
given as
R28 000 and the value of the equipment is stated to be
R66 000. These financial statements were signed by the
first
respondent and one A.L. Nel who attested to the fact that the
statements fairly reflect the respective businesses’ financial
position as at 30 November 2000. He further declared that the
business operations were in accordance with the Generally Accepted
Accounting Practices (GAAP).
[44]
Subramanien avers that the picture portrayed from these statements is
that of two profitable enterprises
that were in a significantly good
financial position and which consequently depict the first respondent
to be in a financially
profitable position in relation to these
businesses. Subramanien states that in the course of his
investigations he identified
the said ‘AL Nel’ to be
Arnold Nel (Nel) who was employed as a property consultant at Natal
Property Consultants in
Pietermaritzburg. Nel disclosed that he
had several dealings with the first respondent regarding the purchase
of certain
immovable property. He also disclosed that he had
prepared the financial statements for the first respondent in order
to
assist her to obtain a bond over the property at 33 Carey Road,
Pietermaritzburg. Nel compiled the financial statements based
on information provided by the first respondent without any
documentary proof of the information provided by
her.
[12]
[45]
It is common cause that Nel testified in the criminal trial on behalf
of the State. The relevant portions
of Nel’s evidence in the
criminal trial
[13]
which have
bearing on the issue in this matter and Ally’s findings in
respect thereof read as follows:
‘
Is
it so that in November 2000 she came to see you yet again?
Yes
that is correct. She came to see me because she was interested in
something for a Bed & Breakfast. I said I will try to
see what I
got and I think in about 10 days or so a property came in at 33 Carey
Road.
The
deal would be R210 000,00 a R30 000,00 deposit and the
balance on a bond. I think the initial bond was declined and
then it
was approved by another bank, if my memory serves me correct.
Is
it so that during this time you were then required to assist her with
drawing up documents relating to her finances to help with
her bond
application? For a bond on R190 000,00 the bank wanted financial
statements and so I sat with her in my office, drawing
up some
figures. I asked her about her business, one was a coffee shop cum
sports bar and the other was a ladies boutique. I sat
with her,
asking her some figures about the sports bar, what was the income of
the sports bar and what was the sales in the sense
of food. The
coffee shop, what was the liquor sales and at the end of the day it
was working out it was a very profitable coffee
shop. My figures
showed me that she was probably getting out R10 000,00 a month
from the coffee shop, which was a very profitable
little business.
Did
she actually produce any slips to you?
No,
we just sat and drew it up. I recall I did go and visit the coffee
shop once and it was a very busy place.
And
the boutique, how was that going?
Fairly
well if you look at the position, it was downtown. It was not doing
as well as the coffee shop/sports bar. I think R6 000,00
profit
that she was making there. The two businesses were making a good
income for her.
Then
the issue of the financials is dealt further on page 1062, the
prosecutor raises the question: Now the handwritten figures
on the
top copy, is that just the figures you wrote down while you were
talking to her?
Yes,
as I was just writing and looking at purchases where they were coming
from, like Macro, Kismet, just roughly food …
[inaudible]
salaries, DSTV and transport. Having a bit of financial background
from working in the bank, I knew what the bank would
need to get the
bond approved. I looked at it basically if you are running a coffee
shop type thing, what you should be spending
money on. I looked at
the assets and the stock, the value of the equipment, fridges, stoves
and bar counter. We worked out basically
what was her income and
expenditure and what the net profit should be in that type of
business.
Then
the next significant part of that is on the following page 1063: Now
which year was that done for?
Taking
the handwritten figures, which was done in 2000, we did the 11 months
of 2000 and we then just in a sense unfortunately
fabricated
figures for 1999. Joyce did not have the figures for the past and so
we just
fabricated
just to show the bank that this business is
a lucrative business to get the finance. That was just to help the
bank to convince
the bank, to show them that you know if she was to
do a Bed & Breakfast, because we show the coffee bar, Joyce’s
boutique
and then Joyce’s Bed and Breakfast and what the income
would be on a monthly basis as against an annual basis.’ (my
emphasis)
[46]
In her response to the allegation concerning the financial statements
prepared by Nel, the
first respondent, stated in the criminal
trial that she did not realize that he was fabricating figures and
that she only heard
of this in that court.
[47]
With the above background in mind I revert to the testimony of Ally
before me. This evidence should
be read in conjunction with the
expert summary filed by the applicant in terms of rule 36(9)(b).
[14]
I first deal with his findings and opinions regarding the assets
acquired by the first respondent. In providing his
opinion Ally
had regard to the application papers filed in this matter together
with annexures, the relevant portions of the criminal
record when the
first respondent was tried in the regional court for dealing in
drugs, information gleaned from certain specific
documents as well as
from information obtained from consultations with the applicant’s
legal team.
[47.1]
The immovable properties which were required to be considered were
those situated at 33 Carey Road, Pelham
and Flat 11 Pitlochry, Loop
Street, Pietermaritzburg.
[47.2]
The alleged sources of income according to the first respondent
[15]
were the following:
INFORMAL
TRADING
The first
respondent alleged that during the early 1980’s she and her
husband sold meat as street vendors and that they jointly
generated a
turnover of approximately R6000 per week. She also claimed to
have sold clothing on an informal basis.
JOYCE’S
BOUTIQUE
The first
respondent alleged that in 1996 she commenced the business of
‘Joyce’s Boutique’. This business
was closed
in December 1999. She thereafter re-opened the business at 7
Witness Lane, Pietermaritzburg, in 2000.
COFFEE
SHOP
The first
respondent commenced the business of a coffee shop at 6 Witness Lane,
Pietermaritzburg, during 2000. The coffee
shop closed in
October 2004 as the lease was terminated.
OTHER
ALLGED SOURCES OF INCOME
GARAGE
According to the
first respondent, she and her husband, Mike Komane (now deceased),
operated a garage in Greytown. This garage
was allegedly sold
for R200 000 and she received the sum of R100 000 as her half
share. She claimed to have utilised
R30 000 from this
amount to pay a deposit on the purchase price for the property at 33
Carey Road, Pietermaritzburg.
Although she alleged that she
owned butcheries in Pietermaritzburg and Chesterville, no information
was provided by her regarding
the income from these businesses.
[47.3]
As corroboration for the first respondent’s allegations
relating to their sources of income, Ally
had regard to the
financials prepared by Nel and which were signed by the first
respondent during 2000. These reflect that
she had a net profit
of approximately R16 000 per month when she purchased the
property at Carey Road. According to
a letter drawn by Nel
dated 20 December 2000 he states that the first respondent was
drawing an average of R10 000 per month
from both the coffee
shop and Joyce’s Boutique. This was the letter that was
used in support of an application for
a mortgage bond in respect of
the Carey Road property. Ally observed, however, that Nel
claims to have fabricated the financials
for the purpose of ensuring
that the first respondent had sufficient income to qualify for the
bond.
[47.4]
With regard to the coffee shop, a statement obtained from Irshad
Edris, the landlord of the premises, confirms
that a lease agreement
was concluded with the first respondent on 10 January 2000. The
first respondent herself confirms
in her opposing affidavit that she
commenced the coffee shop business in 2000. Accordingly no
income could have been generated
from the coffee shop in 1999.
In the result Ally found that the financial statements reflecting an
income of R361 200
cannot be correct. Consequently the
only income for 1999 would have been derived from the boutique.
Although Ally considered
the expenses attached to the coffee shop, he
cautioned that these were based on fabricated figures as evidenced by
Nel’s
testimony in the criminal trial.
[47.5]
Ally’s first exercise was to exclude the income and expenditure
in respect of the 1999 year.
The amount that was excluded was
the sum of R361 200. The next step was to exclude the
expenditure relating to the coffee
shop in the sum of R206 063.
This amount was based on all the expenses directly related to the
coffee shop as given
by Nel in the financial statements. From
the total expense of R328 050, the sum of R206 063 was
excluded leaving
an amount of R121 987 which was then apportioned as
expenses for the boutique. This theoretically left a net income
of R34 013
(i.e. R156 000 for 1999 less R121 980).
Utilising the figure of R40 000 per month mentioned by the
witness
Mkhatshwa in her affidavit the approximate turnover of the
boutique would have been between R48 000 and R50 000 per
annum.
When the expenses of R121 987 are deducted, the
first respondent would have incurred a loss of approximately
R71 987.
[47.5]
From bank statements obtained by the applicant from First National
Bank in respect of the boutique, Ally
determined that the only
amounts deposited were the following: R9 040 for the year ending
December 1998; R7 820 for the year ending
December 1999; R11 621.32
for the year ending December 2000 and R1 300 for the year ending
November 2001. The total
amount deposited was the sum of
R29 781.32. He also determined that on at least five
occasions debit orders were not
honoured because of insufficient
funds.
[47.6]
For the year 2000, Ally determined that the coffee shop would have
generated a net profit of R150 074.
However, this was
based on Nel’s letter to the effect that the first respondent
was drawing R10 000 per month from both
the coffee shop and the
boutique. The witness accordingly refused to accept the profit
of R150 074 as being realistic
in the circumstances. On
the assumption, however, that the coffee shop was more profitable he
allocated 60 % of the profit
to the coffee shop. Accordingly in
his view the coffee shop would not have generated more than R72 000
per annum.
