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[2012] ZAGPPHC 232
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National Director of Public Prosecutions v Madumela (13842/10) [2012] ZAGPPHC 232 (29 October 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
Number: 13842/10
DATE:29/10/2012
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
......................
APPLICANT
and
EMEKA
HYICENTH
MADUMELA
...................................................................
RESPONDENT
JUDGMENT
Delivered
on: 29 October 2012
POTTERILL
J,
1.
The applicant, the National Director of Public Prosecutions ["NDPP"]
is in terms of
section 48
of the
Prevention of Organised Crime Act No
121 of 1998
[hereinafter referred to as the POCA] applying for a
forfeiture order of:
"1.1
a 2003 Volkswagen Polo with registration number DRG 212 MP and
vehicle identification number CDG997S (the Polo);
1.2
a 2005 Toyota Jazz with registration number DXJ 052 MP and vehicle
identification number GDC245S (the Tazz);
1.3
Cash money to the amount of R4650.00 (four thousand six hundred and
fifty rand) (the cash 1);
1.4
a 2001 Hyundai Elantra with registration number DSG 061 MP and
vehicle identification number FYV437W (the Elantra);
1.5
Cash money to the amount of R1747.50 (one thousand seven hundred and
forty seven rand and fifty cents) (the cash 2);
1.6
a 2004 BMW 120IM sedan with registration number DXJ 056 MP and
vehicle identification number DMM690S (the BMW);
1.7
Cash money to the amount of R20 500.00 (twenty thousand five hundred
rand) (the cash 3)"
[hereinafter
referred to as "the property"]
An
order for the preservation of the abovementioned property was granted
by this court on 10 March 2010.
2.
The applicant alleged that the property is liable for forfeiture as
it was used as instrumentalities [s1 of POCA] to facilitate
the
criminal offences of illegal dealing in and/or possession of
prohibited dependence producing substances in contravention of
the
provisions of the
Drugs and Drug Trafficking Act, 140 of 1992
[Schedule 1 to the POCA-offences] and/or contravening the provisions
of the
Prevention and Combating of Corrupt Activities, Act 12 Of 2004
[schedule 1 to the POCA offences] or are the proceeds of such
unlawful activities [s1 of POCA]. This is accordingly an application
in terms of Chapter 6 of POCA which provides for forfeiture of the
proceeds of and instrumentalities used in crime that is not
based on
conviction or differently put on wrongdoers. It is property based; it
may be invoked even when there is no prosecution.
The applicant must
prove this application on a balance of probabilities.
3.
The respondent denied that the property was used as instrumentalities
to facilitate the criminal offences referred to or were
the proceeds
of such offences. The respondent at this stage in the proceedings
also claimed that he obtained the property legally
and for value and
that he neither knew nor had reasonable grounds to suspect that the
property constituted the proceeds of crime
or had been an
instrumentality in an offence ["innocent owner defence"].
In terms of
section 37
of POCA proceedings in an application for
forfeiture of property are civil in nature and subject to the rules
of evidence applicable
in civil proceedings. The respondent must thus
on balance of probabilities satisfy me of his innocent owner defence.
[National
Director of Public Prosecutions and Another v Mohamed NO
and others 2002(4) SA 843 (CC) pari6-17]
4.1
As for the first stage procedure it was argued on behalf of the
respondent that there were no facts to support the averred
instrumentality or proceeds of unlawful activities because Nel's
affidavit relied upon in the forfeiture application in its entirety
constituted hear-say evidence. The affidavit should be struck out
resulting in no forfeiture application before me and it should
be
dismissed with costs.
4.2
The applicant used in support of its notice of motion for
preservation the affidavits of N J van Zyl, and Eulanda Geldenhuys
with confirmatory affidavits of Laubscher, Denner, Blom, Mahlatji,
Nkosi, Modiba and Mulder. A further affidavit of Nel was filed
in
support of the forfeiture application. Nel also filed a replying
affidavit to the opposing affidavit of the respondent. In opposition
to the forfeiture order the respondent filed an opposing affidavit in
which he set up a general background with certain facts and
then he
responded to only the affidavit of Nel in support of the forfeiture
affidavit.
