National Director Public Prosecutions v Molatlhoe (614/2004) [2004] ZAFSHC 85 (5 August 2004)

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[2004] ZAFSHC 85
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National Director Public Prosecutions v Molatlhoe (614/2004) [2004] ZAFSHC 85 (5 August 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Application No. 614/2004
In
the matter between:
NATIONAL DIRECTOR OF
Applicant
PUBLIC
PROSECUTIONS
and
ANDRIES
RABOREPE MOLATLHOE
Defendant
KEIKANETSWE
PAULINAH MOLATLHOE
1st Respondent
___________________________________________________________
CORAM:
MALHERBE
JP.
___________________________________________________________
HEARD
ON:
29 JULY 2004
___________________________________________________________
DELIVERED
ON:
5 AUGUST 2004
_____________________________________________________________________
This is the extended return date of a provisional
restraint order in terms of section 26 of the Prevention of Organised
Crime Act,
Act 121 of 1998 (“the Act”) dated 26 February 2004.
The property to which the order relates consist of 2 immovable
properties
described as 5058/9 Mojatou Street, Rocklands,
Bloemfontein and erf number 30941, Botchabela, Mangaung (situated at
3182 Taaibosch
Street), home contents or household goods to the value
of approximately R300 000,00 and 25 motor vehicles. It is
applicant’s case
(i) that all these assets are realisable property held
by defendant and/or first respondent (his wife) as envisaged by
section 26(2)
of the Act;
(ii) that
a prosecution for contravention of section 5(b) of the Drugs and Drug
Trafficking Act, Act 140 of 1992, (commonly known
as dealing in
dagga) has been instituted against defendant; and
(iii) that there are reasonable grounds for believing
that a confiscation order may be made against him at the conclusion
of his trial
(section 25(1) of the Act).
Applicant’s main deponent is a Ms Keightley, a Deputy
Director of Public Prosecutions. She is supported by several
affidavits relating
mainly to defendant’s alleged involvement in
the criminal activities of a syndicate which had been dealing in
dagga over a number
of years. Police Inspector Melato is stationed
with the Organised Crime Unit of the South African Police Service,
Bloemfontein and
is the investigating officer of project “Big Boy”
which investigated the smuggling of dagga in the Free State. He
declares that
a syndicate controlled by defendant is particularly
active in the Free State and that the Police have canvassed an agent
to purchase
dagga from the syndicate. On 18 November 2002 various
properties were searched and 305,956 kilograms of dagga were seized.
The
street value of this dagga is R1,00 per gram or R305 956,00.
Defendant was one of the people arrested on this occasion. He was
initially released on R15 000,00 bail but was thereafter arrested on
2 counts of car theft and is presently in custody. Inspector
Melato’s affidavit deals comprehensively with purchases of dagga by
the police agent from so-called “runners” for the syndicate
on
various dates during the period June to November 2002. All these
allegations are substantiated by affidavits from the police
officers
involved. Some of the dagga seized on 18 November 2002 was found in
vehicles registered in defendant’s name. The Taaibosch
Street
property mentioned above plays a prominent role in almost all the
transactions by the police agent and there are 2 other cases
pending
against defendant in which it is alleged that 362 kilograms and 32
kilograms dagga respectively were found at his home at
5058/9 Mojatou
Street, Rocklands. Apart from all the details of the alleged sale of
dagga on various occasions, Inspector Melato
also says that an
unlicensed firearm, together with 2 magazines, 26 bullets and a
holster were found in a Corolla motor vehicle registered
in
defendant’s name when the Taaibosch Street property was searched on
18 November 2002. Inspector Huxham confirms this in her
affidavit.
To
sum up: In its founding affidavit applicant has tendered
overwhelmingly detailed evidence of defendant’s involvement in
dealing
in dagga on a large scale. This evidence clearly links both
the immovable properties mentioned above, especially the Taaibosch
Street
property, to these criminal activities. It also links a
number of the vehicles registered in defendant’s name to these
activities.
Defendant commences his answering affidavit with an
allegation that certain paragraphs in the affidavit of Inspector
Melato should
be struck out as objectionable on the ground that they
are scandalous, vexatious or irrelevant. These paragraphs are the
following:
“15.1 On the 9
th
February 1995 the SAPS stopped a red
Mazda Drifter, registration number OB 201 786, belonging to Molatlhoe
between Dewetsdorp and
Bloemfontein. During a search of this vehicle
the SAPS found and seized 102,86 kilograms of cannabis. At the time
of this incident,
Magusha was the driver of the Mazda Drifter and an
unknown male accompanied him as a passenger. This case was withdrawn,
as this
unknown male could not be traced when the case was set down
for trial.