[47.7]
On the figure provided by Mkhatshwa, Ally concluded that the boutique
would have sustained a loss of approximately
R72 000 at the end
of 1999. According to the witness even if the increased
purchase price for stock for the boutique
meant an increased volume
of stock, such increase would have to be limited to stock to the
value of R5 500. In these
circumstances, according to
Ally, it is highly improbable that the first respondent could have
altered her net loss of approximately
R72 000 to a net profit of
approximately R46 675 estimated as follows:
1)
Income before tax per financial statements
196 748
2)
Less Nett income attributable to the coffee shop
150 074
3)
Nett income attributable to the boutique
46 675
[47.8]
Ally estimated the reasonable living expenses of the first respondent
in 2000 to be R66 858
In addition, the first respondent
claimed to have participated in a ‘stokvel’ to
which she contributed R1000
per week. Her expense for the
eleven month period would have increased by approximately R44 000
resulting in total expenses
of R110 858. Other payments
made by the first respondent in 2000 were made up of the following:
R6 000 as instalments
(R1500 x 4) in respect of Flat 11; R7 000 as a
deposit in respect of flat 11; R6 000 as a deposit (given as a loan
to Mngadi) for
flat 10; R15 000 for furniture and R5 000 for
jewelry. The total of these amounted to R39 000.
Accordingly
her total expenditure for the year would have been
approximately R 149 858 made up as follows: living
expenses
(R66 858); stokvel (R44 000) and other expenses
(R39 000). Her income would have been approximately
R118 000
based on the R72 000 from the coffee shop and
R46 000 from the boutique. Based on the above
analysis the
first respondent would have made payments of at least
R31 858 in excess of what was available to her.
[47.9]
Dealing with the first respondent’s income in 2001, Ally noted
that there was no independent verification in
respect of such
income. The bank statement for Joyce’s Boutique reflects
only one deposit of R1 300 in 2001.
Based on the income of
R118 000 in 2000 Ally estimated that this would have increased
by 10% giving an estimate income for
2001 of R129 800. He
also estimated that her living expenses of R66 858 would have
increased by 10% from 2000 to
R73 543. Her other payments
during 2001 were in respect of the following: R9 000,00
for installments in respect
of Pitlochry, R1 260 in respect of
the bond for Pitlochry; R3 000 as a deposit for Carey Road,
R20 000 as installments
for Carey Road; and R14 000 in
respect of transfer costs for Carey Road. The total expenses
were R74 260.
The first respondent’s total expenses
for 2001 amounted to R147 803 made up of living expenses
(R73 543) and other
expenses (R74 260). Based on this
analysis, Ally calculated that the first respondent made payments of
at least R18 003
in excess of what might have been available to
her.
[48]
Having performed the above exercises and analysis, based on the
limited information provided
by the first respondent, Ally concluded
that the first respondent would not have been able to pay for the
Carey Road property or
the bond instalments for that property and 11
Pitlochry Road, based on her alleged legitimate sources of income
that might have
been derived from the coffee shop and boutique
businesses.
[49]
The next issue which Ally was required to consider was whether the
second respondent (first respondent’s
mother) could reasonably
have afforded to purchase the property at 17 Huntley Road,
Pietermaritzburg, from her own source of income.
The following
factors were considered:
[49.1]
In an application for a bond to finance the purchase of the property
in 1996, the second respondent stated
that she received an income of
R7 500 per month as a self-employed hawker. She also
claimed to have two investments
at Nedbank in the amounts of R20 940
and R37 857 respectively and a savings account in the sum of
R20 000.
[16]
The
second respondent had signed an affidavit
[17]
on 13 March 1999 when she applied for a social grant. In this
affidavit she declared
inter
alia
(a) that she was employed by a Mr Antel from 1982 until 1992; (b)
that she earned no formal income as at March 1999; (c) that she
regarded herself as unemployed and supported herself by selling meat
from which she earned R50 per week; and (d) that her late
husband
last worked in 1976 and thereafter he received a disability grant.
[49.2]
Having regard to her income as disclosed in the affidavit referred to
above, Ally expressed the view that
if indeed there were investments
and a saving account as stated in her bond application these
investments and savings could not
have been funded from any source of
employment described by her. He was unable to find any
documentary evidence substantiating
any benefit allegedly received
from the second respondent’s former employer. Having
regard to the second respondent’s
late husband’s
employment history as set out in the affidavit, it appeared highly
unlikely that an amount of R20 000
was available to pay as a
deposit for a property in 1996.
[49.3]
Ally thereafter had regard to the Nedbank loan account statements.
From these statements it appeared
that the initial instalments (March
and April 1997) were in the form of debit orders and were paid from
her bank account.
These were the only two payments paid via
debit order.
[18]
The
following amounts totaling R76 969.23 were paid by cheques and
transfers from investments. These payments
were made on the
following dates:
[19]
R17 000 on 9 April 1997, R37 587.46 on 10 April 1997,
R22 136.15 on 12 April 1997 and R24 562 on 12 April
1997.
It is interesting to note that all these payments were made in the
same month.
[49.4]
Ally determined that the debit orders were reversed on 16 occasions
during the period 7 May 1997 to 7 August
1998. This could only
have occurred if there were insufficient funds to pay the bond
instalments on these occasions.
After the debit orders were
returned unpaid large amounts of cash totaling R65 386.63 were
deposited into the bond account
between 2 June 1997 to 7 August
1998. In fact the final payment to settle the outstanding
amount owing was made on 7 August
1998 in an amount of R25 000.
A total amount of R146 585.86 was paid into the bond account
over a period of 18
months.
[20]
[50]
Having regard to above, Ally was of the view that the second
respondent could not have afforded to pay the
deposit for the
property in question, nor could she have afforded to pay the bond
instalments. He accordingly concluded that
the deposit and the
instalments were funded by sources other than her personal income or
savings received from her late husband.
[51]
As far as Flat 10 Pitlochry is concerned, Ally was required to
determine whether the deceased Thembisile
Gladys Mngadi was in a
financial position to pay the deposit for the purchase of this
property and whether there were sufficient
funds from the rentals
received to finance the bond and levy payments
after
her
death.
[52]
There is no dispute that the deceased Mngadi was employed at BNS
Medical (formerly Smith & Nephew) from
1 July 1983 until her
death on 28 December 2001. Her net salary was R526.89 per week
and this approximated to R2 107.56
per month. She was
employed as a packer. She purchased Flat 10 Pitlochry for
R46 000.
[21]
The
purchase and sale agreement was signed by her on 5 August 2000.
[22]
She paid R7 000 on 15 August 2000 and R2 000 on
28 September 2000 towards a deposit. The first respondent
admitted that she lent Mngadi the sum of R6 000 to pay towards
the deposit. The balance of R37 000 was financed
by a bond
from People’s Bank (now part of Nedcor).
[53]
In her application for a bond Mngadi stated that her salary was
R2 901. She also stated that after
deductions from her
salary and taking her living expenses into account, she had a surplus
amount of R1 364 available to pay
the bond and levies in respect
of the flat.
[23]
The
levy in respect of the flat was R119 per month and the bond
instalments were R473 per month in 2000. The total
amount
payable in respect of the bond instalment and levies was R592.60.
The flat had an existing tenant who paid a rental
of R650 per
month.
[24]
Until her
death the bond instalments were paid from Mngadi’s Standard
Bank account. After her death no funds
were deposited into this
account resulting in all debit orders being returned unpaid.
[25]
A total amount of R51 404.78 was paid in cash to settle the
amount outstanding on the bond after her death. These payments
were made up of one payment in the amount of R700, twenty three (23)
installments of R800, eleven (11) instalments of R1 000,
one (1)
instalment of R1 500 and a final payment of R19 804.78 on
30 June 2005.
[26]
These
amounts were paid during the period 4 March 2002 to 30 June 2005.
[54]
The first respondent admits that she paid all the bond instalments
after Mngadi’s death.
[27]
She also admits that she collected the rental prior to and after
Mngadi’s death.
[28]
The
first respondent stated that after Mngadi’s death her family
would not have been able to afford the bond payments.
[29]
Mngadi’s children were supported through funds from a provident
fund.
[30]
In terms of
Mngadi’s last Will and Testament the flat was bequeathed to the
first respondent.
[55]
Based on the above, Ally was of the view that the deceased Mngadi
could not afford to pay the deposit or
the instalments for the
property from her income. He concluded, however, that after
Mngadi’s death the rental received
from letting of the property
would have been sufficient to meet the bond instalments and levies on
the property.
[56]
Under cross-examination by Mr Slabbert the witness refuted the
suggestion that his findings were based on
‘creative
accounting’, rather than on the true facts. Ally
maintained that the first respondent had not shown
that she was able
to afford the assets in question. He maintained that the
figures set out by Nel in the financial statements
were a fabrication
and could not be relied on. He also maintained, as far as
second respondent is concerned, that she did
not have adequate funds
to acquire the property in question.
[57]
That was the sum total of the evidence led on behalf of the
applicant. Before closing the applicant’s
case Mr
Govindasamy placed on record the applicant’s reasons for not
calling the evidence of the witnesses Nicolene Marion
and Victoria
Chetty. It seems that the applicant attempted to serve a
subpoena on Nicolene Marion and although she initially
agreed to
consult with the applicant’s legal representatives, she
thereafter became evasive and avoided further contact with
them.
Victoria Chetty on the other hand refused flatly to testify on behalf
of the applicant.
APPLICATION
FOR ABSOLUTION
[58]
At the conclusion of the evidence led on behalf of the NDPP, Mr
Slabbert applied for absolution from the
instance. That
application was refused on the basis that the applicant had
established a
prima facie
case which called for an answer.
It was in any event questionable whether the respondents were
entitled to apply for absolution
bearing in mind that the provisions
of rule 39(6) really apply to a trial in the true sense.
RESPONDENTS’
CASE
[59]
As already mentioned, only the first and second respondents testified
on behalf of the respondents.
The third respondent seemed not
to show any interest in these proceedings despite filing an opposing
affidavit in the application.