4.3
It was conceded by counsel for the respondent that the affidavits and
annexures to the affidavits pertaining to the preservation
order is
part and parcel of the forfeiture application. This conceded general
proposition is made specific in casu in the notice
of motion for
forfeiture which read as follows: "Take further notice that the
affidavits of Nicoline Nel and Eulanda Geldenhuys
and all annexures
thereto, as well as all affidavits and annextures filed in support of
the preservation of property order granted
by this Honourable Court
on 10 March 2010 under the same case number, will be used in support
hereof, "[(my emphasis].
In
paragraphs 23 and 24 of Nel's affidavit to the forfeiture application
she stated as follows:
"The
applicant refers this Honourable Court to the documents and annexures
filed in support of the preservation application,
filed under the
same case number. The papers filed in support of the present
application continue from those filed in support of
the preservation
application and the latter papers are accordingly incorporated
herein.
The
facts upon which the applicant relies in support of this application
are set out in the affidavits of Nicolaas Johannes van
Zyl and
Geldenhuys and the annexures attached thereto, as well as the
confirmatory affidavits that were all filed in support of
the
preservation application." (my emphasis)
In
paragraph 24 of the respondent's opposing affidavit the respondent
answered as follows to the above mentioned paragraphs 23 and
24 of
Nel's affidavit:
7
take note of the contents hereof, but wish however to emphasise that
I have been advised that I need answer to all these affidavits,
which
I will do in due course in the remainder of my opposing affidavit
stated hereunder, to which the Honourable Court is with
respect
referred." [my emphasis]
4.4
It is common cause that the respondent never answered to any other
affidavits as he knew and was obliged to do. The respondent's
submission that the only affidavit in support of the forfeiture
application is that of Nel is thus factually incorrect, ill-founded
and is rejected.
5.1
In her affidavit Nicoline Nel set out that she is an advocate and a
Deputy Director of Public Prosecutions and authorized to
bring this
application.
"2
I depose to this affidavit as Nicolaas Johannes van Zyl, who deposed
to the founding affidavit in the preservation application
in terms of
section 38
of POCA, has been transferred to Cape Town and is not
available to do so." [par. 2]
3
The facts herein contained are derived from documentation at my
disposal and so, unless otherwise started or the context indicates
otherwise, within my personal knowledge and to the best of my belief
true and correct, "[my emphasis]
In
answer to par 3 the respondent in his opposing affidavit par 17
stated the following:
I
take note of the contents hereof, but will it however be argued by my
legal representatives, of which I have been advised that
it would
appear that the affidavits attested to by Nicoline Nel is derived
from documentation at her disposal and that the contents
of her whole
affidavit might therefore amount to hearsay evidence which is
inadmissible in an application like the current one,
and falls to be
stricken from the record." [my emphasis]
In
her replying affidavit Nel denied that her affidavit constituted
hear-say evidence.
5.2
This point taken by the respondent is opportunistic for the reasons
set out
hereunder. Nicolaas Johannes van Zyl, the transferred
Deputy Director of
Public Prosecutions in the founding affidavit
to the preservation order stated in
par.2 of the founding
affidavit as follows:
"The
facts deposed to are derived from both the documentation at my
disposal and from my personal knowledge and believe and
are both true
and correct unless I state to the contrary or the facts or context
indicate otherwise, "[my emphasis]
Eluanda
Geldenhuys, a captain in the South African Police Services (SAPS)
organised crime unit in paragraph 2 of her affidavit attested
to as
follows: "The facts deposed to herein are with my personal
knowledge, or are derived from documentation at my disposal
and so
within my personal knowledge and belief unless I state to the
contrary or the facts indicate otherwise, "[my emphasis]
5.3
In the very nature of a forfeiture application an affidavit from a
deponent from the Director of the NDPP or a duly designated
employee
is required [sect 48 of POCA]. Both the deputy directors of the NDPP
have relied on documents to gain personal knowledge
of the matters,
more so Nel due to the transfer of van Zyl.
