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[2009] ZAGPPHC 189
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National Director of Public Prosecutions v Boroto (56751/08) [2009] ZAGPPHC 189 (7 May 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE
NO: 56751/08
DATE:
07/05/2009
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
............................
APPLICANT
AND
CHARLES
BOROTO
....................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA,
J.,
[1]
The applicant seeks an order in terms of section 53 of the Prevention
of Organized Crime Act, NO 121 of 1998, (POCA ACT) declaring
forfeit
to the State the Nissan Hardbody with registration number NGR156 GP
(“the property”) which is presently subject
to a
preservation order granted by this Court under the above case number
on 5 December 2008, with ancillary relief.
[2]
The basis of the application is that the property concerned is an
instrumentality of the offence listed in Schedule 1 of the
Prevention
of Organized Crime Act, No 1221 of 1998.
BACKGROUND
[3]
The respondent was in the employ of University of Limpopo, Medunsa
Campus as a cleaner of manholes. In the morning of 3 July
2008 the
respondent drove in his motor vehicle with registration number NGR156
GP towards the exit gate at the University. He was
approached by two
security guards. The respondent, upon seeing the two guards, stopped
next to the road in front of the gate, reversed
and made a u-tum and
attempted to drive away. The two security guards followed him and
caught up with the respondent next to a
fence. When his motor vehicle
was searched, two manhole covers were found. He was then arrested.
[4]
The respondent was charged with the theft of two manhole covers. He
subsequently pleaded guilty to the theft of the two manhole
covers.
He was sentenced to six months imprisonment or a fine of R3000, 00
wholly suspended for three years.
[5]
The applicant obtained a preservation order in respect of the
aforesaid motor vehicle on 5 December 2008.
[6]
The applicant on 17 February 2008 then issued this application with
the Registrar of this Court under the same case number in
terms of
which the preservation order was obtained. The relevant notice of
motion, the founding affidavit and the preservation
court order was
served at the place of residence of the respondent, although not
personally
1
.
[7]
On the 3 February 2008 the respondent filed a notice to oppose, which
states the names of the respondent and further states
indicates that
the respondent will accept service of all notices and pleadings in
this matter at the address mentioned therein
below, which is the
address of his legal representatives.
[8]
On 13 March 2008 the respondent filed yet another notice of
opposition together with the affidavit of the respondent to be used
in support of the opposition of the forfeiture.
[9]
In his affidavit the respondent states that he worked for MEDUNSA as
a cleaner from 1995 to 2007 when he took a voluntary retirement
package. He says that he received an amount of R156677.78 from
MEDUNSA when he left his employment. He purchased the vehicle in
issue for an amount if R51 000.00. He says that he bought the motor
vehicle for purpose of generating income by means of transporting
goods and furniture for people.
[10]
He says further that on the 3 July 2007 he went to MEDUNSA to collect
his IRP5 but could not find the responsible Human Resource
official.
When he left the building he saw the manhole covers next to a big
dustbin. Whilst he worked at MEDUNSA, the residents
would regularly
leave discarded stuff for him to take. When he saw the manhole next
to the dustbin he presumed that these were
being thrown away. He then
took these as he knew that he could sell. He had hoped that with the
money out of the sale of the manhole
covers he could buy immune
booster for both his son and himself as they are both HIV positive.
He says that he knew that he should
have asked for permission to take
these manhole covers and that it was wrong not to do so. He denies
that the motor vehicle is
an instrumentality of the offence. He
further says that he did not need his motor vehicle to transport the
manhole covers because
he could have easily carried these himself.
[11]
He further stated that he needs the motor vehicle to generate income
for himself and his minor child.
[12]
The State has raised three points in limine. The first point raised
is that the respondent failed to comply with sections 39(3)
and 49(1)
of POCA. As I have already pointed out herein above, appearance to
oppose, filed on the 3 February 2008 is the customary
notice to
oppose filed by respondents in ordinary motion proceedings. This
notice is not in terms of s39(3) in that it is not accompanied
with
an affidavit setting out the interest of the respondent in the
property and the grounds upon which the forfeiture is being
opposed.
This notice to oppose was served inside the 14 day period.
[13]
Although the subsequent notice to oppose that was filed on 13 March
2008, complies with the provisions of rule 39(3) in that
it was
accompanied by the affidavit of the respondent, It was however filed
out of time. That was not the only problem.
