About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2024
>>
[2024] ZANCHC 30
|
|
Moore and Others v National Director of Public Prosecutions (CA&R 59/2022) [2024] ZANCHC 30 (28 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
Number: CA&R 59/2022
Date
Heard: 15 May 2023
Date
Delivered: 28 March 2024
Reportable:
YES/
NO
Circulate
to Judges: YES/
NO
Circulate
to Regional Magistrates YES/
NO
Circulate
to Magistrates: YES/
NO
In
the matter between:
HENRIËTTE
CORNELIA MOORE
FIRST APPELLANT
CHRISTOPHER
LEY MOORE
SECOND APPELLANT
ROBERTO
JORGE MENDONCA VELOSA
THIRD APPELLANT
THE
CM PROPERTY
TRUST
FOURTH APPELLANT
and
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
Coram:
Williams J, Nxumalo J & Tyuthuza AJ
JUDGMENT
ON APPEAL
Tyuthuza
AJ
INTRODUCTION
1.
This appeal
comes before the Full Court of this Division by way of leave granted
to the appellants by the Supreme Court of Appeal
(SCA) on 18 August
2022. The Appeal is against the judgment and order of Mamosebo
J, handed down on 30 July 2021 under case
number 628/2020 and wherein
an order in terms of Section 50(1) (b) of the Prevention of Organised
Crime Act 121 of 1998 (the Act)
for the forfeiture to the state, of
the immovable property Erf 1[...] Barkly West, known as 1[...] S[...]
Street, Barkly West was
granted.
BACKGROUND
2.
The first
appellant’s partner Abraham Johannes Diedericks passed away on
25 November 2008. The first appellant (Ms Moore)
and the late
Diedericks were joint owners of a property situated at 2[...] A[...]
W[...], Royldene, Kimberley (the property).
3.
The first
appellant was jointly appointed with Sanlam Trust Limited as the
executrix of the estate of the late Diedericks, but was
removed on 14
April 2009 and replaced with Suzette Malherbe of the Sanlam Trust
Limited.
4.
On 13 January
2014, the first appellant offered to sell the Apian Way property to
a
certain Mr Michael Bareng
Raadt,
resulting in the parties entering into a rouwkoop sale agreement and
a residential property agreement for the said property.
5.
Mr Raadt and
his family took occupation of the property in March 2014. He
paid a monthly occupation rent of R20,000.00 from
20 January 2014, in
addition to which he purchased prepaid electricity coupons from the
first appellant in the amount of R10,000.00
for use at the property.
From March 2014 to December 2014 Mr. Raadt paid a total amount
of R1, 478,650.00 towards the purchase
of the property.
6.
In February
2014, the first appellant entered into an agreement with Mr
Lodewikus
Theodorus
Pienaar, in
respect of purchasing properties in Barkly West. It is common
cause that the first appellant utilised the monies
received from Mr
Raadt to purchase the properties in Barkly West. The respondent’s
forfeiture application was premised thereon
that the Barkly West
properties are proceeds of unlawful activities.
7.
In essence the
appellants’ case is that the respondent failed to demonstrate,
on a balance of probabilities, that the Barkly
West properties are
proceeds of unlawful activities and as such that the Court
a
quo
had
erred in granting the forfeiture order in that:
7.1.
the evidence the respondent relied upon, being the content of the
statements of Mr
Raadt and Mr Ellis, amounted to inadmissible hearsay
evidence and ought not to be allowed;
7.2.
on a proper interpretation of the redistribution agreement, the first
appellant was
entitled to sell 2[...] A[...] W[...] property to Mr
Raadt;
7.3.
the appellants did not have the intention to either defraud Mr Raadt
or commit the
offences as alleged.
LAW
8.
According
to section 50 of the Act
[1]
, the
High Court shall, subject to section 52, make an order applied for
under section 48 (1) if the Court finds on a balance of
probabilities
that the property concerned—(
a
)
is an instrumentality of an offence referred to in Schedule 1;(
b
)
is the proceeds of unlawful activities; or (
c
)
is property associated with terrorist and related activities.