Furthermore,
again from the very nature of the application; unless the employees
of the NDPP assume the active functions of the
members of the SAPS in
investigating, arresting etc, they will have to rely on documentation
and information from other sources
to depose to an affidavit. In casu
all the relevant members of SAPS filed affidavits confirming the
contents of specific paragraphs
set out in the affidavit of
Geldenhuys. The documents are inter alia in casu police dockets and
documents relevant to the seizures.
The Geldenhuys affidavit is the
affidavit setting out in detail how and under what circumstances the
seizures of the cash and vehicles
took place. It is startling that
despite the Geldenhuys affidavit also relying on documents for
personal knowledge this is not
attacked as constituting hearsay
evidence. Neither is the van Zyl affidavit attacked on this basis;
demonstrating how ill-considered
this argument was. There was no
attempt in the opposing affidavit or in argument praying that
specific paragraphs of the affidavit
be struck out as constituting
hear-say evidence; presumably because no foundation could be laid as
to specifically what evidence
constituted hear-say. In fact the
respondent's affidavit expressed his own reservations by stating
"[it] might therefore amount
to hearsay evidence/' There is no
evidence pertaining to instrumentality or other essential evidence
tendered as proof in the affidavit
of Nel not supported by affidavits
of persons with first-hand knowledge of the facts or documents. The
respondent did not place
any of the documents in dispute except in
giving them another interpretation.
6
It was argued on behalf of the respondent that the respondent's
opposing affidavit set up a bona fide factual dispute necessitating
the court to refer the matter for oral evidence.
A
summary of the affidavit of Captain E Geldenhuys and the other
affidavits sets out the applicant's factual matrix as follows in
the
affidavit of Nel:
"6.1.1
The respondent is a Nigerian National identified by the members of
the SAPS as a major illicit drug dealer in Nelspruit
and surrounding
areas. The respondent is the owner of the cafe called the "The
Woodpecker Take Aways". Intelligence sources
indicated that the
respondent heads a local syndicate under cover of the cafe. He
employs several "runners", also mostly
illegal immigrants
who do the actual selling of the drugs.
6.1.2
"His modus operandi appears to be that drugs are ordered
telephonically on cellular telephone numbers and then delivered
to
clients by the runners, who ostensibly work at the Woodpecker, in
vehicles owned by the respondent. He himself rarely, if ever,
does
actual deliveries. The runners almost invariably possess several
cellular telephones[25.3]
6.1.3
All the vehicles that from the subject matter of this application
belong to the respondent and were bought and paid for in
cash. In
addition, he owns a further three vehicles, also all bought and paid
for by the respondent in cash.[25.4]
6.1.4
On 13 January 2007 the Nelspruit SAPS held a formal police operation
against the respondent in terms of
section 252A
of the
Criminal
Procedure Act 51 of
1977
.
They used a police reservist, constable Nadene Denner (Denner) as a
police agent who phoned the respondent on his cellular telephone
and
ordered cocaine to the value of R500 from the respondent. A person
with the name of "Thulani" delivered the cocaine
to her. He
introduced himself as "the brothel of the respondent who had
sent him to sell the drugs to her. "Thulani"
used the Polo
to deliver the drugs to her and after the transaction drove away with
the vehicle. This incident took place prior
to the respondent having
acquired the Woodpecker. [25.5]
6.1..5
On 25 November 2008, in the very same morning hours, constables
Johannes Jacobus Blom (Blom) and Selby Tshepo Morema Malatji
(Malatji) of the Nelspruit SAPS Flying Squad stopped the Tazz with
three occupants inside. Daniel Madumela (Daniel), a Nigerian
citizen
and apparently the brother of the respondent, was the driver of the
Tazz. Blom and Malatji searched the three occupants
of the Tazz and
found a substantial amount of money in the possession of each
occupant. Daniel had the cash 1 amount in his wallet.