FIRST
RESPONDENT
[60]
The first respondent testified that on 25 November 2005 she was
arrested and charged on various counts of
drug dealing. She and
five others were subsequently prosecuted in the Regional Court,
Pietermaritzburg on 36 counts.
In the course of that trial the
Asset Forfeiture Unit (AFU) arrived at her premises at 17 Huntley
Road, Pietermaritzburg, in the
company of the Sheriff. In the
criminal trial she also faced 3 counts of money laundering in respect
of the Huntley Road
property, the Marion Road property and Flat 10,
Pitlochry. She faced no charge in respect of the Carey Road
property.
The allegation at the time was that she had purchased
certain properties which were then registered in the names of other
people
and that she had paid for these properties with the proceeds
of drugs. She denied that she ever dealt in drugs.
[61]
According to the first respondent there was no dispute that the
Huntley Road property was purchased and registered
in the name of her
mother, the second respondent. There was also no dispute that
the property was purchased from
Mrs Pole and that the sale
agreement was signed on 12 October 1996. She denied, however,
that the property was purchased by
her. She averred that the
property was purchased by her parents. She testified that on
the first occasion when she
went to see Mrs Pole she was accompanied
by the estate agent. On the second occasion she was accompanied
by her mother.
These were the only two occasions on which she
went to see Mrs Pole. Although the property was purchased by
both her parents,
it was only her mother who had signed the sale
agreement. The property is accordingly registered in her name.
As far as the
payment of the bond was concerned, she testified that
both her parents were making payments to the bank but that her mother
was
more involved. She herself made no payment towards these
instalments or towards the purchase price.
[62]
As far as Flat 10 Pitlochry is concerned, she emphatically denied
that she was either the true purchaser
or that she had paid anything
towards the purchase price. She maintained that this property
was purchased by Thembisile Gladys
Mngadi. According to the
sale documents the property was purchased by Mngadi on 5 August 2000
for the sum of R46 000.
Mngadi applied for and was granted
a home loan. However, since the deposit that was required was
R9 000 and Mngadi only
had the sum of R3 000, the first
respondent agreed to lend her the R6 000 and that Mngadi would
repay this amount to
her.
[63]
According to the first respondent when she purchased Flat 11
Pitlochry she used her maiden surname namely
‘
Ngqulunga
’
and not Komane which is her marriage name. With regard to the
Carey Road property, she testified that she purchased
this on 8
December 2000. She paid a deposit of R30 000. On the
issue of the bond repayments in respect of these
properties, she
testified that when she purchased Flat 11 Pitlochry there was already
a tenant in occupation. She utilized
the rental paid by him to
service the bond on the Carey Road property. Her intention was
to convert this into a bed &
breakfast place. From about
2000 she placed an advertisement at the university to let out some of
the rooms. On this
basis five of the seven rooms are let out
and the rental received is utilized to pay the bond.
[64]
She emphatically denied the evidence of Gonaseelan Chetty,
supra
,
that she was involved in the sale of mandrax. As explanation
for where she got the money from to pay a deposit in respect
of the
Carey Road property and her loan of R6 000 to Mngadi, she
testified that she and her husband Mike owned a garage at
Greytown.
However, in the course of time she and her husband did not see eye to
eye and she requested him to sell the garage.
The garage was
eventually sold for R200 000 and from this she was paid the sum
of R100 000. Although she had signed
certain documents
when the garage was purchased, it was not necessary for her to sign
any documents when it was sold. She
was unsuccessful in her
efforts to obtain the documents from the attorneys which would prove
that she and her husband had purchased
this garage in Greytown.
Her share of the R200 000 was given to her in cash by her late
husband.
[65]
While she confirmed that she operated a boutique and the coffee shop
as the earlier evidence shows, it was
her husband who was involved in
the butcheries. She testified that her businesses were doing
well contrary to what the witness
Akbar Ally, had testified to.
Although she kept ‘books’ for these businesses she was
unable to find them.
[66]
The above was the sum total of the first respondent’s
evidence-in-chief. She was thereafter closely
and thoroughly
cross-examined by Mr Govindasamy over a period of about five days.
It would be an exhaustive exercise and
rather tedious to deal with
each and every aspect of the first respondent’s evidence under
cross-examination. I accordingly
propose to deal with the
relevant aspects thereof when I evaluate all the evidence in due
course.
SECOND
RESPONDENT
[67]
It is common cause that the second respondent is the mother of the
first respondent. Her evidence pertained
to the property
situated at 17 Huntley Road, Pietermaritzburg. She testified
that this property was purchased jointly by
herself and her late
husband in 1996. She averred that the first respondent did not
pay a cent towards the house. She
testified that she only saw
the house
after
it was purchased when the first respondent
took her to go and view it. She saw the owner of the house on
the first occasion
when the owner mentioned that she would be moving
and that she would give the curtains to her. No one assisted
her and her
husband in acquiring the property. The idea of
buying the house came from her late husband who said that since they
were
getting on in age they could get people to rent the house for
income.
[68]
According to the second respondent the owner of the house was a white
man who initially wanted R180 000
for the house but after
pleading with him the price was dropped to R160 000. They
paid for the house from investments
that she and her husband had in
the bank. At the time when the house was bought, neither she
nor her husband was working.
However, her husband was engaged
in making cupboards and ceilings while she did some hawking, selling
fowls, meat, eggs and second-hand
clothing from which she earned
about R7 500 per month. When her husband died in 1998 she
received an insurance pay-out
which she used as payment towards the
house. After the house was registered it was occupied by
tenants. The rental
of R2 500 per month that was received
was paid towards the house. She confirmed making application
for a social grant
in 1999. She admitted that there was no
truth in the information filled out on that form. She maintained that
she never said
anything about owning a house nor was anything asked
of her in that regard. She also denied saying that she earned
the sum
of R50 per week selling meat.
[69]
The second respondent was cross-examined by Ms Mothilal. To
initial questions put to her by the court regarding
the earnings of
R50 mentioned on the application for a social grant, the second
respondent emphatically denied that she said such
a thing.
Although she would have told the official completing the form what
she earned she was unable to now remember what
that amount was.
The second respondent maintained that she was assisted by a while
female agent to purchase the house.
The agent came to her house
in Sobantu to have some documents signed. She remembered that a
lump sum deposit of R20 000
was paid and thereafter she and her
husband continued to pay the monthly installments on the house.
Whenever payments were
required to be made she used to telephone her
daughter, the first respondent to fetch the money from Sobantu in
order to make the
payment. The house was purchased in or about
1996/1997, however in 2004 the first respondent began occupying it
when relations
between the first respondent and her husband
deteriorated.
[70]
When she was again taxed about the information contained in the
application for a social grant, she again
denied that she had
provided such information. She maintained that she was merely
requested to place her thumb print on the
form and to sign. She
admitted, however, that certain personal information appearing on the
form could only have come from
her. When it was pointed out to
her that there were large amounts of cash deposited into the bond
account, she maintained
that these came from monies earned by her
husband for work involving the making of ceilings and cupboards and
from her sales of
fowls, eggs, meat and certain second hand goods.
Her net income from such sales was approximately R7 500 per
month.
[71]
She further maintained that both she and her late husband had
purchased the house. However, when it
was pointed out to her
that the bond application documents reflect her as being single, she
expressed surprise saying that it was
a mistake on the part of the
person writing down the information. When she was asked why the
house was registered in her
name only while both she and her husband
had purchased it, her response was that it was her husband who
requested her to take her
identity book and do this because ‘he
was too much in love with me’.
[72]
As far as the payment of the purchase price is concerned, she
informed the court that she thought that the
deposit of R20 000
was taken from the house and paid. She maintained that they had
no dealings with a bank regarding
a bond and they did not have a debt
with the bank. All payments to settle the balance of R140 000
were made by herself
and her husband from monies kept at home.
She was unable to recall whether the agent had provided them with any
documents
to sign nor was she able to recall whether she went to the
bank to sign any documents. As far as she was aware the only
big
lump sum that was paid to the bank was the R10 000 which she
received in respect of a funeral policy from Sanlam when her husband
died. She had no knowledge of other big amounts like R30 000
or R40 000 being paid to the bank on her behalf.
She
testified that the only assistance that the first respondent gave to
them was when she collected monies from them whenever
payments to the
bank had to be made.
[73]
She denied Pole’s evidence that the curtains were sold for
R6 000. According to the second
respondent, the curtains
were merely left in the house. It was also suggested to her
that Pole never met her at all and had
no dealings with her regarding
the purchase of the house. She refuted this saying that the
first respondent would not have
taken someone else to view the house
when she knew that the second respondent was looking for one.
When she was questioned
about the number of vehicles registered in
her name, she maintained that all these vehicles were purchased at
auction sales including
the Audi motor vehicle. When it was
suggested to her that according to the first respondent she had
purchased this vehicle
from a Mr Piper, her response was ‘then
I do not know’.
[74]
No other evidence was led on behalf of the respondents. In
closing their case Mr Slabbert explained
that the reason why the
third respondent was not called is because he was already discredited
in the Regional Court.
LEGISLATIVE
CONTENT AND THE ONUS OF PROOF
[75]
Section 50(1) of POCA provides that:
‘
[1]
The High court shall, subject to Section 52, make an order applied
for under Section 48(1)
if the Court finds on a balance of
probabilities that the property concerned–
(a)
is an in 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.’
[76]
‘Proceeds of unlawful activities’ is defined as ‘any
property or any service, advantage,
benefit or reward which was
derived, received or retained, directly or indirectly, in the
Republic or elsewhere, at any time before
or after the commencement
of this Act, in connection with or as a result of any unlawful
activity carried on by any person, and
includes any property
representing property so derived.’