9.
The Constitutional Court set out the
purpose of section 50 in the context of Chapter 6 of POCA as follows:
“
.
. .Chapter 6 [POCA] provides for forfeiture in circumstances where it
is established, on a balance of probabilities, that property
has been
used to commit an offence, or constitutes the proceeds of unlawful
activities, even where no criminal proceedings in respect
of the
relevant crimes have been instituted. In this respect, Chapter
6 needs to be understood in contradistinction to Chapter
5 of
[POCA]. Chapter 6 is therefore focused, not on wrongdoers, but
on property that has been used to commit an offence or
which
constitutes the proceeds of crime. The guilt or wrongdoing of
the owners or possessors of property is, therefore, not
primarily
relevant to the proceedings.”
[2]
10.
In terms of
section 48(1) of the Act, a preservation order in terms of section 38
must be in force when the application is made
for a forfeiture order.
The preservation order was granted by this Court on 20 March
2020.
11.
The Act
defines
“
proceeds
of unlawful activities” as “
any
property or any service, advantage, benefit or reward which was
derived, received or retained, directly or indirectly, in the
Republic or elsewhere, at any time before or after the commencement
of this Act, in connection with or as a result of any unlawful
activity carried on by any person, and includes any property
representing property so derived.”
The proceeds must in some way be the consequence of unlawful
activity.
12.
In
terms of s 50(1) of the Act, the NDPP bears the
onus
,
on a balance of probabilities, to establish that the property was an
instrument used in the commission of an offence. In
order to
sustain a forfeiture order the court must look at the whole picture
and determine whether the property, in the totality
of the
circumstances of the case, was a substantial and meaningful
instrument in the commission of the offence.
[3]
13.
Whether or not
the respondent was entitled to a forfeiture order depends on whether
the evidence adduced by the respondent in support
of its case
establishes, on a balance of probabilities, that the property
concerned represents the proceeds of unlawful activities.
WHETHER
THE CONTENT OF THE STATEMENTS AMOUNT TO INADMISSIBLE HEARSAY
EVIDENCE:
14.
It is common cause that at the
institution of this matter the first appellant was standing trial in
the Kimberly Regional Court
on charges of fraud and money laundering.
15.
The preservation application in
terms of section 38 of the Act was premised on information obtained
from the written statements
of Mr Raadt and Mr Ellis. These
statements were attached to the application launched on 13 March
2020.
16.
In its founding affidavit, the NDPP
submits that there are reasonable grounds for believing that the
property is the proceeds of
unlawful activities and thus liable to be
preserved and/or forfeited
.
17.
The appellants deny that the first
appellant acted unlawfully in either selling the Apian Way property
or receiving payment in terms
of such sale agreement from Mr Raadt.
The appellants admit that there was receipt of payment of the
first instalment and
payment in respect of the deposit in terms of
the agreements concluded with Mr Raadt. The appellants do not
dispute that
the first appellant intended to use the money in respect
of the Apian Way property to purchase the Barkly West properties.
The appellants submit that the Barkly West properties are not
proceeds of unlawful activities.
18.
The deponent in the section 38
application, Mr Ontong, a senior state advocate in the employ of the
NDPP, deposed to his affidavit
on 17 March 2020. According to
him, the facts deposed to are derived from affidavits and annexures
attached to his affidavit
and are within his personal knowledge. He
refers to the supporting affidavit of Mr Smit deposed to on 28
February 2020 which,
according to him, sets out the facts upon which
the section 38 application is based. In my view, the
source of Mr Ontong’s
information is Mr Smit, and thus Mr
Ontong does not have personal knowledge of the facts.
19.
According to the supporting
affidavit, Mr Smit is a senior financial investigator who is also in
the employ of the NDPP and he too
states that the content of his
affidavit falls within his personal knowledge. He is an
investigator for asset forfeiture
purposes in the criminal trial
relating to fraud, theft and money laundering under Kimberley CAS
148/2017. Mr Smit however
depends on Mr Raadt, Mr Ellis and Mr
Lategan for the information. Mr Raadt’s affidavit was
attested to in May 2016.