15.2 During
July 2001 a blue Mazda 626, registration number BMR 924 FS, belonging
to Molatlhoe was in an accident outside Verkeerdevlei.
The SAPS on
the scene seized 84 kilograms of cannabis that was found in the car.
16. A number of cases were investigated with regard to cannabis that
was seized at Taaibosch:
16.1 Three sellers were acquitted on the following dockets that were
opened after cannabis was found at Taaibosch:
16.1.1 Batho CAS 794/10/98. In this case 3 kilograms of cannabis was
seized at the above address.
16.1.2 Park
Road CAS 294/11/98. The SAPS seized 32 kilograms of cannabis at
Taaibosch during the arrest of the seller.
16.1.3 In
Batho CAS 630/2/97 the SAPS seized 35,557 kilograms of cannabis
during the arrest of the seller.
16.2 The SAPS found and seized cannabis at Molatlhoe’s home, i.e.
5058/9 Mojatau Street (“Mojatau”) on various occasions. The
following case dockets were opened:
16.2.1 In Kagisanong CAS 59/9/96 the SAPS found and seized 22,2
kilograms of cannabis hidden in a toilet on the premises. Nobody
could be prosecuted in this case.
16.2.2 In
Kagisanong CAS 63/4/01 the SAPS found and seized 32,12 kilograms of
cannabis in the garage of this property. Molatlhoe
was arrested and
the case against him is pending. The facts of this case are
discussed in more detail in paragraph 29.1 below.
16.2.3 362
Kilograms of cannabis was found and seized by the SAPS in Batho CAS
261/6/01. Molatlhoe was also arrested on this case
and the trial
against him is pending.”
“28. Molatlhoe has previously been charged on two cases of dealing
in cannabis. However, these cases did not lead to convictions.
The
charge of contravention of Section 5(b) of Act 140 of 1992 in Batho
CAS 105/11/91 was withdrawn due to a lack of evidence.
On the charge
of contravention of Section 5(b) of Act 140 of 1992 in Batho CAS
577/2/98, Molatlhoe was acquitted.”
In
his Heads of Argument on behalf of defendant/first respondent Mr
Sizephe advances a further argument why these same paragraphs
should
be struck out. I quote from the Heads:
“The nub of the Defendant’s complaint
in limine
is that by
allowing the matters complaint of to stand, his right to equality
before the law, as enshrined in Section 9 of the Constitution
will be
violated in these proceedings, and for the following reasons:-
7.1 the applicant will be using information to which only the
applicant has access and to which the Defendant has no access, in
order
to establish so serious an allegation as “sufficiently
related criminal activity”;
7.2 and
only one aspect of the whole of each case is relied upon, and that
would be that either dagga was found there or someone was
charged for
dagga and the end result of each such case is not told to this Court
e.g. that whoever that was acquitted was so acquitted
because the
evidence did not establish a crime of any criminal activity and to
such information the Defendant does not have access
in order to give
this Court a fair and clear picture of each case;
7.3 in
this context, it is submitted that this Court should either refuse to
follow or depart from the
Phillips
case
supra
at
124(H)
where it is said that even acquittals qualify as related criminal
activities, because:-
(i) such an interpretation would inevitably lead to this enactment
achieving unjust and quite inequitable results, even in the context
of the main purpose of this legislation,
viz
to “combat
organised crime, money laundering and criminal gang activities”.
Examples of these untoward results proliferate e.g. if the Defendant
was indeed acquitted because the conduct complained of in his
trials
could not conform to the definition of proscription, what other
lawful and legal definition of criminal activity or conduct
do the
Applicants want this Court to use?
(Compare Snyman se Strafreg 4de uitgawe bl.64; Principle
Immigration Officer v/s Bhula
1931 AD 323
at 336)
(ii) to interpret this enactment in this way will alter the existing
law i.e. common law, statute law and judicial precedent more
than is
necessary, like in the example given in (i) immediately above, and as
such it can never be in accordance with the intention
of the
legislature.
7.4 given what is said in the
Phillips
Case
supra
at
77(H-I)
viz
; “Plainly, restraint orders are seriously
invasive ….” and what is further said by the Supreme Court of
Appeal in the matter
of
National Director of Public Prosecutions
v/s R O Cook Properties (Pty) Ltd and others
, a reportable but
not yet reported judgment in
Cases No 260/03, 666/02
and
111/03
delivered on
13 May 2004
and at
pages 18-19
,
that
Chapter 6
of this Act is penal in character.
That, with respect, goes for
chapter 5
as well. In any event
a confiscation order is equated with a forfeiture order in
Phillips
at
111(F)
, the difference is only that whilst in confiscation
orders a restraint order serves as a prelude, in forfeiture orders a
preservation
order serves as a prelude. This, therefore, brings into
consideration the maxim of double jeopardy for the Defendants.
He is being exposed for the second time to the same penalty now,
albeit it being disguised in another form.
(see generally
S v Vermeulen
1976 (1) SA 623
(c) at G35
and
Minister of Justice v/s Bagattine
1975 (4) SA 252
(T) at 259
).”
(The
reference to “related criminal activities” is obviously a
reference to the provisions of section 18(1)(c) of the Act).
I must confess that I find it difficult to understand
this line of reasoning. In his address to the Court Mr Sizephe
advanced substantially
the same contention, albeit somewhat
differently. He submitted that an acquittal on a criminal charge is
irrelevant, and, therefore,
inadmissible, to decide whether defendant
may have derived any benefit from criminal activity related to
dealing in dagga. I do
not agree. The following example comes to
mind: If the prosecuting authorities have evidence at their disposal
proving e.g. the
sale of dagga or the possession or storage thereof
on immovable property belonging to a particular person and the
inference can rightly
be drawn that that person made common cause
with those activities, I can see nothing either constitutionally or
otherwise wrong
with a finding that there is a relation between that
person and/or his offences and those criminal activities, even though
the “criminals
themselves” were either not prosecuted or
acquitted. This view conforms with the view expressed by Heher, J in
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v
PHILLIPS AND OTHERS
2002 (4) SA 60
(WLD)
at p.
124H
in the following words:
“The related criminal activity may also be that of someone other
than the defendant, for example a co-accused or a gang and may
even
relate to a charge of which the defendant himself has been
acquitted.”
Mr
Sizephe submitted that I should not follow this
dictum
as appears from the above quotation from his Heads of Argument. The
PHILLIPS
-decision
(supra) was confirmed on appeal in
PHILLIPS
v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
2003 (6) SA 447
(SCA)
. The Supreme Court of
Appeal did not criticise the Court
a quo’s
judgment in relation to its discussion of the phrase “sufficiently
related” quoted above.
NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS v KYRIACOU
2004
(1) SA 379
(SCA)
also dealt with the phrase
“sufficiently related activity” in section 18(1)(c) of the Act.
(See paragraph [11] on p.385 of the
report). There is nothing in this
judgment that supports Mr Sizephe’s argument in the
COOK
PROPERTIES
judgment (
supra
)
the Supreme Court of Appeal said in paragraph [29] that Act 121 of
1998
“requires property owners to exercise responsibility for their
property and to account for their stewardship of it in relation
to
its possible criminal utilisation.”
If,
therefore, defendant is convicted of dealing in dagga and there is
acceptable evidence of other instances where dagga was either
possessed on or sold from property belonging to him, it seems to me
that such possession or sale could be sufficiently related to
his
dealing in dagga as contemplated by section 18(1)(c) of the Act and
that evidence of such possession or sale will be admissible
against
defendant in restraint or forfeiture proceedings under the Act. The
fact that defendant does not have access to such evidence
or
information (whatever that might mean) cannot stand in the way of
applicant to prove the relationship required in section 18(1)(c)
of
the Act.
I fail to see the relevance in Mr Sizephe’s Heads of
Argument to
S v VERMEULEN
1976
(1) SA 623
(C)
at
635
where the maxim
nemo debet bis vexari pro
eadem causa
is discussed. It is clear from
the provisions of the Act that a person who is convicted of an
offence runs the risk of a punitive
forfeiture order over and above
any sentence imposed for that offence. (Mr Sizephe abandoned this
ground in his oral address).
The restraint order with which this
application is concerned, is the prelude to a forfeiture order. I
find, therefore, that there
is no substance in the first ground
advanced for striking out the paragraphs in question.
The second ground advanced in the papers for the
application to strike out is that the allegations complained of are
scandalous, vexatious
and irrelevant. In his address Mr Sizephe
expressly informed the Court that he was no longer relying on the
grounds “scandalous”
or “vexatious” and was confining his
argument to the ground “irrelevant”. In paragraph [37] of the
PHILLIPS
-decision
in the Supreme Court of Appeal the following is said with reference
to section 25(1) of the Act which bears the heading
“Cases in which
restraint orders may be made”:
“Turning to the requirements of s 25(1) of the Act, respondent has
to show in a restraint application reasonable grounds for believing
a
confiscation order may be made. This involves reasonable grounds for
believing that the defendant may be convicted as charged,
that the
trial court may find that he benefited from the proved offence or
related criminal activity and that a confiscation order
may be made
in that court’s discretion.”
The allegations complained of appear to me to be
eminently relevant because they show that members of what applicant
calls “the
syndicate” have sold dagga over a lengthy period of
time from properties belonging to defendant. In fact defendant
himself says
that he was aware of such activities by lessees of rooms
on his properties but was unable to put a stop to it. He denies any
personal
involvement in any of the criminal activities alleged in the
founding papers. The application to strike out can, therefore, not
succeed.
Mr Sizephe relied heavily on the judgment in the
COOK
PROPERTIES
-case (
supra
).
With reference to that judgment he submitted that before the
provisional restraint order can be confirmed the applicant must show
a relationship between the unlawful activities and the property in
issue. Mr Fischer, correctly in my view, submitted that Mr Sizephe
is confusing the requirements for a restraint order in terms of
Chapter 5 of that Act with the requirements of a preservation order
in terms of Chapter 6. Chapter 5 (section 18) requires the Court to
enquire whether a defendant
has derived any
benefit from his offence or related criminal activity
whereas Chapter 6 (section 38) requires the Court to make a finding
whether there are reasonable grounds to believe that the property
concerned
is an instrumentality of an offence
or is the proceeds of unlawful activity
. Mr
Sizephe is quite correct that applicant does not allege that the
defendant acquired any of the property in question directly
with the
proceeds of dealing in dagga or that such property was an
instrumentality of such dealing. Applicant’s case is in fact
simple: Defendant’s lawful income is insufficient to account for
his known assets. He has committed the offence of dealing in
dagga
and there is a relationship between his erven and motor vehicles, on
the one hand, and his own offences and related criminal
activities in
the past, on the other hand. Therefore, he probably benefited from
either his own offences or criminal activities
related to those
offences. The benefit need not consist of any realisable property but
may even be the ability to support his family.
I agree with this
exposition of applicant’s case by Mr Fischer and also agree that it
rests upon a correct interpretation of the
Act.
In his answering affidavit defendant refers at length to
the evidence during his bail application in the Magistrate’s Court.
He
says,
i.a
. that
“the Police officers were lying through their teeth”
“their evidence then became a shame and a sin and was utterly
destroyed”
“it was
difficult to believe them even when they said who their names are”
“they conceded that the agent himself is a liar, a criminal and a
person nobody can trust.”
With reference to Inspector Meloto’s affidavit, he
says that Melato
“knows very well the Police planted that cannabis”
in
his house at 5058/9 Mojatou Street. He accuses applicant of malice
against him. He says that
“the
State employed dirty tricks”
against him. He makes the following sweeping statement
in paragraph 29 of his affidavit:
“I mean on the founding papers alone the statement
“Defendant clearly lives beyond his alleged legitimate sources of
income”
is a blatant lie! Nothing is clear from the founding papers! The
only thing that is clear in the founding papers is the fact that
they
are riddled through with distortions, half truths and lies!”
Such intemperate language does not impress. Nor does it
disturb my conviction that applicant has shown convincingly that
defendant
could be convicted of dealing in dagga in his pending
trial.
Section 18 of the Act provides for a confiscation order
in addition to any punishment for an offence. Such an order is
dependant
upon a finding that the accused has benefited from the
offence or any criminal activity sufficiently related to that
offence. Applicant’s
case is that defendant must have benefited
financially from the syndicate’s dealing in dagga because his
legitimate means of income
are insufficient to have acquired all his
assets. The realisable property or assets to which the rule
nisi
applies, have been set out earlier in this
judgment
viz
2
immovable properties, household goods to the value of R300 000,00 and
25 motor vehicles. In its founding papers applicant says
that in his
bail application defendant stated that his only income was derived
from operating 5 taxis. In his answering affidavit
defendant says
that he in fact mentioned 7 taxis during his bail application.
However, he also says that sometimes 1 or 2 taxis
might break down so
that only 5 are operative. Be that as it may, he also says the
following:
“The income I derived from my taxis was my only income enabling me
to meet my day to day obligations to my family.”
“I reiterate here that my income from the taxi business is R25
000,00 and that my wife also earns income in excess of R3 000,00
per
month from her employer. This fact will also become clear from the
curator’s own assessment.”
The immovable property:
Defendant says that the Taaibosch Street property was
bequeathed by his late father to all the latter’s children and
registered
in his name as the oldest son. His father died during
1980. He says that he purchased the property at 5058/9 Majatou
Street
“from the proceeds of my late father’s estate as well as my
income from where I was employed. I improved that property through
the income I generated from my taxi business.”
The
curator, however, reports that the Deeds Office records show that the
Taaibosch Street property was registered in defendant’s
name only
on 24 February 1999. Defendant says the following about himself:
“3.4 I deem it very necessary to inform this Honourable Court about
my background:
3.4.1 I was born and bread in Bloemfontein and my late father was a
railway worker, now spoornet, and I personally was employed,
for 15
years at a Bakery, here in Bloemfontein;
3.4.2 In
1983 I left permanent secular employment and concentrated full time
on the taxi business bequeathed to me by my late father;
3.4.3 I
worked hard and tirelessly to grow that taxi business from one taxi
of a valiant motor vehicle to a fleet of almost ten (10)
taxis at
some stage. I bought some of these taxi vehicles new and sold others
and I made a lot of profit from that business;
3.4.4 I
deny as malicious all the allegations that I gained any benefit from
illicit or illegal dealings in cannabis;”
He says further that
“all the furniture we have at Rocklands was purchased by my wife
from her own employer which is a furniture business at Botshabelo.”
In
reply applicant repeats that defendant could not have purchased his
assets with his so-called legitimate income from his taxi business
and attached his income tax returns for the years ending February
1998, 1999, 2000, 2001 and 2002. These returns show the following:
Gross income
Nett
profit
1998 R46
601,90 R15 147,80
1999 R48 532,55 R16 974,61
2000 R56
092,00 R17 284,80
2001 R66
473,00 R19 318,51
2002 R69
828,00 R21 764,48
For the years 1998 to 2000 his income tax returns show
that he was the registered owner of only 2 vehicles and for the years
2001
and 2002 3 vehicles are listed. Not in one of the
years
referred to above did his nett income
approach the R25 000,00 which he claimed he earned
per
month
from his taxi business.
The motor vehicles:
The curator attached 7 motor vehicles of which 3 appear
in the list of 25 motor vehicles referred to earlier. He afforded
defendant
an opportunity to explain where the other listed vehicles
were. According to the curator’s notes defendant explained that 9
vehicles
had been sold (some many years ago in Lesotho); that 6 had
been written off; that 2 were being used as taxis; that 7 were in
Police
custody and that 1 was not in a working condition.
Defendant’s
allegation that all his assets (which he claims to be worth
“ten times more than the value of the cannabis
I am charged for”
i.e in excess of R3-million) were lawfully acquired, is
very, very doubtful.
In my view applicant’s reply and the curator’s
report tend to substantiate the allegations in the founding papers
that the trial
Court may find that defendant probably benefited from
dealing in dagga or related criminal activities. There are,
therefore, reasonable
grounds for believing that a confiscation order
may be made against him. (
KYRIACOU
-
supra
paragraph [10] on pp.384-385).
In
the result I make the following orders:
1. The provisional restraint order dated 26 February
2004 is confirmed.
2. All the costs that have not already been awarded to
applicant, are to be paid by defendant/respondent.
__________________
J.P.
MALHERBE JP
On behalf of Applicant:
Mr
P.U. Fischer
Instructed
by
The
State Attorney
Bloemfontein
On behalf of Defendant/Respondent
: Mr
M.J.D. Sizephe
Bokwa
Attorneys
Bloemfontein
/scd