The two police
officials searched the Tazz, but did not find anything suspicious in
the vehicle. Blom however noticed that Daniel
was very nervous and
kept his hands near his groin area. He asked Daniel if he could
search him and Daniel said "not now."
Blom said that he
must then go along to the police station where they would properly
search him and took Daniel by his arm. Daniel
pushed him away and ran
off, but was chased and caught by the two police officials. Blom
immediately searched him again and found
a plastic bag in the front
part of his pants. Inside the bag Blom found sixteen small white
knotted plastic pieces which he identified
as a manner in which drug
dealers wrap the illicit drugs for sale to their clients. The
contents of the sixteen knotted plastic
bags were later forensically
analysed as cocaine.[25.6]
6.1.6
The respondent subsequently made an affidavit to the Nelspruit police
where he alleged that he had given the Tazz to Daniel,
his brother,
for business purposes and to use to drive from his home to his work
at the Woodpecker Restaurant. The cash 1 that
had been found by the
police in Daniel's possession is the "sales or takings of 24
November 2008. "[25.7]
6.1.7
On 5 December 2008 captain Nkosi (Nkosi), constable Mbokane (Mbokane)
and sergeant Mangeti Phineas Modiba (Modiba) of the
Nelspruit SAPS
Flying Squad were busy with patrol duties in Nelspruit. They saw the
Elantra and decided to stop and search it.
The Elantra however
refused to stop and a high speed chase ensued between the vehicle and
the police. While in pursuit of the vehicle,
they noticed that the
driver threw a small plastic bag out of the window. The driver, Steve
Meze (Meze) an illegal Nigerian foreigner,
eventually stopped. The
police returned to the spot where Meze had thrown the plastic bag out
of the window and found the bag that
contained five small knotted
plastic bags that each contained a powdery substance that subsequent
forensic analysis established
to be cocaine. The police also found
the cash 2 in the possession of Meze.[25.8]
6.1.8
The respondent's lawyers subsequently wrote a letter to the Nelspruit
SAPS Branch Commander. In this letter they confirmed
that both Daniel
and Meze were employed by the respondent at "The Woodpecker
Store" situated in Nelspruit The respondent
avers that he never
gave Daniel or Meze permission to commit any offence with the Tazz
and the Elantra and "he does not want
to suffer for an offence
he did not commit or knew about it." They demanded the return of
the two vehicles into the possession
of the respondent, but the
police did not release the vehicles.[25.9]
6.1.9
On 13 November 2009 inspector Rudolf Johan Frederick Mulder (Mulder)
of the SAPS Crime Intelligence Collection Unit (Counter
Narcotic
Intelligence Branch) in Pretoria arrested a major suspected drug
dealer, one Wisdom Uchechukwu Uwah (Uwah) at the Komatipoort
border
post on drug related charged. Uwah was attempted to smuggle a big
consignment of cocaine (approximately 2.5kg, with a street
value of
R1.875 million) into South Africa. (Uwah was unaware that the drugs
had in fact already been seized from the courier sent
by him to fetch
it from Guyana, South America, by officials there.)[25.10]
6.1.10
The respondent subsequently attempted to bribe Mulder to release Uwah
and had the cocaine that he believed had been seized
by Mulder, to
him. He arranged a meeting with Mulder at a guest house in Nelspruit
He used the BMW to drive to the guest house
and handed the cash 3 to
Mulder in return for the release of Uwah from police custody and the
return of the consignment of cocaine.