Mr Ellis’ affidavit was attested to in
August 2017. Despite the fact that Mr Smit only deposed to the
supporting affidavit
in February 2020, he never obtained the
confirmatory affidavits of Mr Raadt and Mr Ellis.
From
what
I can glean from the affidavit
of Mr Smit, he obtained the information from the affidavits and never
held interviews with Mr Raadt
and Mr Ellis.
20.
Evidently, the affidavits of Mr
Raadt and Mr Ellis were not for the purposes of the application but
in respect of the criminal investigation.
Neither Mr Raadt nor
Mr Ellis have deposed to confirmatory affidavits confirming the
content of the affidavits in this application.
21.
The NDPP’s replying affidavit
is deposed to by Mr Ntimutse, an advocate and the Acting Deputy
Director of Public Prosecutions
in the employ of the NDPP. He
states therein that the facts deposed to “
are
derived from both the affidavits and annexures attached hereto which
is at my disposal and therefore within my personal knowledge”.
Despite the appellants’ denial that the deponents to the
section 38 and 48 applications have personal knowledge of
the facts,
the NDPP does not amplify its case by attaching the confirmatory
affidavits of Mr Raadt or Mr Ellis.
22.
Section
3
of the
Law of Evidence Amendment Act 45 of 1988
prohibits the
admission of hearsay evidence in criminal or civil proceedings unless
each party against whom the evidence is to
be adduced agrees to the
admission thereof; or the person upon whose credibility the
probative value of such evidence depends,
himself testifies at such
proceedings or unless the court is of the opinion that such
evidence should be admitted in the
interests of justice. A Court has
a wide discretion in terms of
section 3(1)
of the
Law of Evidence
Amendment Act to
admit hearsay evidence in the interests of justice.
In deciding whether or not to admit hearsay evidence, the court
must
consider six factors, namely: the nature of proceedings,
the nature of evidence, the purpose for which the evidence is
tendered,
the probative value of the evidence, the reason why the
evidence is not given by the person upon whose credibility the
probative
value depends, the prejudice to any party which the
admission of such evidence might entail and any other factor which
should,
in the opinion of the Court, be taken into account.
[4]
23.
In this matter where a finding
needs to be made on a balance of probabilities, whether the Barkly
West properties are proceeds of
unlawful activities and thus should
be forfeited to the State. The evidence which the NDPP bases
its application on comes
by way of statements compiled by Mr Raadt in
2016 in regard to a criminal investigation and that of Mr Ellis which
was written
in 2017. The NDPP proffers no explanation as to why
it did not obtain the confirmatory affidavits of Mr Raadt or Mr Ellis
in the
section 38
application launched in 2020. It is common
cause that the criminal proceedings instituted in the Regional Court
are as a
result of a complaint which was laid by Mr Raadt against the
appellants. Mr Raadt in his statement does not disclose the
litigious history between the parties. The prejudice to be
suffered by the appellants herein is significant. The
appellants
were not given an opportunity to interrogate the statement
of Mr Raadt. The statement of Mr Raadt was made in 2016 and he
did not file an affidavit in these proceedings to confirm the content
of the NDPP’s affidavit. There is no averment
by the
deponents to the respondent’s affidavits that they have
interviewed Mr Raadt on the statement. The probative
value of
the evidence tendered depends on the credibility of Mr Raadt and not
of Mr Ontong, Mr Smit or Mr Ntimutse.
24.
The
deponents in the application rely heavily on the statements of Messrs
Raadt and Ellis. I take the view that it would not
be in the
interests of justice to allow the evidence due to the deponent’s
lack of personal knowledge of the material facts
and having failed to
obtain confirmatory affidavits of Messrs Raadt and Ellis. Those
affidavits were compiled almost 4 years
before the application was
instituted and the NDPP should at the very least have obtained such
confirmatory affidavits to prove
the veracity of the information.
