National Director of Public Prosecutions v Braun and Another (11244/06) [2006] ZAWCHC 60; 2007 (4) SA 72 (C); 2007 (1) SACR 556 (C) (22 December 2006)

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[2006] ZAWCHC 60
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National Director of Public Prosecutions v Braun and Another (11244/06) [2006] ZAWCHC 60; 2007 (4) SA 72 (C); 2007 (1) SACR 556 (C) (22 December 2006)

REPORTABLE
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE
NO: 11244 / 2006
In
the matter between:
THE
NATIONAL DIRECTOR
OF
PUBLIC PROSECUTIONS
Applicant
and
WERNER BRAUN
First
Respondent
VILLABRAUN (PTY) LTD
Second
Respondent
In re: Erf 1084,
Bakkershoogte, situated in the Helderberg Municipality, Stellenbosch
Division, Western Province.
JUDGMENT : 22 DECEMBER 2006
BOZALEK,
J:
[1] In February 2006 the applicant
sought and obtained, on an urgent
ex parte
basis, an order in
terms of s 38(1) of the Prevention of Organised Crime Act, 121 of
1998 (“the Act”) in the form of a
rule nisi
preserving a
certain
BMW X5
motor vehicle and certain fixed property
situated in Somerset-West. The basis for the application was the
contention that the first
respondent had used both the vehicle and
the immovable property as “instrumentalities of an offence” in
relation to a large number
of alleged contraventions of the Sexual
Offences Act, 23 of 1957, involving sexual acts with minors.
[2] Before the
rule nisi
could
be confirmed the respondents in that case, who are the respondents in
the present matter as well, brought an application in
terms of Rule
of Court 6(12)(c) for a reconsideration of the initial order made.
The application was successful, Traverso DJP finding
that, although
the applicant was entitled to bring the initial application
ex
parte
, various material non-disclosures on the part of the
applicant justified the order being set aside.
[3] Traverso, DJP’s judgment was
handed down on 20 September 2006 and less than a month later the
applicant brought this fresh application
for substantially the same
relief namely a preservation order in respect of the same property
but on this occasion on notice to the
respondents. The first
respondent is the alleged perpetrator of the sexual offences and the
owner of the BMW vehicle. The second
respondent is a company
incorporated in terms of the company laws of this company having its
registered address in Somerset West
and is the registered owner of
the immovable property forming part of the subject matter of the
application.
[4] The matter was first called in
third division before Dlodlo, J on 22 November 2006 as an unopposed
motion. I am given to understand
that he indicated that he required
full argument in support of the application. The matter was postponed
to 30 November on which
date Adv. Schippers SC appeared for the
applicant together with Adv. Baartman and duly delivered argument.
Judgment was reserved
whereafter counsel was requested, in a note, to
furnish written argument in respect of various issues raised by the
Court. Counsel’s
written response has been most helpful. I propose
to briefly consider the issues which I consider to be relevant to the
order sought.
SCOPE OF THE APPLICATION
[5] The order sought by the applicant
relates only to the immovable property. The reason for this is that
the first respondent is
opposing the preservation order sought by the
applicant in respect of the BMW motor vehicle. The registered owner
of the immovable
property, the second respondent, does not oppose the
application for a preservation order. It has indicated, however, that
it intends
to oppose the application for forfeiture of the relevant
immovable property which the applicant intends to move in terms of s
48
of the Act in due course. This much appears from a letter dated 21
November 2006 from the second respondent’s attorneys, Messrs.
Schliemann Incorporated, to the State Attorney.
[6] The preservation order being
sought interdicts the first and second respondent from dealing with
the immovable property, requires
the Registrar of Deeds to endorse
the title deeds with a suitable restrictive condition, appoints a
curator bonis
to the property with appropriate powers to preserve the property,
requires the holder of the property to surrender it to the
curator
bonis
and makes provision
for him to report and for the payment of his fees and expenses. The
proposed order makes provision furthermore
for its service upon the
first and second respondents, for publication in the government
gazette and sets out the steps to be followed
by such persons as may
wish to oppose the proposed forfeiture application.
[7] There is nothing in the draft
order submitted by counsel which excites concern, the only point to
be noted being that the clause
in which costs are sought in the event
of the matter is being opposed now falls away. The preservation order
is cast in final form
as opposed to a
rule
nisi
. Section 38 of the Act
empowers the applicant to seek preservation orders by way of
ex
parte
application. In the
particular circumstances of this matter, it being a second
application and one brought on notice to the respondents,
together
with the fact that the preservation order is in itself of a temporary
nature, it seems to me that no point is served by
granting the order
in anything but final form.