After the respondent handed the
cash 3 to Mulder, Mulder arrested him for contravening the provisions
of the Drug Act and contravening
the provisions of the Prevention and
Combating of Corrupt Activities Act, Act 12 of 2004. The respondent
appeared in the Nelspruit
regional court on the mentioned charges and
the criminal case against him was subsequently remanded to 18 June
2010.[25.11]
6.1.11
The respondent is the registered owner and title holder of the
BMW".[25.12]
6.1.12
As referred to above, the respondent has a further three vehicles on
his name that he bought for cash, namely an Opel Corsa,
a Toyota
Corolla and a Toyota Conquest Tazz."[25.13]
6.2
The respondent left the affidavit of Geldenhuys unanswered despite
his acknowledgment in his opposing affidavit that he was
advised that
he needs to answer thereto.[par 24] In paragraphs 46.1 and 46.2 of
his opposing affidavit he referred to the Geldenhuys
as follows:
“
I
have been privied[sic] to the affidavit deposed to by Eluanda
Geldenhuys on 21 February 201, and again wish to reiterate that
I
have in detail already answered to the contents thereof, as it was
repeated in the founding affidavit of Nicolone Nel.
Inasmuch
as the contents of the affidavit of Eulanda Geldenhuys are in
conflict with the factual allegations of my own opposing
affidavit,
and these papers, it is denied."
6.3
The respondent did not put up a bona fide factual dispute. He knew he
was obliged to respond to the detailed Geldenhuys affidavit
consisting of inter alia 32 detailed pages relating to the seizures
of the property, other vehicles registered in the name of the
respondent, his criminal record and pending civil court matter
pertaining to the Tazz and the Elantra. There is no "catch-all"
principle in our substantive or procedural law entitling a respondent
to state that
where factual allegations are in conflict with his
allegations it must be interpreted as a denial by the respondent of
the facts.
It is not open to a respondent to merely make one bold
denial and then argue it constituted a bona fide dispute of fact
rendering
it fit for referral to oral evidence.
6.4
In Nel's affidavit she summarized the facts as set out in the
Geldenhuys affidavit from paragraph 23 onwards. The respondent
elected to answer to this summary of facts. In respondents affidavit
he apparently denied that he is a Nigerian national. He admitted
that
he was the owner of the vehicles and of the Woodpecker restaurant. He
also admitted that he had a previous conviction for
dealing in drugs
and was sentenced to 10 years imprisonment. He also has a previous
conviction for escaping was and sentenced to
30 months imprisonment.
He denied that he was involved with a syndicate selling drugs. He
denied that he employed runners or that
he personally did any
deliveries of drugs to clients. He stated that he bought two vehicles
cash but paid all the other vehicles
off in instalments.
He
elected not to answer to paragraphs 25.5 of Nel's affidavit setting
out that a person called Thulani was driving his Polo vehicle
on 13
January 2007 and that person was delivering drugs (cocaine) to
Constable Denner. He also declined to answer to par 25.6 setting
out
that on 25 November 2008 one Daniel was in the respondent's Tazz and
was found with 16 small white knotted plastic pieces with
cocaine in
them. This Daniel had R4650.00 cash on him that was also seized. He
admitted that Daniel was his brother. He admitted
that Daniel could
use his Polo vehicle for business purposes and to drive from Daniel's
home to the Woodpecker where he employed
Daniel. The R4650 was the
"sa/es or takings of 24 November 2008."
To
the facts that on 5 December 2008 three members of the flying squad
stopped his Elantra after a high speed chase he answered
that he had
no knowledge thereof and did not admit it to be correct. The driver
was Steve Mez[Meze] also an illegal Nigerian. He
admitted that he did
employ Meze "at some point in time" but he never authorized
him to deal in drugs or had knowledge
that he was dealing in drugs.
Meze had thrown five small knotted plastic bags with cocaine therein
out of the window of the Elantra.
The cash amount of R1747.50 was
also found on Meze.
On
13 November 2009 Inspector Mulder[Mulder] arrested Widsom Uwah on
drug related charges; he was attempting to smuggle approximately
2.5kg of cocaine from South America to South Africa. The respondent
arranged a meeting with Mulder at a guesthouse in Nelspruit.