[77]
Dealing with the above definition in
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd;
National Director of Public Prosecutions v 37 Gillepsie
Street Durban
(Pty) Ltd and Another; National Director of Public Prosecutions v
Seevnarayan
[31]
in paragraphs 64 –
72, Mpati DP et Cameron JA (as they then were), held
first
[in paragraph 67] that the definition should be approached on the
basis that, subject to necessary attenuation of the linguistic
scope
of ‘in connection with’, it should be given its full
ambit; and
second
[in paragraph 72] that bearing in mind that the objective of the Act
is to render forfeit the returns that might accrue from unlawful
activity, the ‘connection’ the definition envisages
requires some form of consequential relation between the return
and
the unlawful activity, in other words, the proceeds must in some way
be the consequence of unlawful activity.
[78]
As far as the issue of the
onus
is concerned in
Sagren
Perumal v NDPP
[2011] ZASCA 37
, Snyders JA pointed out [in
paragraph 6] that
‘
[a]
successful application for forfeiture of assets in terms of s 48(1)
of POCA requires a court to find,
on a
balance of probabilities, that the property concerned is either an
instrumentality of an offence or the proceeds of unlawful
activities. Section 48 is part of chapter 6 of
POCA which focuses, unlike chapter 5, on property and not on
the
wrongdoer.
There is therefore no need for an existing criminal
conviction or
pending
criminal proceedings before the NDPP avails himself
of the provisions
of s 48 and
there were none in this case.
The court, faced with an
application in terms of s 48,
simply asks the question whether
the property was an “instrumentality
of an offence”
or
“the proceeds of unlawful activities”.’
[79]
On the issue of the
onus
,
Van Heerden JA in
Mohunram
and Another v National Director of Public Prosecutions and Another
(Law Review Project as Amicus Curiae)
[32]
in
assessing the proportionality of the deprivation held as follows in
paragraph 75:
‘
[75]
… However, as some of the factual material relevant to
the proportionality analysis will often be peculiarly within
the
knowledge of the owner of the property concerned, the owner who is
faced with a
prima facie
case established by the NDPP would in
the usual course be well-advised to place material before the court.
This does not,
however, shift the
onus
of proof to the owner
in question; it merely places on the owner an evidentiary burden or,
as it is sometimes called, a burden
of adducing evidence in
rebuttal.’
[80]
In the same judgment Moseneke DCJ made the following observation in
paragraph 131:
‘
[131]
… I may add that in terms of s 48(1) read together
with s 50(1) of POCA, the NDPP bears the
onus
to establish on
a balance of probabilities that the forfeiture sought is justified.
Naturally, the respondent in forfeiture
proceedings will have to
adduce evidence if she or he hopes to disturb or rebut the facts that
the NDPP relies upon in the founding
depositions.’
[81]
In describing the difference between the
onus
of proof and the evidentiary burden, Corbett JA in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
[33]
referred to the following dicta:
‘
As
was pointed out by Davis AJA in
Pillay v Krishna and Another
,
1946 AD 946
at pp 952-3, the word
onus
has often been used to
denote,
inter alia,
two distinct concepts: (i)the duty which
is cast on the particular litigant, in order to be successful, of
finally satisfying the
court that he is entitled to succeed on his
claim or defence, as the case may be; and (ii)the duty cast upon a
litigant to adduce
evidence in order to combat a
prima facie
case made by his opponent. Only the first of these concepts
represents onus in its true and original sense. In
Brand v
Minister of Justice and Another
1959(4) SA 712(AD) at p 715
Ogilvie Thompson JA called it “the overall onus”.
In this sense the onus can never
shift from the party upon whom it
originally rested. The second concept may be termed, in order
to avoid confusion, the burden
of adducing evidence in rebuttal
(“weerleggingslas”). This may shift or be
transferred in the course of the case,
depending upon the measure of
proof furnished by the one party to the other. (See also
Tregea
and Another v Godart and Another
,
1939 AD 16
at p 28,
Marine
and Trade Insurance Co. Ltd v Van der Schyff
1972(1) SA 26 (AD)
at pp 37-9).’
[82]
As far back as in 1913 Innes J in
Union
Government (Minister of Railways) v Sykes
[34]
made the following observation:
‘
The
important point is that less evidence will suffice to establish a
prima facie
case where the matter is peculiarly within the
knowledge of the opposite party than would under other circumstances
be required.’
[83]
As the authors of the
Law
of Evidence
[35]
explain that
‘
the
availability of evidential material, the opportunities to obtain it
or the fact that one
of
the parties has peculiar knowledge of a fact, does not alter the
standards for assessing evidential material nor,
normally, do they alter the onus of proof. The party
having exclusive evidence or peculiar knowledge of
a fact is
therefore not required to
prove the fact if, according to the usual criteria,
the burden rests
on his opponent.
Peculiar knowledge is,
nevertheless, a factor to be considered when
the court has to decide whether
evidence reaches
the required standard.’
[84]
As far as the general aims and object of POCA are concerned, it is
clear that the statute is designed to
reach far beyond ‘organised
crime, money-laundering and criminal gang activities’ and
clearly applies to cases of individual
wrong-doing.
[36]
In short, it is meant to serve as an effective tool in the fight
against crime. Having said this of course the effects
of
forfeiture are draconian and potentially invasive of the rights of
people to their properties.
[37]
It is for this reason that the applicant (NDPP) is required to
exercise his powers with care and circumspection when
seeking to
attach and/or sieze property believed to be involved in the
commission of crime or was the proceeds of such crime.
As
pointed out by Ponnan JA in
Prophet
v National Director of Public Prosecutions
[38]
‘[c]ourts
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’.
FINDINGS
[85]
I now turn to consider whether the evidence placed before me
establishes that during the period 1996-2005
the first respondent was
involved in drug dealing and whether the seized assets were acquired
from the proceeds of such activities.
In assessing such
evidence I am no doubt mindful of the following instructive
guidelines set out by Nienaber JA in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell Et Cie &
Others:
[39]
‘
The
technique generally employed by courts in resolving factual disputes
where there are two irreconcilable versions before it may
be
summarized as follows. To come to a conclusion on the disputed
issues the court must make findings on
(a)
the credibility of
the various factual witnesses,
(b)
their reliability, and
(c)
the probabilities. As to
(a)
, the court’s finding
on the credibility of a particular witness will depend on its
impression of the veracity of the witness.
That in turn will
depend on a variety of subsidiary factors such as (i) the witness’
candour and demeanour in witness-box,
(ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded
or put on his behalf, or with
established fact or with his own extracurial statements or actions,
(v) the probability or improbability
of particular aspects of his
version, and (vi) the caliber and cogency of his performance compared
to that of other witnesses testifying
about the same incident or
events. As to
(b)
, a witness’ reliability will
depend, apart from the factors mentioned under
(a)
(ii), (iv)
and (v), on (i) the opportunities he had to experience and observe
the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
, this
necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the
disputed
issues. In the light of its assessment of
(a)
,
(b)
and
(c)
the court will then, as a final step, determine
whether the party burdened with the
onus
of proof has
succeeded in discharging it. The hard case occurs when a
court’s credibility findings compel it in one
direction and its
evaluation of the general probabilities in another. The more
convincing the former, the less convincing
will be the latter.
But when all factors are equipoised, probabilities prevail.
(Paragraph 5 at 14I-15E.)’
re:
FIRST RESPONDENT’S DRUG DEALING ACTIVITIES
[86]
I start first with the evidence of LUCKY GORDON. As I already
pointed out, at the commencement of his
evidence Gordon sought to
recant his allegations implicating the first respondent in drug
dealing. He claimed that he implicated
her only because he was
asked by the investigators to provide an affidavit similar in content
to that provided by his wife Luthobile
Gordon. Since Gordon was
declared to be a hostile witness and since he was cross-examined on
the contents of one of the two
affidavits he had deposed to, I was
urged by Mr Slabbert not to accept his evidence for the following
reasons: (a)
that Subramanien was not called by the
applicant to confirm Gordon’s statement or to rebut his
testimony that he made the
statement to comply with a request by the
police that he should keep his version in line with that of his
wife’s statement;
(b) that the statement made by Gordon
is hearsay and should be rejected; and (c) that there was no
corroboration for
any of the evidence in his statement.
[87]
Gordon in my view was a singularly unimpressive witness. In
fact he was a dishonest witness.
Having deposed to two
affidavits (in one of which he implicates the first respondent
directly in extensive drug dealing) and having
agreed to testify on
behalf of the applicant in these proceedings, it was clear to me that
he was bent on wrecking the case for
the applicant. Gordon
displayed all the hallmarks of a compulsive liar. On his own
version he had stated several untruths
in a sworn statement.
Bearing in mind the close relationship he shared with the first
respondent, it is highly improbable,
in my view, that he would have
deliberately implicated the first respondent falsely on such serious
allegations.
[88]
For the above reasons I consider the submissions and criticisms made
by
Mr Slabbert to be without merit. The fact that
Subramanien was not called by the applicant is of no consequence.
There
is some force in the submissions advanced by Mr Gonvindasamy in
this regard: Gordon cannot be equated to an accused in a
criminal trial. His statement was procured not to establish any
guilt on his part. It was procured to establish his
relationship and dealings with the first respondent and in that
context to provide direct evidence of the first respondent’s
drug dealing activities.
[89]
It is trite that it is not necessary for a party to call witnesses to
rebut every version provided by witnesses.
Where the nature of
the evidence and the facts and circumstances are such that the
evidence is inherently improbable or clearly
a fabrication, as is
clearly the case with Gordon’s evidence, it is not necessary to
rebut such evidence.