SERVICE OF THE ORDER
[8] According to the finding affidavit
of the Deputy-Director of Public Prosecutions, Adv. AC Mopp, the
first respondent fled South
Africa in September 2005 after his
alleged sexual exploitation of the children became known. First
respondent now lives in Berlin,
Germany and stated in an affidavit
deposed to in the previous application for a preservation order, that
Germany is his permanent
home and that he had no intention of
returning the South Africa. In that application the first and second
respondents were represented
by two different firms of attorneys,
Messrs. Kulenkampff and Associates and Messrs. Schiemann
Incorporated.
[9] The present application was
timeously served upon the aforesaid firms of attorneys. From
correspondence annexed to the application
it appears that both firms
of attorneys have ongoing mandates to represent first and second
respondents in relation to the proposed
forfeiture of the movable and
immovable properties.
[10] It appears from the judgment of
Traverso, DJP that the entire issued share capital in the second
respondent is owned by the Braun
Family Trust the only beneficiaries
of whom are the children of the first respondent and his wife. I
raised with counsel whether
it would not be appropriate for this
order to served upon the Braun Family Trust and the aforesaid
beneficiaries. Counsel has pointed
out that the order will served
upon the second respondent’s attorneys who represent the second
respondent and the sole director
of the second respondent, first
respondent’s wife, Mrs. RG Braun. Inasmuch as it is the second
respondent which owns the immovable
property and is before the court,
I am persuaded that it is not necessary to serve the order on the
Braun Family Trust or the beneficiaries
of that trust.
CAN A SECOND APPLICATION FOR A
PRESERVATION ORDER BE BROUGHT?
[11] It would appear that Dlodlo J
required argument,
inter alia
, as to whether the applicant was
entitled, after the discharge of the
rule nisi
initially
granted in the first application, to bring a second such application.
In essence Mr. Schippers’s submission on this point
was that it was
competent for the applicant to bring a second such application since,
firstly, the initial ruling unfavourable to
the applicant was not
appealable and, secondly, since the
rule nisi
had been
discharged on technical grounds rather than on the merits of the
application as such.
[12] In
Zweni v Minister of Law
and Order
1993 (1) SA 523
(AD) it was held that, generally
speaking, a non-appealable decision is a decision which is not final
(because the court of first
instance is entitled to alter it), nor
definitive of the rights of the parties nor has the effect of
disposing of at least a substantial
portion of the relief claimed in
the main proceedings. Having regard to the fact that the
rule nisi
previously discharged was a preservation order in terms of s 38 of
the Act and in other words a pre-cursor to the real relief sought,
namely, a forfeiture order, and to the fact that it was discharged
for want of full disclosure in an
ex parte
application, I am
of the view that the judgment lacks the second and third attributes
for an appealable judgment or order. Those
attributes are that the
judgment or order must be definitive of the rights of the parties and
thirdly it must have the effect of
disposing of at least a
substantial portion of the relief claimed in the main proceedings. In
my view the applicant would have found
it difficult, in the
circumstances of the present matter, to have sought to appeal the
judgment of Traverso, DJP. Quite apart from
that consideration I can
see no reason in principle why, where an application such as was
previously brought by the applicant is
dismissed on a basis that full
disclosure was not made in an
ex parte
application, he should
be barred from approaching court again for the same relief in a fresh
application.
IS AN ATTACHMENT OF MOVABLE
PROPERTY NECESSARY TO FOUND OR CONFIRM JURISDICTION?
[13] In the notice of motion the
applicant sought, only in the event of this court holding that the
provisions of s 38(1) of the Act
do not permit the granting of an
order without an attachment to found jurisdiction, an order directing
the sheriff to attach, as
property
ad fundandam jurisdictionem
or
ad confirmandam jurisdictionem
,
inter alia
, the first
respondent’s interest in and right and title to the
BMW
motor vehicle and the costs order which he obtained in the earlier
application. The draft order sought by the applicant, however,
omits
any reference to the aforesaid prayer and counsel was asked to submit
argument on whether an attachment to found jurisdiction
was
necessary.
[14] Counsel points out that that
prayer related only to the first respondent since the registered
office of the second respondent
as well as the relevant immovable
property falls within this court’s area of jurisdiction.
[15] Counsel argues furthermore that
an attachment to found jurisdiction is not necessary in the light of
the scheme of the Act. He
submits that the purpose of the Act, and
more specifically chapter 6 thereof, is aimed at the forfeiture of
the proceeds of or an
instrumentality used in crime. To achieve this
purpose the lawgiver has provided for the filing of a civil law suit
against the property
itself, in effect an action
in rem
, and
that the statutory procedure is modelled on modern notions of
in
rem
forfeiture. The underlying notion is that property itself is
the offender and thus can be cited as the defendant
in rem
in
a civil case.
[16] The courts have recognised the
in
rem
nature of the
proceedings and held that civil forfeiture is modelled largely on
statutory provisions in the USA and New South Wales,
Australia see
National Director of Public
Prosecutions v Prophet
.
This analysis is set out by in following extract from an article by
Casella entitled “
The
Development of Asset Forfeiture Law in the United States
”.
1
“
Today, it is
understood that proceedings in rem are simply structures that allow
the government to acquire title to criminally tainted
property in a
single proceeding in which all interested persons are required to
file claims contesting the forfeiture at one time.
As it has always
been, the civil forfeiture is entirely independent of, and wholly
unaffected by, any criminal proceeding, and the
role of the property
owner in the commission of the offence is irrelevant. It is only
necessary that the government prove, by a preponderance
of the
evidence that the property was derived from, used to commit, or used
to facilitate the commission of a criminal offence. Thus,
though
rationale, the scope and the application all have changed, in rem
forfeiture continues to serve a vital purpose in allowing
the
government to take criminally-tainted property out of circulation,
abate nuisances, discourage certain types of unregulated commerce,
and encourage property owners to take care in managing their
property, ….
.”
[17] Bearing in mind that the owner of
the immovable property is a registered South African company and the
property is situated in
South Africa, as well as for the reasons
cited above, I can see no basis upon which it would be necessary for
an order
ad fundandam ad confirmandam jurisdictionem
.
IS THE IMMOVABLE PROPERTY AN
“INSTRUMENTALITY OF CRIME”?
[18] In order to succeed in obtaining
a preservation order in respect of the immovable property the
applicant must satisfy this court
that there are reasonable grounds
to believe that the property concerned is an instrumentality of an
offence referred to in schedule
1. That schedule includes the
statutory offence of unlawful carnal intercourse with a child under a
specified age, committing an
immoral or indecent act with a child
under a specified age, soliciting or enticing such child to the
commission of an immoral or
indecent act, attempted rape and
contraventions of s 71 of the Sexual Offences Act, 23 of 1957. Having
regard to the affidavits filed
in support of the application by or
regarding minor girls with whom the first respondent allegedly had
unlawful sexual intercourse
or with whom he committed so-called
indecent acts it is clear that the alleged offences fall within the
statutory scheme. The question
which arises is whether the immovable
property in question was an instrumentality of such an offence or
offences.
[19] The applicant’s case in this
regard is that the use of the immovable property was an integral part
of the first respondent’s
modus operandi. According to the
applicant many of the numerous offences allegedly committed by the
first respondent were committed
at the aforesaid residence. The
applicant’s case is, further, that the use of the immovable
property by the first respondent made
it possible or easy for him to
commit the numerous sexual offences with the minors. It provided him
with a secure private residence
within which to exploit children
sexually without risking detection. The residence is entered through
a large remote-controlled gate
and once this gate closed behind the
first respondent’s vehicle he would enter the garage also through a
remote controlled door.
From that garage there was direct access to
the residence. There is further evidence that upon approaching the
property the first
respondent would require the minors to conceal
themselves by flattening the seats and having the minors to lie down
in the vehicle.
[20] In this manner the first
respondent was able to get the children to, from and into the
residence undetected. The first respondent
then utilized the
immovable property extensively for his alleged unlawful acts. He had
intercourse with the minors in the main bedroom,
in the computer room
as well as in the lounge area. He used the two bathrooms in the house
on occasion to bathe the minors before
having intercourse with them
and washed himself there afterwards. He took photographs of the
children in the garden.
[21] It is the applicant’s case
furthermore that the first respondent’s repeated sexual
exploitation of minors was not an incidental
occurrence which
happened to take place on the immovable property. The applicant’s
case is that there was a pattern of sustained
and premeditated
unlawful conduct on the part of the first respondent in which the
immovable property played an important and vital
part.
[22] In these circumstances it seems
to me that there are reasonable grounds to believe that the property
concerned was an instrumentality
of an offence or offences. I hasten
to add that the above must by no means be viewed as a definitive
finding. The application is
at this stage unopposed but indications
are that the forfeiture order will be opposed. The question of when
and in what circumstance
immovable property on which offences are
committed will be considered to be an instrumentality of an offence
is a vexed question.
See in this regard the cases of
National
Director of Public Prosecutions v Parker
2006 (3) SA 198
and
Simon Prophet v National Director of Public Prosecutions
2006(1) SA 38 (SCA) as well as
National Director of Public
Prosecutions v RO Cook Property (Pty) Ltd
and others
2004 (2)
SACR 208.
With the benefit of full argument from both points of view,
the court hearing the forfeiture application will be in a better
position
to make an informed and conclusive finding.
[23] In the result, I am satisfied
that the applicant is entitled to the preservation order which it
seeks in respect of the immovable
property. An order is granted in
the form of the draft handed up by counsel, save for para 13 thereof
which order is annexed hereto.
_________________
LJ BOZALEK, J
1
Burchell and Erasmus (eds), Criminal Justice in a New Society:
Essays in Honour of Solly Leeman (first published in Acta Juridica,
2003) 314 at 319.