[14]
The further point in limine taken is that the respondent, having been
late with the notice to oppose and his affidavit, has
not complied
with the provisions of section 49(4) of POCA. This section provides
that a person, who has entered an appearance to
oppose out of time,
must apply to Court for leave to enter such an appearance to oppose.
AD
CONDONATION
[15]
At hearing of the matter, the applicant brought an application in
terms of section 49 for condonation for the late filing of
the notice
of opposition and non compliance of section 39(3) and (4).
[16]
The notice of intention to oppose that was filed on behalf of the
respondent on 3 January 2009 was certainly not in compliance
with
section 39(5)
2
of POCA in that it was not accompanied with an affidavit wherein the
interest of the respondent in the relevant property is stated
and
also his reasons upon which he relies to resist the forfeiture
application.
[17]
However, the subsequent affidavit of 13 March 2009 did comply with
the provisions of section 39(5), albeit the fact that it
was out of
time.
[18]
Section 49(1) of POCA,
3
in my view, grants the Court a discretion to condone on good cause,
failure to enter an appearance to defend within the fourteen
day
period prescribed by s39 (3) of the Act, provided
4
:
(a)
such application for condonation is brought before judgment for
forfeiture is given; and
(b)
the applicant shows that he has sufficient reason for his failure to
enter appearance to oppose; and
(c)
he has an interest in such property forming the subject of the
forfeiture application.
[19]
The reason advanced for the failure to timeously enter an appearance
to defend is described by one Sarel Langevleldt, who is
an attorney
in the employ of the Legal Aid Board’s Civil Unit of the
Pretoria Justice Centre. He states that the respondent
approached the
Legal Aid Board on 21 January 2009. He explains further that the
policy of the Legal Aid Board is that civil applications
are
processed and before assisting an applicant approval is necessary in
accordance with the Legal Aid guidelines. He further states
that on
10 February 2009 Advocate Elizabeth Nieuwoudt consulted with the
Respondent and requested the Respondent to obtain information
from
Old Mutual and Capitec Bank. After the respondent had obtained the
relevant information, he consulted with counsel and then
the opposing
affidavit was drafted and signed on 4 March 2009.
[20]
The Court has a wide discretion to condone failure to comply with
prescriptive, such as in casu. In this regard vide Erasmus
Superior
Court Practice , the learned authors said
5
:
“The court has wide discretion in evaluating ‘good cause’
in order to ensure that justice is done. For this
reason the courts,
have refrained from attempting to frame an exhaustive definition of
what would constitute sufficient cause to
justify the grant of an
indulgence for any attempt to do so would hamper the exercise of the
discretion.”
[21]
In the matter of Regal African Superslate (Pty) Ltd
6
the Appellate Court said: “ Condonation may be granted under
Rule 13 if the applicant shows sufficient cause to justify this
Court
in granting the indulgence sought. (Cairns’ Executors v Gaarn,
1912 A.D. 1181
; Rose and Another v Alpha Secretaries
1947 (4) SA 511
(AD) at p517,518). An exhaustive definition of what would constitute
sufficient cause has never been attempted
‘
would
hamper the exercise of a discretion which the rules have purposely
made very extensive and which it is highly desirable not
to abridge'
Cairn’s
case at pi 86). In Meintjies v H,D Combrink (Edms) Bpk1961 (1) SA 262
A.D.), the learned Chief justice at P264 pointed
out that although
the power to condone a failure to comply with a procedural rule
within the prescribed period will be exercised
only upon a sufficient
and satisfactory grounds being shown, an application such as the
present will receive favourable consideration
because a Court is
hesitant to allow a party to forfeit the enforcement of a right by
reason of non-compliance with such a Rule
(See also Phillips v
Directeur vir Sensus,
1959 (3) SA 370
.D.) at p374).
It
seems to me that the delay in the present case was due entirely to
the neglect of applicant’s attorney which neglect should
not,
in my view, in the circumstances of this case, debar the applicant,
who himself was in no way to blame, from relief.(Cf. Rose
and Another
v Alpha Secretaries Ltd., supra).”
[22]
In casu, the respondent approached the Legal Aid Board for
assistance. It is a well known fact, which I take judicial knowledge
off, that the Legal Aid Board is always slow in approving
applications for assistance. This is understandable having regard to
the number of such applications it has to process. Mr. Sarel
Langeveldt. has explained that an approval had first to be made
before
the respondent could be assisted. It does not seem, in my
view, that the procedural flaws on the part of the respondent could
be
placed squarely at the door step of the respondent.
[23]
In considering whether I must exercise my discretion in favour of the
respondent, I must also have regard to the fact that
the relevant
statute (POCA Act) in casu, is invasive on the a respondent’s
constitutionally enshrined right to property
7
.
Were I to refuse the application for condonation, the forfeiture
would be as good being arbitrary, vide also Singh v National
Director
of Public Prosecutions
2007 (3) ALL SA 510
(SCA) at 514e where Theron
AJA stated that: “Considering that deprivation of property is
arbitrary when there is insufficient
reason for deprivation of
property.”
[24]
I must also have regard to the fact that the consequence of refusal
to condone the lateness of the procedural steps of the
respondent
would also violate the respondent’s constitutionally enshrined
right to access
8
to Court.
[25]
Since POCA, by its very draconian and its invasive nature, in
particular impacting on two constitutionally enshrined rights,
in
terms of s25 and s34, the Courts, in considering whether or not to
exercise its discretion, must, in my view, adopt a much more
liberal
approach. The court must also have regard to the eventual
consequences of a refusal to condone the non-compliance. In casu
the
respondent would forfeit his motor vehicle without having been
afforded an opportunity to put his case before the court, especially
where the non-compliance is not so much as the result of his doing.
[26]
Having regard to what I have stated herein above, the explanation
advanced, the invasive nature of the relevant statute applicable
in
casu, there are sufficient reasons which warrant the exercise of the
discretion of this Court in favour of the respondent, to
permit the
respondent to participate in these proceedings. These are the reasons
for my having granted the condonation and permitted
the respondent to
participate in these proceedings.
AD
FORFEITURE
[27]
The issue to be consideredherein, is whether the motor vehicle
involved herein is an instrumentality of the theft of the manhole
covers. The respondent in his answering affidavit states denies that
the motor vehicle is an instrument of theft. He says that
he did not
need the motor vehicle to commit the theft. He says that he could
have carried the manhole without the motor vehicle.
[28]
In casu it has been contended on behalf of the NDPP that the motor
vehicle in casu was closely associated with the commission
of the
offence. It has also been emphasized on behalf of the applicant that
the purposes of the covers stolen by the respondent
from MEDUNSA is
to prevent vehicles from damages by water drains on the campus on the
ground of the University. It was also emphasized
that the University
has suffered, because it has to pay money for expensive surveillance
equipment and has to pay insurance premiums
to protect its property.
It is submitted that the motor vehicle of the respondent made it
possible for him to commit the crime
he was charged with. It is
further contended that forfeiture of the motor vehicle will deter the
respondent and other members in
the community from committing crimes
and using their property as instruments to commit an offence.
[29]
The question of instrumentality has been a subject of various decided
cases. What emerges from most of the cases, in my view,
is that,
there is no particular definition that it can be said fits all. The
question of materiality, in my view, must be decided
on a case by
case basis, premised on the peculiar circumstances of a particular
the case. 1 am of the view that it is also necessary
to have regard
to the offence concerned, the potential pecuniary gain involved as
well as the property involved.
[31]
In the matter of Singh v National Director of Prosecutions {supra) at
514e- 514515 b it Theron AJA stated: “It is accordingly
held
that; (a) there must be a reasonably direct link between the property
and the criminal use and (b) the use of the property
must be
functional to the commission of the crime and that the property must
substantially facilitate, make possible or be instrumental
in, and
not incidental to, the commission of the offence.”
[32]
The words instrumentality were held to mean that “the property
must play a reasonable direct role in the commission of
the offence.
In a real or substantial sense the property must facilitate or make
possible the commission of the offence. As the
term ‘instrumentality’
itself suggests (albeit that it is defines 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.”
[33]
With regard to proportionality, the respondent was sentenced to a
fine of 6 months or R3000, 00 wholly suspended. In my view,
the
sentence imposed, by the very nature of it being wholly suspended,
and the nominal fine imposed, it cannot be said that it
would deter
others from committing crime
9
.