The
respondent drove in the BMW to this meeting where he tried to bribe
Mulder with R20 500 cash to release Uwah from police custody
and to
return the consignment of cocaine. Mulder arrested him and the matter
is pending in the Regional Court Nelspruit. He boldly
denied that he
tried to bribe Mulder without giving any facts as to what the money
was to be used for and what the purpose of the
meeting at the
guesthouse was.
In
reply to the affidavit of Denner he simply denied the correctness
thereof in as far as they are in conflict with his opposing
affidavit.
He
made the same averment pertaining to the affidavit of Van Zyl.
6.5
On the crux of the matter as set out in the Geldenhuys affidavit
there is simply no reply. This affidavit was so specific in
detail
that it begged for an answer, yet there was none. To the summary of
the facts in Nel's affidavit the answering affidavit
only set up bald
or blanket denials. It is ill-founded and bad in law to submit that
there was a genuine dispute of fact; "A
real, genuine and bona
fide dispute of fact can exist only where the court is satisfied that
the party who purports to raise the
dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
..When the facts averred are such
that the disputing party must
necessarily possess knowledge of them and be able to provide an
answer or (or countervailing evidence)
if they be true or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial the court will generally have
difficulty in finding that the
test is satisfied/' - J A in Wightman t/a JW Construction v Headfour
(Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) a ALL SA 512 at par 13
It
was argued that the respondent did in his opposing affidavit aver
that he had receipts for the sales of his hair products and
tax
returns for the Woodpecker and referring the matter to oral evidence
would afford him an opportunity to put these facts before
the court.
This argument must be rejected as being bad in law because a matter
is not referred to oral evidence in the hope to
create a dispute it
must be created on the papers before me. In his opposing affidavit it
was averred that these documents would
be handed up at the hearing
but no documents were at court to be handed up.
The
argument that a real and genuine bona fide dispute of fact was
created is so without merit on the facts and in law that it deserves
no further comment.
7.
The next question to be answered is whether the applicant on a
balance of probabilities have proven that the property was used
as
instrumentalities to facilitate the criminal offences of illegal
dealing in and/or possession of prohibited dependence producing
substances in contravention of the provisions of the Corruption Act,
and/or the proceeds of such offences.
7.1
Section 1 of POCA defined "instrumentality of an offence"
as "any property which is concerned in the commission
or
suspected commission of an offence" set out in schedule 1 of the
Act. In National Director of Public Prosecutions v R Cook
Properties
(Pty) Ltd;37 Gillespie Street Durban (Pty) Ltd and Another;
Mothiellal Seevnarayan 2004(2) SACR 208 (SCA) in par 31
the court
concluded that instrumentality of an offence "must, in our view,
be interpreted so that the link between the crime
committed and the
property is reasonably direct, and that the employment of the
property is reasonably direct, and that the employment
of the
property must be functional to the commission of the crime. By this
we mean that the property must play a reasonable direct
role in the
commission of the offence. As the term 'instrumentality itself
suggests (albeit that it is defined to extend beyond
its ordinary
meaning), the property must be instrumental in, and not merely
incidental to, the commission of the offence. For otherwise
there is
no rational connection between the deprivation of property and the
objective of the Act: The deprivation will constitute
merely an
additional penalty in relation to the crime, but without the
constitutional safeguards that are a prerequisite for the
imposition
of criminal penalties."
7.2
On the undisputed facts set out above pertaining to the Polo-, Tazz-
and Elantra vehicles I find that the vehicles were used
as
instrumentalities in committing drug related offences. The
respondent's vehicles were used by family and/or friends of the
respondent for the transportation of drugs, i.e. the employment of
the property is direct to the commission of the offences. No
explanation was proffered by the respondent why his brother or
employees had the vehicles at that time of night and what work
commitment they were fulfilling. The vehicles facilitated the
trafficking in drugs. The vehicles were instrumental in the
distribution
of the drugs for sale and not merely incidental to the
commission of the offences.
7.3
The R20 500 seized at the meeting at the guesthouse was instrumental
in committing the offence of bribery with the purpose to
facilitate
the distribution of cocaine. The R20 500 was used as an
instrumentality in the commission of the corruption offences.
