About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2005
>>
[2005] ZAFSHC 78
|
|
National Director of Public Prosecution v Jansen and Another (2710/2004) [2005] ZAFSHC 78 (17 March 2005)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Application No.:
2710/2004
In
the case between:
THE NATIONAL
DIRECTOR OF PUBLIC
APPLICANT
PROSECUTIONS
and
FREDDIE
JANSEN
FIRST
RESPONDENT
LIZIWE
XOLISWA JANSEN
SECOND RESPONDENT
CORAM:
MALHERBE JP
_____________________________________________________
HEARD ON:
17 FEBRUARY 2005
JUDGEMENT:
MALHERBE JP
_____________________________________________________
DELIVERED ON:
17 MARCH 2005
____________________________________________________
On 12 August 2004
applicant obtained an
exparte
preservation order in terms of section 38(2) of the Prevention of
Organised Crime Act (Act 121 of 1998) relating to the following
property:
A Ford Sierra motor
vehicle with registration number BKL761FS;
A Volkswagen Jetta motor
vehicle with registration number CCH061FS;
A .38 Special Rossi
revolver with serial number AA757772;
R25 159,22 cash;
A computer monitor
(including speakers), a digital camera, a laminator, a hydraulic
jack, a bicycle and a Motorola cell phone.
It was, and still is,
applicantâs case that this property was an instrumentality of an
offence listed in Schedule 1 of the Act (i.e.
robbery) or the
proceeds of unlawful activities as envisaged by the said subsection
(2).
It
is common cause that this property was found by the South African
Police in the possession of first respondent and two of his
co-accused
(Motiki and Khan) on 9 and 12 January 2004 during their
investigation of an armed robbery at Absa Bank, Zastron on 6 December
2003.
It is also common cause
that the said bank at Zastron was robbed of approximately R258 400,00
by armed men on 6 December 2003 and
that first respondent, Motiki and
Kahn were implicated in this robbery (together with 4 bank
officials). First respondent and Motiki
were identified as two of
the robbers at an identification parade and they, as well as Khan,
were implicated by one of the Bank officials
who turned State witness
(Gert Whittles). The police visited first respondentâs house on 9
January 2004 and seized the said Volkswagen
Jetta and revolver and
all the property set out in paragraph (v)
supra
.
This property was in âa fairly new conditionâ. On the same date
Motiki was arrested and was found in possession of the Ford
Sierra
and various items that linked him with the robbery. On 12 January
2004 Kahn was arrested and R16 000,00 cash in new banknotes
were
found in his safe.
Applicant
now applies in terms of section 48(1) of the Act for an order
forfeiting to the State all the property listed above that
is subject
to the said preservation order. In order to succeed in this
application applicant has to convince the Court on a balance
of
probabilities that the property is or was an instrumentality of the
robbery or the proceeds of the robbery.
Service of the
preservation order was duly effected upon respondents and Motiki and
Kahn and the order was also published in the Government
Gazette in
terms of the Court Order. Applicantâs attorneys reached an
agreement with the attorneys acting for Johnnieâs Used
Cars at
Aliwal North from which Motiki bought the Ford Sierra on 9 December
2003 for R18 000,00 and paid R10 700,00 in cash. In
terms of this
agreement the seller consents to a forfeiture order on the
understanding that the car in question will be sold by public
auction
and the nett proceeds of the sale will be paid to him. There is no
appearance on behalf of Kahn. Only Mr. and Mrs. Jansen
(first and
second respondents) oppose this application. Their answering
affidavits were prepared by themselves. They appeared in
person and
presented their arguments themselves: Mr. Jansen through an
interpreter and Mrs. Jansen in English.
On 18 December 2003, i.e.
some 12 days after the robbery, both respondents visited Te-Vrede
Motors in Bloemfontein where second respondent
purchased the
Volkswagen Jetta Motor car for R24 200,00. She paid the purchase
price in cash by means of banknotes of various denominations
that she
carried in her handbag. The owner/salesman who sold the car to her
declares in his affidavit that she requested him not
to register the
car in her name but to arrange for it to remain registered in the
name of the previous owner. He declined to do
so.
Second respondent admits
purchasing the car on 18 December 2003 for cash but denies the
alleged request regarding the registration.