[40]
[90]
With regard to Mr Slabbert’s further submissions, it is not
clear on what basis it can be contended
that Gordon’s statement
is hearsay. Gordon himself confirmed that he made the
statement. It is not clear what
further corroboration was
required. Of significance is that Gordon provided no reasons
why he willingly agreed to appease
the police or ‘them’
(referring to the investigators herein) when he incriminated the
first respondent in his statement.
In the circumstances the
contents of Gordon’s affidavit (TMS4) must be accepted as
representing the truth of the allegations
surrounding the drug
dealing activities on the part of the first respondent. Gordon
not only identifies her as a drug dealer
but goes on to provide
details of the numerous times that he purchased drugs from her for
resale.
[91]
I have already set out the relevant extracts from TMS4 in paragraph
14
supra
. In spite of the damning evidence in his
affidavit, Gordon made every effort in his oral testimony not to
implicate the first
respondent so much so that he even denied
consulting with the applicant’s legal team in preparation for
testifying in this
matter. It is common cause that Gordon never
testified in the criminal trial. In my view, he may have been
lulled into
a false sense of security believing that he was not
required to give incriminating evidence against the first respondent
with whom
he shared a close relationship. This of course
changed when he realized that he was required to testify in these
proceedings.
[92]
I deal next with the evidence of Gonaseelan Chetty. Mr Slabbert
was quite scathing in his criticism
of Chetty’s evidence.
He contended that no reliance whatsoever could be placed on Chetty’s
evidence for the following
reasons: (a) that he was a
self-confessed liar who contradicted ‘nearly every statement’
in this court
and confessed to lying in the Regional Court; (b)
that since he falsely implicated Hoosen Mohamed and Joe Maharaj, his
evidence
in this trial implicating the first respondent should be
rejected; (c) that an adverse inference must be drawn from the
applicant’s
failure to call Nicolene Marion as a witness; (d)
that he contradicted his summary of evidence; (e) that he was
unable
to establish the correct period of the first respondent’s
drug dealing activities; and (f) that he did not witness any
exchange of money between the first respondent and Ranjini Chetty.
[93]
Whilst some of the criticism might be justified it is trite that the
entire evidence of a witness who is
found to be lying on some aspects
does not fall to be rejected solely on account of such lies.
[41]
Although Chetty’s evidence was unsatisfactory in certain
respects, he was not shaken in respect of certain material
aspects
which in my view have a ring of truth about them. These relate
to the following: (a) that he met the first
respondent and went
to her house on several occasions from the early 1990’s up to
approximately 2000; (b) that he accompanied
his sister Ranjini
to Sobantu where he was introduced to the first respondent and from
whom Ranjini collected drugs; (c)
that he was told by his
sister that he should remember the house as he would be required to
collect drugs from there in the future;
(d) that on another
occasion he went to the first respondent’s house by himself
when the first respondent handed him
a packet of mandrax tablets;
(d) that he accompanied one Nicolene Marion to the first
respondent’s house to collect
mandrax tablets on Ranjini’s
instructions; (e) that on other occasions he took Bradwin
Surdat, Ebrahim Mohammed and
Joe Maharaj to the first respondent’s
house to collect mandrax tablets, and (f) that he saw the first
respondent frequently
over a period of approximately 10 years at
Ranjini’s house at 19 and 21 Queen Street, Pietermaritzburg,
and the first respondent
supplied his sister with drugs on these
visits.
[94]
Having regard to Chetty’s damaging evidence of the first
respondent’s drug dealing activities,
the first respondent
attempted to neutralize such evidence by claiming that she did not
really know Chetty that well. While
she claimed to know
Nicolene Marion who was not even closely related to Ranjini, she
desperately tried to distance herself from
Chetty. She created
the impression that as far as she was concerned Chetty was
non-existent. This can hardly be the
truth and must be rejected
as a deliberate lie particularly when one has regard to
inter alia
the undisputed evidence that at least for ten years she regularly
visited Ranjini’s house almost twice or thrice a week and
that
Chetty was always at his sister’s house during this period.
The only inference to be drawn is that the first respondent
is lying
about her relationship with Chetty because she clearly has something
to hide.
[95]
Lastly, as far as the acceptance of Chetty’s evidence is
concerned, it should be pointed out that whilst
an effort was made on
behalf of the respondents to suggest that Chetty was motivated (for
fear of being locked up) to make a statement,
it was never suggested
to him that the investigators had asked him to deliberately and
falsely implicate the first respondent in
drug dealing. Nor did
the first respondent lead any evidence to suggest this. All in
all, I am satisfied that Chetty’s
evidence implicating the
first respondent in drug dealing over an extensive period must be
accepted and the first respondent’s
denials thereof fall to be
rejected as being false.
[96]
As far as the evidence of Van der Hoogen is concerned, I have already
pointed out [para 40
supra
] that his cross-examination was
uneventful. It will be recalled that his evidence dealt with
the discovery of about 10 000
mandrax tablets from Flat 10,
Pitlochry. When the first respondent was cross-examined about
this, she conceded that her boyfriend
Wiseman Bayeni lived at Flat 10
but went on to add that ‘he then got a job far away and the
flat was then sub-rented by a
lady, Lindiwe Mkhize’
.
The first respondent denied living at Flat 10 at any stage. She
explained that after she was arrested she was taken
to Huntley Road
and whilst there she overheard the police talking to each other over
the phone stating that there was a boy who
was caught with a key to
Flat 10 and that ‘tablets had been found’ and that she
should be taken to Flat 10.
[97]
When she arrived at Pitlochry, she identified Sihle Ndlovu as being
related to her boyfriend Wiseman Bayeni.
She was then informed
by the police that they wanted to conduct a search and that she had
to be a witness. She refused saying
that she had heard earlier
that something had been found in the flat and she suspected that they
would make it look ‘as if
it was a sudden discovery’.
She explained that she had no fear of being incriminated because she
had nothing to do
with the drugs. She disputed Van der Hoogen’s
evidence that she was quite agitated and had accused the police of
framing
her. When it was suggested to her that she did not want
to enter Flat 10 because she was in fact aware that drugs would be
found there she disputed this and went on to give a garbled
explanation that she had already heard that drugs had been found when
she was arrested at Pinetown. Because she heard this she was
not prepared to become a witness.
[98]
There is clearly no dispute about the following facts: (a) that
at least 10 000 mandrax tablets
were found at Flat 10,
Pitlochry; (b) that the keys to Flat 10 were found in Ndlovu’s
possession; (c) that Ndlovu
was related to Bayeni; (d)
that Bayeni was the first respondent’s boyfriend, and (e)
that Ndlovu’s behavour
upon his arrival at the flat and his
hasty departure was highly suspicious. In her evidence the
first respondent distanced
herself from Flat 10 saying that she never
lived there at all. She also attempted to distance her
boyfriend from the flat
saying that it was sub-let to Lindiwe Mkhize.
[99]
The first respondent’s evidence that Bayeni was not living at
the flat falls to be rejected as
being false. Van der Hoogen’s
enquiries on the date of the search on
25 November 2005
established and/or led him to believe that Bayeni occupied the flat
as at that date. This evidence was not
challenged.
Furthermore, contrary to her evidence in court, the first respondent
stated in an affidavit filed in support
of her bail application that
she did in fact live at Flat 10, Pitlochry after she had separated
from her husband.
[42]
According to the evidence she had separated from her husband during
or about 2004.
[100]
It is of some significance that Van der Hoogen was not challenged on
the contents of his statement as well
as his evidence-in-chief to the
effect that the first respondent had complained that she was being
framed. Her evidence that
she had learnt that drugs were found
at the flat whilst she was at Huntley Road as a result of
conversations she allegedly overheard
must be rejected as a
fabrication. In any event the first respondent contradicts
herself in this regard when she states that
she knew that drugs were
found at Flat 10 when she was arrested in Pinetown. It seems to
me that this explanation was fabricated
to explain the presence of
the drugs that were in fact found there.
[101]
Van der Hoogen’s direct evidence was that the drugs were only
found after the search was conducted
when the first respondent had
already been taken away from the flat. He was not challenged on
this aspect at all. His
evidence in this regard contradicts and
puts paid to the first respondent’s version that drugs had
already been found at
Flat 10 prior to her arrival there. I am
accordingly satisfied that the probabilities favour the applicant’s
version
that the drugs found at Flat 10, Pitlochry, belonged to the
first respondent.
[102]
From the cumulative evidence of the witnesses GORDON, CHETTY and VAN
DER HOOGEN, I am driven to conclude
on a preponderance of
probabilities that the first respondent was engaged extensively in
drug dealing activities from about the
mid 1990’s to about
2005.
re:
FIRST RESPONDENTS FINANCIAL POSITION
[103]
As far as the first respondent’s financial position is
concerned the applicant relied on (i) the affidavit
deposed to by
SINDISIWE MKHATSHINA dated
29 March 2006; (ii) financial
statements prepared by the first respondent’s bookkeeper ARNOLD
NEL for the coffee shop and
the boutique, and (iii) an overview and
analysis by AKBAR ALLY of the financial statements and the
transactions appearing in the
first respondents bank account for
‘Joyces Boutique’. I have already dealt extensively
with Ally’s findings
regarding the first respondent’s
financial position. The findings here below should be read in
conjunction with his
report appearing in the applicant’s
notices bundle.
[104]
As I pointed out earlier Nel had admitted in the criminal trial that
the financial statements prepared by
him were fabricated. The
admitted purpose of these financials was to persuade a bank to
approve a loan of R180 000 for
the first respondent.
However, the coffee shop did not exist in 1999 and accordingly all
the figures in these financials
relating to the coffee shop are
false. Consequently in my view other figures using the
fictitious 1999 amounts have to be
rejected as false and unreliable.
The first respondent’s evidence that the financial statements
were drawn from entries
recorded by her in various ‘books’
must be rejected as being false. The boutique closed down at
the end of 1999.
The boutique was thereafter re-opened at a
different address in 2000 but only operated for a period of six
months. Consequently
the financials in respect of the boutique
are also flawed. In my view no reliance whatsoever can be
placed on these financials.
The first respondent, however,
placed substantial reliance on these financials to justify an income
of approximately R16 000
per month in 2000.
[105]
The first respondent has not placed any cogent evidence to rebut the
evidence presented by the applicant
regarding her financial
position. She adopted a supine attitude taking the view that
the applicant had all the means at his
disposal to find whatever
information he required. This attitude of course misconstrues
the nature of the evidentiary burden
which was cast on her.
While she admitted in her evidence that she kept ‘books’
for her businesses she failed
to produce these books to justify her
sources of income. I set out hereunder what the evidence
revealed insofar as the first
respondent’s alleged sources of
income are concerned:
THE
BOUTIQUE
[105.1]
The applicant placed complete reliance on the evidence of Mkhatshwa
as contained in her sworn affidavit
regarding the income generated
from the boutique. I have already set out material portions of
Mkhatshwa’s affidavit
[paragraph 17
supra
].
Mkhatshwa, like the witness Gordon, attempted to recant her evidence
and was declared hostile. There exists no reason
why her
evidence on affidavit should be rejected. It must be regarded
as the truth of what she said at the time.
Her evidence
paints a rather bleak picture of the business. In her oral
testimony she attempted bravely to assert that the
business made
R10 000 – R15 000 per week. This evidence
was no doubt designed to be in line with that of the first
respondents
save that the first respondent asserted that it was ‘
per
month
’. I gained the distinct impression that
Mkhatshwa was trying desperately to give evidence favourable to the
first respondent.
It is highly probable that she and the first
respondent discussed this evidence prior to Mkhatshwa testifying.
[105.3]
I have already dealt with Ally’s findings with regard to the
boutique. His findings show that
the boutique was unable to
meet its expenses and was trading at a loss. The first
respondent has simply failed to produce
any records of any sales,
purchases, invoices and the like for the six month period when the
boutique operated in 2000. Nor
were any records produced when
it operated between 1996 to 1999 from the old premises.
[105.4] In
the absence of any information from the first respondent, Ally’s
opinion regarding the losses sustained by
the boutique must be
accepted. It should be pointed out that the first respondent
did not challenge the methodology employed
by Ally in his report nor
did she testify to any other manner of determining these expenses.
THE COFFEE
SHOP
[105.2]
Once again the first respondent provided no bank statements, sales
records or vouchers in support of any
income or expenditure in
respect of the coffee shop. On Ally’s analysis as set out
in his report, it must be accepted
that the coffee shop like the
boutique would have sustained continuous and substantial losses over
the years.
PROCEEDS FROM
ALLEGED SALE OF GARAGE
[105.3]
According to the first respondent she and her husband Mike Komane
jointly invested monies for the acquisition
of a garage at Greytown.
However, as a result of her husband’s infidelity they were
fighting all the time and she then
demanded ‘her share of the
garage’. Her late husband then allegedly sold the garage
for R200 000 and gave
her R100 000 in cash. From this
amount the first respondent claimed that she paid the deposit of
R30 000 in respect
of the Carrey Road property and loaned an
amount of R6000 to the deceased Mngadi. Her evidence-in-chief
in respect of the
sale of the garage went as follows:
‘
Now
the money that you put down as a deposit on 33 Carey Road and no. 11
Pitlochry and the R6 000,00 that you lent to Thembizile
Mngadi,
where did you get that money from? --- My husband and I had a garage
in Greytown. And it so happened that in the
course of time we
could not see eye to eye with my husband pertaining to certain
activities that I did not like, which were taking
place in Greytown.
And I thereafter told him to sell this garage and give me my share.
We agreed. He started
making advertisements and got himself
engaged in all the transactions and finally he told me that he sold
the garage for an amount
of R200 000,00.
Right.
Now when the garage was purchased, did you sign any documentation?
--- Yes, we did sign documents at the attorney’s
office.
It would be somewhere in the corner of Longmarket Street.
Right,
and when he said he sold it, was it necessary for you to sign
documents at the offices of the attorney? --- No.
And
in order to get the documents you signed when you purchased the
property, what did you do in respect of that? …
When
you were looking for the documents that you signed to show you
purchased the garage in Greytown. --- Yes. Yes, I did
approach
the attorneys, who then said that those papers cannot be located.
I then instructed an attorney, who then wrote
to them and up to now
those documents are not available.
How
many times did you go to the attorneys, who you say got the
documents? --- I went to the attorney’s office on two occasions
to such an extent that I was later being obstructed, I was not even
able to speak to the attorney himself, but ended up speaking
to the
receptionist.
Right,
so you could not get any documents? --- Yes.
Now
did you receive any money as a result of the sale of the garage? ---
Yes, I received R100 000,00.
Who
gave you the money? --- It was Mike, my husband.
And
did he give it to you in what form, a cheque or in cash? How
did he give it to you? --- It was cash.
Now
you were talking about Mike Komane. You were married to him?
--- Yes.
Were
you separated later on? --- Yes.
When
was that? --- Around 2004.’
[105.4]
Under cross-examination the first respondent was pertinently asked
about the circumstances surrounding
the acquisition of the garage.
This is what followed:
‘
I
assume you had invested a lot of money in this garage? --- My husband
and I were owning taxis and we sold them and bought this
garage.
The business belonged to both of us.
Do
you recall how much was put into the business, or what the purchase
price of that business was? --- I cannot remember, but when
the
business was eventually sold it was sold for R200 000.00 and I
lost out because that is not the amount that we had invested,
although I cannot remember what he amount was.
Now
is my understanding correct that this garage was purchased by you all
in about 1995 or thereabout? --- On or about, Yes
But
prior to that you all had a taxi business operating? --- Yes
For
approximately how long was that taxi business? --- With regard to the
taxi business, my husband was more involved that I.
Ok,
well let us just try to work a little backward. When were you
married? --- 1994.
Now
as the taxi business in operation before you married? --- Yes
Approximately
how long? --- I cannot remember
You
all married in April 1994 and at that time … did your husband
have the taxi business? --- Yes
And
then the taxi business was closed during 1994? --- He sold some of
the taxis and returned the others.’
[105.5]
It is highly unlikely that she was a party to such purchase. If
she was there exists no reason why
she would not have been a party to
any agreement when the garage was sold. Significantly she was
unable to produce a single
document relating either to the alleged
sale of the garage or its business activities while it traded.
No records were produced
from the Receiver of Revenue pertaining to
any direct or indirect tax connected with the business. It is
highly improbable
in my view that the first respondent made any
significant contribution towards the acquisition of the garage.
Her evidence
in this regard is vague, incoherent, contradictory and
unsubstantiated. The probabilities suggest that the garage was
the
exclusive business of her late husband. This is apparent
from paragraph 15 of Gordon’s affidavit,
supra
, where he
stated:
‘
I
know that Joyce is married to a person named Mike Komane. I
know that Mike was arrested for armed robberies and served a
lengthy
jail sentence and on his release he opened a garage in Greytown.
I was invited to the official opening of the garage
in Greytown.
This garage closed down after a while and Mike Komane purchased taxis
…’
[105.6]
In order to fortify the first respondent’s position that she
indeed received R100 000 from
the sale of the garage, Mr
Slabbert referred to the following excerpt of her evidence in
re-examination. This evidence was
elicited in the following
manner:
‘
Mrs
Komane, just to start where my learned friend ended now, I want to
take you to the applicant’s bundle, page 157, that
is that
scribbling of Mr Nel, page 157. Now, I just want to refer
there, it appears like he had drawn a line between the
shebeen which
was deleted later on and Joyce’s Boutique 170 Retief Street, do
you see that? … Yes. Now this
was in 2000 that you
referred to that investment of R70 000? … Yes. Now
that was before you bought Carey Road?
… Yes.’
[105.7]
Significantly the first respondent never testified that she invested
R70 000 of the R100 000
allegedly received as her share
from the garage. Her own evidence contradicts that suggestion.
When I asked her whether
she could give an indication as to when she
opened the boutique, she responded as follows:
‘
Maybe
the only way I can assist the court would be to say that when I
opened the boutique it was after I had received my share,
because p
art of the money that I used to set up the boutique was from that
share. Because from that share I took out R30 000
and paid
a deposit towards the house. And also the deposit was paid in
respect of the flat no.11 was also from that share.
And
thereafter as I say I utilized some of that money to set up the
boutique and making purchases.’
[105.8]
It is also significant that the alleged investment of R70 000
was not included in the financial statements
prepared by Nel.
In the circumstances, the first respondent’s evidence that she
received the sum of R100 000 cash
from her late husband arising
out of the sale of the garage, is so inherently improbable that it
can safely be rejected as being
false. It follows in my view
that the first respondent fabricated this version in order to justify
a legitimate source of
income for the deposit and the alleged loan to
the deceased Mngadi for the acquisition of Flat 10, Pitlochry.
It is perhaps
convenient to deal with this property at this stage.
FLAT
10 PITLOCHRY – Thembisile Gladys Mngadi
[106]
As the applicant’s evidence shows this flat was allegedly
purchased by the deceased Mngadi on 5 August
2000. She
allegedly paid a deposit of R9 000 and financed the balance of
the purchase price by way of a mortgage bond.
It was common
cause that Mngadi died on 28 December 2001 and that an amount of
R51 404.78 was paid into the bond account in
settlement thereof
after
her death. Ally expressed the opinion that Mngadi
could not afford to pay the deposit and the various substantial sums
paid
into the bond account from her income. He expressed the
view, however, that after Mngadi’s death the rental derived
from the flat ought to have been sufficient to meet the bond
installments and levies on the property. As already pointed
out
the first respondent claimed that she lent Mngadi the sum of R6 000
to pay towards the deposit.
[107]
Was Mngadi in a financial position to purchase the property in
question? We know from the evidence
that Mngadi was employed as
a packer by Smith & Nephew earning an income of approximately
R526 per week. She had no other
financial resources. She
occupied a ‘RDP’ house which she was still in the process
of completing. The first
respondent’s evidence that she
lent her R6 000 towards the deposit begs the question as to why
Mngadi would want to invest
in a property when she could not even
afford to pay the deposit and was still trying to complete her own
house. The first
respondent’s evidence that she regarded
the R6 000 as a loan is highly suspicious as it is clear that no
arrangements were
made as to how it was to be repaid. It is not
disputed that no portion of that money was paid from the date of
purchase of
the property until Mngadi’s death, a period of
approximately 18 months.
[108]
There was no dispute that Mngadi left a Will in terms of which she
bequeathed the flat to the first respondent.
This Will further
provided that upon the first respondent predeceasing her, the first
respondents children will inherit the property.
The reasons
advanced by the first respondent as to why Mngadi bequeathed the
property to her is not only contradictory but also
nonsensical:
[108.1]
According to the first respondent, when Mngadi was ill she told the
first respondent that she should look
after the flat or guard the
flat, collect the rent, pay for the flat and forward the remaining
money to Mngadi’s child Malondi.
Mngadi apparently chose
the first respondent to attend to all these matters because her
mother would not be able to do so.
When it was suggested to the
first respondent that Mngadi’s sister for instance could have
attended to all these things her
response was ‘well she
selected me while she was alive’.
[108.2]
The first respondent testified that the flat was bequeathed to her
because she and Mngadi were very close
and trusted each other.
Mngadi also assisted her by selling clothes. Having said this
she goes on to make the following
startling statement:
‘
And
she was aware and in fact she knew that seeing that this flat has
been given to me in the form of a Will, but that in actual
fact I
would transfer the flat to her children and would not selfishly
retain ownership.’
[108.3]
In her affidavit opposing the forfeiture application the first
respondent said the following:
‘
Before
her death she requested me to carry on with the payments of the flat
otherwise she will lose the flat. She also informed
me at the
time that her family would not be able to pay the outstanding
instalments of the flat.’
[108.4] When she
was pressed to explain how it was possible that she would lose the
flat if she did not carry on with the payments
her explanation was
the following:
‘
When
Gladys said this, she meant that I must be the one to continue doing
this as I have been doing all along. In actual fact
Gladys is
not born Mngadi. She was born out of wedlock by my aunt and
then the aunt came with her. These are not her
real sisters.
It is me who she trusted. And you would see that all her
sisters are educated. They are teachers,
they are nurses, but
she is the only one who is uneducated. She was taking me like
her sister. That is what I can explain
to the court.’
[109]
In my view the explanations proffered by the first respondent are not
only unconvincing but also inherently improbable.
The only
conclusion is that the deposit and all payments made subsequent to
Mngadi’s death were made by the first respondent
who from the
outset was the real and effective owner of the flat.
HUNTLEY
ROAD PROPERTY
[110]
This is the property that was purchased from Juliania Sonia Pole
[para. ___
supra
]. It is registered in the name of the
second respondent who took transfer thereof in her name on 13
February 1997.
Pole was adamant that all her dealings relating
to the sale of the house were with the first respondent who she
referred to as
‘Joyce’. She had no dealings with
the second respondent at all. Significantly the second
respondent testified
that she saw the house only
after
it had
been purchased by the first respondent. Pole was also adamant
that it was the first respondent who purchased the curtains.
She reiterated under cross-examination that the first respondent
purchased the curtains in addition to collecting certain building
plans. On the other hand the second respondent testified that
the curtains were left behind by Pole and that the plans were
given
to her.
[111]
Pole, in my view, was a good witness whose version has a ring of
truth about it. I have no reason to disbelieve her.
I
accept on her version that at all material times she dealt with the
first respondent. She was able to recall vividly the
visits
made by the first respondent to her house and discussions concerning
the sale of the curtains. The second respondent
on the other
hand was an evasive witness who when pressed for explanations gave
nonsensical and illogical responses. For
instance when it was
pointed out to her under cross-examination that the property was
registered in her namely only she explained
that this was her
husband’s wish because ‘he was too much in love with
me’. When she was asked whether
she ever took an amount
of R20 000 to pay as a deposit her response was ‘I think
we took it from home’.
When she was asked by the court
about a mortgage bond over the property she stated that she did not
know anything about a bond
and added ‘we did not borrow any
money’. She had no knowledge of substantial amounts such
as R30 000 or
R40 000 being paid into her bond account.
[112]
The poor quality of the evidence adduced by the second respondent
leads me to conclude (i) that she had nothing to do with
the purchase
of this house; (ii) that she can never be regarded as the true owner
of this property and (iii) that she was merely
used by the first
respondent to create the impression that she (i.e. the second
respondent) was the true owner.
MARION
ROAD PROPERTY
[113]
This property is registered in the name of the third respondent.
He did not appear to defend the order being sought
against him.
According to an affidavit
[43]
deposed to by him he states that he made a single contribution
towards a stokvel. The first respondent then approached him
to
purchase a house which was subsequently registered in his name.
He further states that from the manner in which the deal
was
conducted and the first respondent’s involvement in the
property it was clear to him that the first respondent acquired
the
property for herself but merely used his name. He further
averred that he did not collect any rental income and that
it was the
first respondent who collected all the rental and was responsible for
the rates and general maintenance of the house.
[114]
When the first respondent testified she said that she approached the
stokvel members and persuaded them
to allow the third respondent to
receive the sum of R20 000 in advance of his turn and the
stokvel members agreed. She
also borrowed an amount of R10 000
on the third respondent’s behalf from the members of another
stokvel who charged
R3 000 interest thereon. The agreement
concluded by her in respect of the R10 000 loan was that the
third respondent
would pay it back at the rate of R500 to R600 per
month. Significantly the first respondent did not tender any
evidence that
the third respondent had in fact made all the
contributions to the stokvel particularly as he had derived the full
benefit therefrom.
She did not take this issue any further
whilst under cross-examination.
[115]
The first respondent was challenged on the alleged agreement and
repayment of the loan of R10 000. It was pointed
out to
her that at the rate of R500 per month the total repayment after six
years would be R36 000. Her response was
‘I hear
what you are saying but this amount in particular which is R13 000
was paid by my uncle over a period of six
years’. Nowhere
did the third respondent indicate that he made any repayments
whatsoever. As far as the collection
of rental is concerned she
explained that the arrangement was that the rental would be collected
from the tenant by her and sometimes
by her sister’s son
Nanana. The rental would then be handed over by one Linda to
the third respondent at the end of
each month at Kwahlabisa. It
was pointed out to her that in the criminal trial she testified that
the rental was handed over
to the third respondent but only after six
years and therefore he could not have received the rental. She
then explained
that the arrangement concerning repayment was that
initially her uncle would pay the amount which he had borrowed
without getting
any rental. She then contradicted her earlier
evidence that her uncle made the repayments and claimed that she in
fact made
the payments directly to the members of the stokvel.
She confirmed that part of the money had been used by her for
cleaning
the yard, paying necessary bills and generally maintaining
the property but alleges that the third respondent had asked her to
attend to that.
[116]
Having regard to what the third respondent has said in his affidavit,
I find the first respondent’s version so fraught
with
contradictions and consistencies that it must be rejected as being
false. If the third respondent was indeed the true
owner of
this property he no doubt would have done everything possible to
resist the forfeiture order. His failure to do
so indicates
that he simply has no interest in this property because the rightful
owner is in fact the first respondent.
FIRST
RESPONDENT AS A WITNESS
[117]
I have already made certain comments about the first respondent which
have a strong bearing on her credibility as a witness.
She
cannot by any stretch of the imagination be regarded as a supine,
unknowing witness. She certainly came across as being
a very
confident, intelligent and articulate individual with an uncanny
ability of wriggling herself out of uncomfortable situations.
This was quite apparent from many of her responses under
cross-examination. Most of these have been dealt with above.
She displayed a contemptuous attitude towards the applicants
investigations particularly Subramanien. This was evident from
her occasional outbursts while testifying, in the course of which she
blamed them for all her woes. All in all I consider
the first
respondent to be a wily witness with an extremely domineering and
manipulative personality.
[118]
As I stated already the respondents and the first respondent in
particular have clearly misconstrued the nature of the
onus
resting on them in this matter. They believed that if they sat
back and did nothing the applicant would not be able to prove
a case
against them. In my view the respondents have dismally failed
to adduce any cogent evidence in rebuttal to upset the
strong
prima
facie
case presented against them.
CONCLUSION
[119]
On a totality of the evidence I accordingly conclude that the issue
placed before me for the hearing of oral evidence must
be answered in
favour of the applicant. It follows that the applicant is
entitled to a forfeiture order in the terms set
out hereunder.
[120]
Before concluding this judgment it is perhaps necessary to say
something regarding the issue of proportionality. Mr
Govindasamy has correctly in my view pointed out that generally this
issue is raised and dealt with in applications concerning
‘an
instrumentality of an offence’. In this regard the
enquiry relating to proportionality requires an examination
of
inter
alia
the nature and severity of the crime in relation to the
property concerned.
[121]
Whilst proportionality is not strictly a requirement of POCA it is
nevertheless a factor to be taken into account in determining
whether
the forfeiture is arbitrary having regard to the provisions of
section 25(1) of the Constitution. The approach of
the
Constitutional Court on the issue of proportionality in cases
concerning property which is found to be an instrumentality of
an
offence is the following:
‘
[75]
It is the task of the court to ensure that the deprivation of
property that will result from a forfeiture order is not
arbitrary.
The proportionality assessment is a legal one, based on an evaluation
of all the relevant factors in the full
factual matrix of the
particular case. The o nus of establishing that all the
requirements for a forfeiture order in terms
of s 50 of POCA –
including that of proportionality – have been met, rests on the
NDPP throughout. However, as
some of the factual material
relevant to the proportionality analysis will often be peculiarly
within the knowledge of the owner
of the property concerned, the
owner who is faced with a prima facie case established by the NDPP
would in the usual course be
well-advised to place this material
before the court. This does not, however, shift the onus of
proof to the owner in question;
it merely places on the owner an
evidentiary burden or, as it is sometimes called, a burden of
adducing evidence in rebuttal.’
[44]
[122]
There seems to be merit in the applicant’s argument that in
cases dealing primarily with ‘proceeds of crime’
it might
be necessary to consider what threshold requirement should be met in
determining whether a particular property constitutes
the proceeds of
crime. I consider that the same threshold requirement would
apply as in ‘instrumentality’ cases
the onus being on the
NDPP throughout to establish that all the requirements for a
forfeiture order have been met. Once this
has been established
a duty would rest on the party opposing such an order to adduce
cogent evidence to show that the assets were
acquired from legitimate
sources of income so as to render the forfeiture inequitable having
regard to the provisions of section
25(1) of the Constitution.
As I said the respondents have failed to do so in the present matter.
ORDER
[123]
The order I accordingly make is the following:
1. That the
property listed in the Annexure hereto is declared forfeit to the
state in terms of the provisions of Section 50 of
the Prevention of
Organised Crime Act, No. 121 of 1998 (the POCA).
2. That the
curator bonis
appointed by this Court in terms of the
preservation order dated 4 June 2008 continue to act as such with
authority to perform
all the functions specified in the POCA subject
to the provisions of the
Administration of Estates Act, No. 66 of
1965
, and to the supervision of the Master of the High Court.
3. The
curator
bonis
is authorized, as of the date on which the forfeiture order
takes effect to:
3.1 dispose of
the property by way of public auction;
3.2
deduct his fees and expenditure which were approved by the Master of
the High Court;
3.3
deposit the balance of the proceeds into the Criminal Assets Recovery
Account, established under
Section 63
of the POCA, with account
number 80303056 held at the South African Reserve Bank, Vermeulen
Street, Pretoria;
3.4
Perform any ancillary acts which, in the opinion of the
curator
bonis
, but subject to any directions of the Criminal Assets
Recovery Committee established under
Section 65
of the POCA, are
necessary.
4. That the
Registrar of this Honourable Court, or the State Attorney
(Kwazulu-Natal) on the request of the Registrar, must publish
a
notice of this order in the Government Gazette as soon as practicable
after the order is made.
5. That in terms
of
Section 50(6)
of the POCA, this forfeiture order shall not take
effect before the period allowed for an application under
Section 54
of the POCA or an appeal under
Section 55
of the POCA has expired or
before such application is disposed of.
6. That the
first, second and third respondents are ordered, jointly and
severally, to pay the applicant’s costs, including
all reserved
costs (if any), such costs to include the costs of two counsel.
ANNEXURE
TO ORDER
1.
Portion 11 of Erf 1187 Pietermaritzburg Registration Division FT in
the Pietermaritzburg/Umsunduzi Transitional Local Council
Area,
Province of KwaZulu-Natal, 1264 square metres in extent, held under
Deed of Transfer No. T17368/2001, physical address being
33 Carey
Road, Pelham, Pietermaritzburg
.
2.
A Unit consisting of Section No. 11 as shown and more fully described
on Sectional Plan No. SS 392/99 in the scheme known as
Pitlochry in
respect of the land and buildings situate at Pietermaritzburg, the
Pietermaritzburg Local Council Area, of which section
in the floor
area, according to the said plan is 37 square metres in extent, held
under Deed of Transfer No. ST41026/2001, physical
address being
Flat
11 Pitlochry, Commercial Road, Pietermaritzburg
.
3.
A Unit consisting of Section 10 as shown and more fully described on
Sectional Plan No. SS392/99 in the scheme known as Pitlochry
in
respect of the land and building or buildings situate at
Pietermaritzburg, the Pietermaritzburg/Umsunduzi Transitional Local
Council Area, of which Section the floor area, according to the said
Sectional Plan is 37 square metres in extent, held by Deed
of
Transfer No. ST60551/2000, physical address being
Flat 10
Pitlochry, Commercial Road, Pietermaritzburg
.
4.
Portion 1216 (of 988) of the farm Northdale No. 14914, Registration
Division FT, situate in the Pietermaritzburg/Umsunduzi Transitional
Local Division Council Area, Province of KwaZulu-Natal in extent of
3989 square metres, held under Deed of Transfer No. T32775/2001,
physical address being
33 Marion Road, Northdale,
Pietermaritzburg
.
5.
Sub 52 (of 1) of Lot 1777 Pietermaritzburg, situate in the
Pietermaritzburg/Umsunduzi Transitional Local Council Area,
Administrative
District of Natal, Province of KwaZulu-Natal in extent
of 1039 square metres, held under Deed of Transfer No. T3963/97,
physical
address being
17 Huntley Road, Bisley, Pietermaritzburg
.
6.
Motor Vehicle, Audi 500, Registration No. NP58686, Engine No. PR
008323, Chassis No. AAAZZZ44ZKU001891.
Date
of Hearing: 13 June 2013
Date
of Judgment : 28 August 2013
Counsel
for Applicant : Adv. M Govindasamy SC
Instructed
by : Director of Public Prosecution, Durban
Counsel
for Respondents : Adv. F Slabbert
Instructed
by : Messrs JH Slabbert Attorney
[1]
The
order was granted by Ngwenya AJ on 21 May 2011 when the application
was set down for argument on the opposed roll.
[2]
Section
38 empowers the NDPP to approach a High Court,
ex
parte,
for an order preserving property reasonably believed to be an
‘instrumentality of an offence’, ‘the proceeds
of
unlawful activities’ or ‘associated with terrorist and
related activities’. When such an order is
obtained the
relevant High Court authorises the seizure of the property and makes
ancillary orders that the court considers appropriate
for the
proper, fair and effective execution of the order’.
[3]
Applicant’s
bundle: TMS4 and TMS23 at pages 1-10.
[4]
Applicant’s
bundle: TMS17 pages 142-144.
[5]
Applicant’s
bundle item 20 pages 183-184.
[6]
Applicant’s
bundle pages 68-80.
[7]
Notice’s
Bundle Part D pages 27 – 29.
[8]
Notice’s
Bundle Part D pages 6 – 10.
[9]
Applicant’s
bundle, TM536 pages 342 – 346.
[10]
Applicant’s
bundle.
[11]
Annexure
TMS20 to applicant’s founding affidavit.
[12]
Nel’s
affidavit, Annexure TMS21 to the applicant’s founding
affidavit.
[13]
Transcript
of criminal trial – page 1059.
[14]
Applicant’s
Notices Bundle Part B pages 94-113.
[15]
First
Respondent’s Opposing Affidavit from page 777 onwards.
[16]
Application
papers Vol.1 pages 476-483.
[17]
Application
papers Vol.1 pages 533-534.
[18]
Application
papers Vol.1 page 484.
[19]
Application
papers, Vol.1, pages 511-512.
[20]
Application
papers, Vol.1, annexure TMS43, pages 511-512.
[21]
Application
papers, Vol.1, TMS31, page 399.
[22]
Application
papers, Vol.1, pages 337-340.
[23]
Application
papers, Vol.1, pages 367-374.
[24]
Application
papers, Vol.1, page 345.
[25]
Application
papers, Vol.1, TMS32, pages 401-417.
[26]
Application
papers, Vol.1, TMS32 pages 428-434.
[27]
Opposing
affidavit, page 798, para 106.
[28]
Criminal
record, Vol.7, pages 1218-1219.
[29]
Opposing
affidavit, page 798, para 105.
[30]
Application
papers, Vol.1, TMS31, pages 399-400.
[31]
2004(2)
SACR 208 (SCA)
[32]
2007(2)
SACR 145 (CC)
[33]
1977(3)
SA 534 at pages 548
[34]
1913
AD 156
at 173-4
[35]
Schmidt & Rademeyer’s
Law
of Evidence
(July 2012 – Service Issue 10).
[36]
Cook
Properties, supra, para [65].
[37]
See
the comments of Bosielo AJA in
Mazibuko
and Another v National Director of Public Prosecutions
2009(2) SACR 368 SCA at page 378, para 22.
[38]
2006(1)
SA 38 (SCA) para 45.
[39]
2003(1)
SA 11 (SCA).
[40]
See:
1.
Putter
v Provincial Insurance Co. Ltd and Another
1963(3) SA 145 (WLD) at page 150 C-D.
2.
Titus v Shield Insurance Co. Ltd
1980(3) SA 119 at page 133 D-H.
[41]
Santam
Bpk v Biddulph
[2004]
2 All SA 23
(SCA), page 27, para 10.
[42]
Respondent’s
bundle: page 65, para 15.2.
[43]
Annexure
TMS3, Applicant’s Bundle page 267, para 3.
[44]
Per
Van Heerden AJ in
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).