The
respondent put up no version as to why the R20 500 was present at
this meeting and from where this money was generated. He
stated in
general in support of his "innocent owner" defence that the
Woodpecker Restaurant and Take Away is a lucrative
business and that
his average income from this restaurant is between R40 000 and R50
000 per month nett. He also averred that he
sold Top Virgin Hair
Products from which he derived an income of between R30 000 and R40
000 per month. The tax statements and
VAT payments as well as "each
and every receipt of the hair products [par 10.7]" were not
attached to the papers and
were not available at court. The applicant
proved on a balance of probabilities that the R20 500 was used as an
instrumentality
in committing an offence.
7.4
Proceeds of crime is defined in POCA as "any property or any
service advantage, benefit or reward which was derived, received
or
retained, activity carried on by any person, and includes any
property representing property so derived."
Property
is "money or any other movable, immovable, corporeal or
incorporeal thing and includes any rights, privileges, claims
and
securities and any interest therein and all proceeds thereof."
The
two stashes of cash found when seizing the Tazz and Elantra
represented the proceeds of the respondent's unlawful drug
activities.
The cash 1 was seized from the respondent's brother's
wallet and cash 2 from Meze. There is no evidence from Meze or the
respondent's
brother that the money did belong to the respondent as
income generated through the Woodpecker or the sale of hair products.
In
both situations drugs were found and on all the surrounding
circumstances the applicant has proven on a balance of probabilities
that the cash was the proceeds of the illicit drug offences. There
were no facts set up by the respondent that prevents the applicant
from being granted a final order;
Plascon
Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623
(A).
7.5
It is common cause that the BMW vehicle was bought from Dennis Motors
Sales CC in Pinetown for R130 000. Whether he bought it
in two
instalments in cash or one instalment in cash does not affect the
probabilities; he could afford to pay R130 000 cash within
60 days.
It is also not in dispute that the applicant bought 5 vehicles during
the years 2008-2009. It is also not in dispute that
the applicant
bought the Elantra and Tazz cash. It is not in dispute that he owned
7 vehicles and bought them in this period. I
have to agree with the
applicant's submissions that in the light of the respondent's history
in the illicit drug dealing business
it is probable that all four the
seized vehicles were bought with the proceeds of crime. The version
of the applicant is uncontested
in that the respondent did not
attempt to set out with what lawful income he bought the BMW and the
other vehicles.
8.
Counsel on behalf of the respondent did not argue that the respondent
did on a balance of probabilities prove his 'innocent owner"
defence; he instead relied on proportionality. This is no surprise
because the respondent did not in his opposition bring an application
in terms of section 48(4)(1)(b) of POCA for the exclusion of his
alleged interest regarding the property and it needs no further
address-The National Director of Prosecutions and E J van der Merwe
and Another Case no A338/2110 in the Western Cape High Court
par 18.
9.
In performing the proportionality enquiry I have to consider the
following relevant factors;
9.1
"Whether the property is integral to the commission of the
crime;
9.2
Whether the forfeiture would prevent further commission of the
offence and its social consequences;
9.3
The availability of the innocent owner defence;
9.4
The nature and use of the property; and
9.5
The effect of the forfeiture of the property on its owner".-Prophet
and
The NDPP 2007(6) SA 169 (CC) par 58.
This
enquiry always entails a weighing up of the severity of the
interference with individual rights to property against the extent
to
which the property was used for the purposes of the commission of the
offence. The property was integral to the commission of
the offences.
The vehicles were used as means of transporting the drugs for dealing
therein. The cash was the proceeds of these
crimes. The forfeiture of
the property would impact on the modus operandi of the respondent in
him using runners in his vehicles
to commit the offences. The owner
still has three other vehicles and the effect of the forfeiture does
not leave the respondent
without transport or means. I find the
forfeiture of the property to be proportional.
10.
I accordingly make the attached order "X" an order of
court.