According to her the
purchase price formed part of an amount of R54 000,00 which she had
saved from previous business ventures,
in other words, that she
acquired the car legally. She also admits purchasing the various
other items seized by the Police on 9
January 2004 on the same date
in Bloemfontein and paying cash for them. The invoices attached to
the founding affidavit reveal that
she paid R1 297,95 for the
laminator and cell phone and R575,90 for the hydraulic jack and
various small items. I understand her
to admit paying cash on 18
December 2003 for all the property which the Police confiscated at
the home of the respondents on 9 December
2003. I quote from her
affidavit:
âIn December 2003 as I was cleaning the kitchen drawer I saw one of
my Menuâs which were Laminated. I got the idea that if I
could do
a laminating Business I could make money and I could never run out of
clients. In every house there are about two to four
children and
almost every adult has a Certificate from School, University, Work
Achievements etc. and these Certificates they acquire
need protection
from accidental spilling of water, folding of Certificates and
bending at the edges. Also in every house there are
photoâs, which
had been taken on special occasions who, needed to be enlarged and
framed.
Now considering my plan of action if I
got 30 â 40 Certificates a day from house to house 5 times a week I
would make sale of about
R3 000,00 and R4 000,00 a month and if I got
10 Photos a day to enlarge in a month I would make sales of about R8
000,00 a month.
This combined would make sales of about R12 000,00 a
month if I charged, R5,00 to laminate a Certificate and R40,00 to
enlarge
a Photo. This motivated me and decided to start this
business and to accomplish my plan was to use my Savings to purchase
the above,
mentioned property which the Police took.
On the 16 December 2003 I informed my
husband of my plans and told him that on the 18 December 2003 I would
be going to Bloemfontein
to purchase the property I am going to use
to start the Business next year January 2004. He asked me where
would I get Money to
Purchase the above, mentioned property. I then
showed him an old DSTV DECODER, which he had bought at an auction.
Inside the DECODER
was my savings of R54 000,00. I used to hide this
Decoder in the clothes cabinet in the bottom drawer, which I would
stack with
Novels, as my Husband does not read books. I did not Buy
the above, mentioned property as luxuries I bought it for business
purposes.
On
the 18 December 2003 I went to Bloemfontein with my Husband and
Child. We did window shopping for cars when I saw a car that I
wanted at Te Vrede Motors in Bloemfontein I told the Salesmen that I
am interested in the Volkswagen Jetta with registration number
CCH061FS....
The
rest of my Savings I spent around December 2003 in the hope of
starting a New Business the following year of 2004.â
In his affidavit first
respondent admits his participation in the armed robbery but claims
that he did so under duress. According
to him he did not use his .38
revolver to hold up the bank employees but a toy gun that he bought
shortly before the robbery. In
argument, however, he consented to
the forfeiture of the genuine revolver mentioned in the papers. He
claims to have received only
R10 000,00 of the booty and also claims
that second respondent bought the Volkswagen Jetta and other property
with her own funds.
As far as the motor
vehicles are concerned, applicant relies on an affidavit by Gert
Whittles in which he says that neither first
respondent nor Motiki
owned a car before the robbery. It is significant that the
respondents do not deny this allegation. It means
that they bought
their first car shortly after the robbery and paid a large amount in
cash for it. On the same day second respondent
went on a shopping
spree in Bloemfontein and spent substantial amounts of cash on the
computer monitor, digital camera etc. mentioned
above. Her
explanation of where the cash came from and, especially, where it was
stashed away, is most unconvincing and improbable.
It is just too
much of a coincidence that everything started to fall into place
during the time of the robbery: She cleaned the
kitchen drawer and
came across an old menu that was laminated. This discovery started a
train of thought about a new business venture
that would yield large
profits. Fortunately her savings of R54 000,00 had remained intact
and safely hidden away in an unlikely
place despite various
unsuccessful attempts to establish a business between November 2002
and September 2003. Second respondent
is not an unsophisticated
woman. She is the author of the answering affidavit and was
definitely not at a loss for words during
her address in Court. In
my view it is far more probable that second respondent possessed
substantial amounts of cash during December
2003 as a direct result
of first respondentâs participation in the bank robbery, in other
words, that the cash was part of the
stolen money. This stolen money
purchased the Volkswagen Jetta and the other goods that were found in
respondentâs possession.
Therefore this property constitutes the
proceeds of unlawful activities. The same conclusion obviously
applies to the Ford Sierra
car and the cash set out in the
preservation order.
In
the result I find that applicant has proved on a balance of
probabilities the requisites for a forfeiture order as prayed.
The amended draft order
set out on pp. 2, 3 and 4 of this application further contains the
customary provisions relating to the powers
and duties of the
curator
bonis
,
the publication of this order and the costs of the application.
These provisions are all in order.
Counsel
for applicant has the contact details of respondents and has
undertaken to let them know when judgement in this matter will
be
delivered.
An
order is granted in terms of the amended draft order on pp. 2, 3 and
4 of the application.
_________________
J.P.
MALHERBE, JP
Counsel
for the applicant: Amanda Maree
Instructed by
the State Attorney
BLOEMFONTEIN
/em