I therefore, find that there is no rational connection between the
intended forfeiture and the sentence. If the forfeiture envisaged
does not advance the purpose of the POCA, then such forfeiture will
be arbitrary and unconstitutional
10
.
[34]
The respondent has stated that he needs the motor vehicle for
purposes of generating income for himself and his minor child.
He has
also stated that he and his son are HIV positive. Having regard to
the health of the respondent, which is not disputed,
and the purpose
of the use of the motor vehicle, coupled with the sentence imposed,
the cumulative effect of all these facts, in
my mind, justify that in
the exercise of my discretion, I should grant the order sought, even
if I were to find that the motor
vehicle is closely associated with
the commission of the offence, and I therefore hold as such. In the
light hereof, I find it
not necessary to interrogate whether the
motor vehicle is closely associated with the commission of the
offence.
[35]
In the result I am of the view that the application should be
dismissed with costs. It is trite that cost follow the event.
[36.]
Consequently I make the following order:
(a)
That the application is dismissed;
(b)
That the applicant must pay the costs of the application, inclusive
the costs of the condonation application, on a party and
party scale.
N.M
MAVUNDLA
JUDGE
OF THE COURT
HEARD
ON THE: 23 /04 /2009
DATE
OF JUDGEMENT: 07 /05 /2009
APPLICANT’S
ATT: STATE ATTORNEY
APPLICANT’S
ADV: MS. M BOONZAIER
FIRST
RESPONDENTS’ ATT: PRETORIA JUSTICE CENTRE.
FIRST
RESPONDETS’ ADV: MS. STEENEKAMP
1
Paginated page 30 is the return of service of the Deputy Sheriff
which indicates the manner of service "by proper service
of a
copy of the DRAFT ORDER was properly served upon Dorah Diremelo
(Giri friend) at the place of RESIDENCE of the Respondent,
a person
at the above address, apparently not less than 16 years of age,
apparently in charge of the premises at the time of
service, after
explaining the nature and contents thereof to the said person
served.”
2
'
POCA (Act 121 of 1998 provides inter alia:
“39(5) An appearance under subsection (3) shall contain full
particulars of the
chosen address for the delivery of documents
concerning further proceedings under this Chapter and shall be
accompanied by an
affidavit stating-
(a) full particulars of the identity
the person entering the appearance:
(b) the nature and extent of his or
her interest in the property concerned; and
(c) the basis of the defence upon
which he or she intends to rely in opposing a forfeiture order or
applying for the exclusion
of his or her interest from the operation
thereof.
3
S 49 of Prevention of Organized Crime Act.
4
S49(3) The High Court may grant an applicant an applicant referred
to in subsection (1) leave to enter an appearance in terms
of
section 39(3) within the period which the Court deems appropriate,
if the Court is satisfied on good cause shown that such
applicant-
(a) has for sufficient reasons failed
to enter an appearance in terms of section 39(3); and
(b) has an interest in the property
which is subject to the preservation of property order.
5
At B-204 [Service 29. 2007], vide also Wahl v
Prinswil Beleggings (Edms) Bpk (1(SA).
6
1962 (3) SA 18
at 23C-D
7
The
Constitution of the Republic of South Africa Act, No 108 of 1996
provides inter alia:
“ 25 Propertv-(l) No one may be
deprived of property except in terms of law of general application,
and no law may permit
arbitrary deprivation of property.
8
The
Constitution (supra) provides, inter alia, that:
“Access to courts S34 Everyone
has the right to have any dispute that can be resolved by the
application of the law in a
fair public hearing before a court or
where appropriate another independent and impartial tribunal or
forum”
9
Vide
the unreported judgment of in NDPP v Johan Swart (SECPD) Case No.
801/03 Leach J said “ (I
must
say I find a fine of R5 000, 00 for the illegal possession of
abalone having a value of R160 000, 00 is hardly likely to
act as a
deterrent...”)
Where
the accused
10
Vide Singh v National Director
of Pubiic Prosecutions (supra) at 515a-b where the Court said:
“
Cook
Properties also held that forfeiture would be unconstitutional if it
did not rationally advance theobjectives of POCA because
such
forfeiture was ‘not contemplated by or permitted under the
Act.”