S.
Potterill Judge of the High Court
Matter
heard on: 22 October 2012
Delivered
on: 29 October 2012
Attorney
for the Applicant:
THE
STATE ATTORNEY
8th
FLOOR, OLD MUTUAL CENTRE
167
ANDRIES STREET
PRETORIA
REF:
1307/2010/Z52
Attorney
for the Respondent:
SHAI
& MNGOMEZULU INC c/o COUZYN HERTZOG & HORAK
321
MIDDEL STREET
BROOKLYN
PRETORIA
REF:
KOTSOKOANE/RM/SHA19/0214
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(HIGH
COURT OF SOUTH AFRICA)
Case
Number: 13842/10
In
the application of:
The
National Director of Public Prosecutions APPLICANT
and
Emeka
Hyicenth Madumela RESPONDENT
AN
APPLICATION IN TERMS OF
SECTION 48
OF THE
PREVENTION OF ORGANISED
CRIME ACT (POCA
)
In
re: Volkswagen Polo with registration number DRG 212 MP; Toyota Tazz
with registration number DXJ 052 MP; cash to the amount
of R4 650;
Hyundai Elantra with registration number DSG 061 MP; cash to the
amount of R1 747.50; BMW with registration number DXJ
056 MP and cash
to the amount of R20 500.
COURT
ORDER
Before
the Honourable Potteril, J:
Having
read the Notice of Motion, affidavits and annexures thereto and
having heard counsel,
IT
IS HEREBY ORDERED THAT: The Property
1
The property concerned (the property) are:
1.1
a 2003 Volkswagen Polo with registration number DRG 212 MP and
vehicle identification number CDG997S;
1.2
a 2005 Toyota Tazz with registration number DXJ 052 MP and vehicle
identification number GDC245S;
1.3
Cash in the amount of R4 650.00 (four thousand six hundred and fifty
rand);
1.4
a 2001 Hyundai Elantra with registration number DSG 061 MP and
vehicle identification number FYV437W;
1.5
Cash in the amount of R1747.50 (one thousand seven hundred and fourty
seven rand and fifty cents);
1.6
a 2004 BMW 120IM sedan with registration number DXJ 056 MP and
vehicle identification number DMM690S and
1.7
cash in the amount of R20 500.00 (twenty thousand five hundred rand).
2.
An order is granted in terms of the provisions of section 50 of the
Prevention of Organised Crime Act 121 of 1998 (the POCA)
declaring
forfeit to the State the property mentioned in paragraph 1 above,
presently subject to a preservation of property order
granted under
the above case number on 10 March 2010.
3.The
Registrar of this Court or the State Attorney's office, upon the
Registrar's request, is directed to publish a notice of this
order in
the Government Gazette as soon as practicable after the order is
made.
4.
The property shall vest in the State upon the granting of the order.
5.
The appointment of a curator bonis is dispensed with.
6.
Upon the expiry of 45 days after notice of this order is published in
the Government Gazette, Mbali Nhlangothi, a duly authorised
employee
of the Asset Forfeiture Unit, is authorised to:
6.1
Assume control of the property and take it into her custody;
6.2
Sell all the vehicles mentioned above at best, either by public
auction or private treaty;
6.3
Sign all documentation necessary to effect the sale, transfer and
registration of the mentioned vehicles and
6.4
Pay the proceeds of the sale of the mentioned vehicles, less any
commissions and incidental expenses occasioned by the sale
and all
the cash amounts mentioned in paragraph 1 above into the Criminal
Asset Recovery Account established under section 63 of
the POCA,
account number 80303056 held at the South African Reserve Bank,
Vermeulen Street, Pretoria.
7.
Any person whose interest in the property concerned is affected by
the forfeiture order, may within 20 days after he or she has
acquired
knowledge of such order, set the matter down for variation or
rescission by the Court.
BY
ORDER OF THE COURT
REGISTRAR
OF THE ABOVE HIGH COURT
DATE: