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[2009] ZAGPPHC 166
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National Director of Public Prosecutions v Maisela (28844/09) [2009] ZAGPPHC 166 (17 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG HIGH COURT, PRETORIA)
REPORTABLE
HANDED
DOWN: 17 DECEMBER 2009
CASE
NO: 28844/09
IN
THE MATTER OF:
NATIONAL
DIRECTOR PUBLIC PROSECUTIONS
APPLICANT
AND
ELIOT
MAISELA RESPONDENT
JUDGMENT
OMAR.
AJ
[1]
This is an application for the forfeiture of a blue Toyota Hilux
(bakkie) motor vehicle with registration number 222 EMM NW
("the
vehicle") brought in terms of section 48(1) of the Prevention of
Organised Crime Act, 121 of'998 ("the Act').
[2]
The applicant obtained a preservation order in terms of section 38 of
the Act on the 19
th
of May 2009 on an
ex
parte
application
before this court. The application was supported by affidavits from
PRIYADARSHNEE BISESWAR, MOHUBE JOSIAS MADIGA, TSEPO
MOREMI, JANNEL
NEL AND MOSTERT VAN SCHOOR.
[3]
The respondent being the owner of the blue Toyota Hilux motor vehicle
is opposing the making of the forfeiture order in respect
of his
motor vehicle.
[4]
The respondent duly filed a notice to oppose the abovementioned
preservation order in terms of section 39(3) of the Act which
was
accompanied by an affidavit deposed to by the respondent.
[5]
The applicant duly published the Preservation order in the Government
Gazette on 29 May 2009 and also served a copy of the application
for
a preservation order on the respondent on 20 May
2009.
[6]
The applicant subsequently issued and filed a Notice of Application
for a forfeiture order in respect of the vehicle together
with the
required founding and supporting affidavit and the respondent duly
filed a further opposing affidavit.
[7]
The applicant contends that the property in question is an
instrumentality of an offence contemplated in Part 1 of section 4
of
Chapter 2 of the
Prevention and Combating of Corrupt Activities Act,
12 of 2004
.
[8]
The respondent opposes the granting of the forfeiture order on the
ground that the vehicle in question is not an instrumentality
of an
offence, and in the alternative seeks an order excluding the property
from the operation of any forfeiture order.
[9]
The issue to be determined therefore is whether on a balance of
probabilities the court can find that the vehicle in question
is an
instrumentality of an offence referred to above.
[10]
The onus is on the applicant to satisfy the court that it has
established on a balance of probabilities that the vehicle was
used
as an instrumentality of the crime referred to above.
[11]
The applicant alleges that, as a result of the respondents profile,
influence and contact within the Department of Agriculture,
Conservation, Environmental and Rural Development in the North West
Province, he was in a unique position to corruptly facilitate
the
approval of the Record of Decision (which is a public document issued
after a basic assessment and scoping processes are done
on the
portion of land to be developed.) which was
needed
by the directors of JACARES (PTY) LTD (the
complainants)
in order to be authorised to establish a health resort and a hotel an
plot 18 of the farm Syferfontein 483 JQ within
the Madibeng Local
Municipality in the North West Province.
The
respondent used the vehicle in question as an instrumentality to
facilitate the commission of the offence of corruption and
to this
end travelled in this vehicle on numerous occasions.
[12]
Briefly, the applicant alleges that the respondent used the vehicle
on the following days and in the following manner:
On
27 March 2009 he travelled from his house to meet with the
complainants Mr. Nel and Mr Van Schoor in Hartebeespoort. At the
meeting he told them that he had instructed to finalise the
documents in relation to their application. He also indirectly
requested a sum of money as he asked them what he should tell others
when he gets to his office. The next day he sent a text message
to
Mr. Nel informing him to put together an amount of R1,5 million
because he needed to persuade two of his colleagues.
On
the morning of 30 March 2009, he travelled to Rustenburg to meet Mr
Tshepo Moremi to fetch the record of decision.
On
the afternoon of 30 March 2009, he travelled from Hartebeespoort dam
to Wonderpark Shopping centre in Pretoria where the complainants
and
him agreed that he will accept R1 million instead of R1,5 million.
On
2 April 2009 he travelled from - Hartebeespoort to Pretoria North to
further negotiate with the complainants.
On
3 April 2009, he travelled to Pretoria North to deliver the record
of decision and fetch the amount of R1 million. On this
day he was
arrested by police officers who had arranged for an entrapment and a
bag full of papers with only R20 000,00 on top
were on the scene.
[13]
Further, the applicant denied that the vehicle is merely incidental
to the commission of the offence, and stated that:
a)
the use of the vehicle in the furtherance of respondents unlawful
activities was deliberate as he had a choice between this vehicle
and
another more expensive car an X500 BMW of which he is also the owner.
the
use of the vehicle in the furtherance of this unlawful activities
was planned. He was able to get to various destinations
without the
risk associated with public transport, and the vehicle provided a
secure method of transport to convey the supposedly
large sum of
money and also to deliver the Record of Decision.
the
vehicle was important to the success of the unlawful activity as the
respondent had used the vehicle to travel to various meetings
which
facilitated the commissioning of his unlawful activities.
the
vehicle was used on numerous occasions to facilitate the respondents
unlawful activities.
the
vehicle was a necessary tool in the commission of the offence
as the respondent resides in
Hartebeespoort
Dam where the availability of public or alternative transport is
extremely limited. He used the vehicle to attend
all the "corrupt
meetings", to deliver the Record of Decision and also attended
to convey the sum of money with it. The
commission of the offence may
not have been possible without the vehicle in this matter.
f)
The respondent was able to get to the various destinations at his
convenience and without the inconvenience of using alternative
and
more risky forms of transport.
[14]
The respondent alleges that at no stage was the vehicle used as an
instrumentality during the committal of a schedule 1 offence.
The use
of the vehicle, as alleged by the applicant, fails to provide a
foundation for the committal of a schedule 1 offence.
The
submission by the applicant that:
a)
the vehicle was used for the sake of convenience,
the
vehicle was used for the sake of minimising the risk of public
transport.
the
vehicle was used as a secure method of conveying a large sum of
money and valuable documents,
does
not qualify it as an instrumentality of an offence.
[15]
The applicant failed to provide any evidence:
as
to which "valuable documents" would have been conveyed in
the vehicle;
as
to support an argument that the vehicle provided more convenience or
safety than any other vehicle, and as such failed to provide
evidence as to why the vehicle was specifically important to the
success of the committal of the alleged crime.
as
to support an argument that the alleged offence could not have been
committed without the use of the vehicle;
as
to support an argument that the vehicle was specifically adapted or
equipped to facilitate the alleged committal of the offence;
to
support an argument that the use of the vehicle was deliberate and
planned with a view to commit a schedule 1 offence.
[16]
The respondent further alleges that he is the owner of Elegant Mags
and Tyres in Brits and that although the vehicle is used
for personal
uses, it is used mainly in his business in order to convey and
transport deliveries which includes the purchase and
delivery of
tools, parts, documents, meetings and other aspects related to the
everyday running of such a business.
As
a result of the seizure of his vehicle he is prejudiced and suffering
severe financial losses due to the fact that he has to
make alternate
arrangements for orders and deliveries.
[17]
It was contended by counsel for the respondent that the respondent
does not deny that he met with the complainants, but that
the
complainants discussed other business options with him and denies any
involvement in any corrupt activities. The meeting on
27 March 2009,
on the own version of Supt. Madiga served little purpose and it is in
clear contradiction to the applicants founding
affidavit that this
meeting was to further a crime. Neither the affidavit of Mr. Nel or
Mr Van Schoor provided a basis for the
allegation made by the
applicant. Accordingly, the applicant failed to prove why the use of
the vehicle on 27 March 2009 would
have acted as an instrumentality
for the committal of a crime. No mention is made by any of the role
players that a crime was being
committed or why the conclusion is
made that a crime was being committed.
The
applicant failed to show on a balance of probabilities, that the
meeting on 30 March 2000 in Rustenburg with Mr Moremi was in
furtherance of a schedule 1 offence. It is evident from Mr Moremi's
affidavit that there exists no basis for such a conclusion
and as
such on the applicants own version, there is no basis for the making
of a submission that the respondent travelled to Rustenburg
while
using the vehicle as an instrumentality of a crime.
With
regard to the meeting on 30 March 2009 the applicant relies on the
supporting affidavit or Mr J Nel and alleges that the respondent
would have demanded R1,5 million per sms message already sent on 28
March 2009. Mr Nel submits that the amount was requested in
order for
the respondent to provide him with the Record of Decision. It is not
evident from Mr Nel's affidavit that the amount
would have been in
order for the respondent to facilitate the Record of Decision, should
this indeed have been the case, one would
have expected the
respondent to have met with Mr Moremi prior to this offer, or in the
least for Mr. Nel to make a submission to
the effect that this amount
related to the facilitating of the Record of Decision.
Accordingly,
there is no basis contained in the applicant's papers to indicate
that the respondent would specifically have used
the vehicle in the
furthering of a crime. Even if this meeting might have related to the
furthering of a crime, no indication is
provided by the applicant why
the vehicle was specific to such a crime.
With
regard to the use of the vehicle on 2 April 2009, had the respondent
indeed been busy with corrupt activities as alleged by
the applicant,
the presence of police officials would have alerted him to the fact
that the complainants were involved with the
police. Mr Nel indicates
that the respondent was looking around and seemed uncomfortable and
even voiced his concern. This clearly
does not fit in with the
picture of someone who is committing a crime, and who is aware of
police being present on the scene. Why
the respondent would then have
proceeded with the "illegal" transaction seems devoid of
all logic.
[18]
In
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd
2004
(2) SACR 208
(SCA).
it
was held that where a forfeiture order is sought, the court
undertakes a two-stage enquiry. First, it ascertains whether the
property in issue was an instrumentality of an offence. Once that has
been confirmed the property is liable to forfeiture and the
court
then proceeds to the second stage of the enquiry, viz, whether
certain interests in the property would be excluded from the
operation of the forfeiture order.
In
interpreting the term "instrumentality", the court held
that the connection must be such "that the link between
the
crime committed and the property is reasonably direct, and that the
employment of the property must be functional to the commission
of
the crime. By this we mean that the property must play a reasonably
direct role in the commission of the offence. In real or
substantial
senses the property must facilitate or make possible the commission
of the offence."
[19]
In
Singh
v NDPP
2007
(3) All SA 510
(SCA) it was held that:
(a)
there must be reasonable direct link between the property and its
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.
[20]
It is evident from Mr Moremi's affidavit that the respondent did not
corruptly facilitate the approval of the Record of Decision
which is
a public document and any interested and/or affected party can get
access to this document. The department does not charge
any fee for
processing nor for releasing the Record of Decision. The respondent
approached Mr Moremi on behalf of a friend/partner
regarding the
progress of the application. The respondent did not request any
favours from Mr Moremi nor any special treatment
of the matter.
[21]
It is clear from the founding papers that the applicant alleges that
the vehicle was used as an instrumentality of a crime
referred to
above, namely corruption.
[22]
The court had to consider the various allegations by the applicant
regarding the use of the vehicle, which the applicant denied
was
merely incidental to the commission of the offence.
[23]
I am of the view, that it is highly unlikely that the respondent, if
he had a choice to use his more expensive BMW motor vehicle
or the
vehicle in question, would actually use his expensive X500 BMW motor
vehicle for his intended purposes. It would be impractical
for the
respondent to use his X500 BMW motor vehicle as it would be heavier
on fuel and more expensive to maintain than the vehicle
used. It
would be more viable for the respondent to use the vehicle in
question instead of this more expensive and uneconomical
X500 BMW
motor vehicle.
[24]
There is to my mind, no logical reason why the respondent would
actually plan to use this particular vehicle in question as
any
vehicle would have sufficed for his intended purposes and the vehicle
in question was at his disposal during the instances
when he used the
vehicle.
[25]
The use of the vehicle in question, in my view, has no reasonably
direct link to the alleged crime committed or the success
of alleged
unlawful activity of the respondent or in the facilitation of his
alleged unlawful activities. If this vehicle was not
available or at
his disposal, the respondent could have borrowed another vehicle or
used public transport and that would have no
link on his alleged
unlawful activities.
[26]
There was nothing special about the vehicle in question in order to
facilitate or make possible the commission of the offence.
The
vehicle was not specifically adapted or equipped to facilitate the
alleged committal of the offence.
[27]
It is so that the respondent was able to get to the various
destinations at his convenience and without the inconvenience of
using alternative forms of transport. It is my view that this is
precisely what the vehicle was used for by the respondent-a
convenient
method of transport.
[28]
I agree with the submission by the respondent's counsel that, should
the vehicle be taken out of the process involved, a crime
could
still have been committed. In such instance another vehicle or public
transport could have been used.
[29]
I have considered the totality of the circumstances of this case and
1
find
that the use of the vehicle in question was incidental to the
commission of the alleged offence.
[30]
I have not been convinced by the applicant that the vehicle was used
as an instrumentality during the committal of a schedule
1
offence.
For
these reasons, the following order is made:
The
preservation order is set aside.
The
application for the forfeiture of the blue Toyota Hilux motor vehicle
with registration no 222 EMM NW is dismissed.
The
applicant is ordered to pay the cost of this application as well as
the costs relating to the preservation order.