25.
The
Court
a
quo
placed reliance on hearsay evidence of Mr Raadt and Mr Ellis and
ruled that it did so in the interests of justice. Respectfully,
in that regard, the Court
a
quo
misdirected itself.
INTERPRETATION
OF THE AGREEMENT
26.
It is the
appellants’ case that, by virtue of the provisions of the 2013
redistribution agreement, the first appellant was
entitled to deal
with the Apian Way property as she deems fit, which included the
right to rent out the property and to sell it.
27.
According to
the redistribution agreement, the first appellant was granted 50% of
the deceased’s share in the Apian Way property.
The other
50% of the property was already registered in the name of the first
appellant.
28.
The respondent
despite being aware of the redistribution agreement and its contents,
failed to disclose same in the
section 38
application, and submits
that the content of the redistribution agreement are irrelevant to
the proceedings. I do not agree
with this reasoning and I am of
the view that the first appellant entered into agreements with Mr
Raadt as a result of the redistribution
agreement and as such the
content therefore must be considered in determining the issues
herein.
29.
The pertinent
clauses of the redistribution agreement state:
“
4.
Voormelde toekenning van die bates is onderhewig aan die voorwaarde
dat:
4.1
HENRIETTA CORNELIA MOORE ‘n kontantbedrag van R200,000 (TWEE
HONDERD DUISEND
RAND) aan die eksekuteur van die boedel sal betaal
binne 8 (AGT) maande nadat die Herverdelingsooreenkoms onderteken is
deur beide
JACOB LE ROUX DIEDERICKS en CHRISTELLE DIEDERICKS;
4.2
Registrasie van oordrag van die eiendom gemeld in 3.1 in naam van
voormelde
HENRIETTA CORNELIA MOORE sal geskied na ontvangs van
betaling van die bedrag in 4.1, vry van wisselkoers of enige ander
kostes,
of by ontvangs van ‘n onherroeplike waarborg,
aanvaarbaar vir die Eksekuteur, uitgereik deur ‘n bank of
finansiële
instelling, vir betaling van die bedrag van R200, 000
(TWEE HONDERD DUISEND RAND), betaalbaar aan die transportbesorger vir
krediet
van die boedel.
”
5.
Die boedel sal
aanspreeklik wees vir die oordragkostes van die voormelde onroerende
eiendomme soos hierbo beskryf, asook vir die
kostes vir die opstel
van hierdie Ooreenkoms.
6.
Die res van die oorledene se boedel sal verdeel word kragtens die
verdere bepalings in die
oorledene se testament genoem.
7.
Dit staan die partye vry om met die bates te handel na goeddunke
sodra die herverdelingsooreenkoms
deur all partye onderteken is.”
30.
Loosely
translated from Afrikaans it means the following:
4.
Aforementioned award of the assets is subject to the condition that:
4.1
HENRIETTA CORNELIA MOORE will pay a cash amount of R200,000.00 (TWO
HUNDRED
THOUSAND RAND) to the executor of the estate within 8 (EIGHT)
months from the signing of the redistribution agreement by both JACOB
LE ROUX DIEDERICKS and CHRISTELLE DIEDERICKS;
4.2
Registration of the transfer of the property mentioned in 3.1 in the
name of
HENRIETTA CORNELIA MOORE will be effected on receipt of
payment of the amount mentioned in paragraph 4.1, free from exchange
rate
or any other costs, or upon receipt of an irrevocable guarantee,
acceptable to the Executor, issued by a bank or financial institution
for the payment of the amount of R200, 000.00 (TWO HUNDRED THOUSAND
RAND), payable to the conveyancers to the credit of the estate;
4.3.
The executor’s conveyancers will see to the registration of the
transfer into
the name of HENRIETTA CORNELIA MOORE.
5.
The estate will be liable for the transfer costs of the
aforementioned
immovable property as described above, as well as the
costs for the drafting of this agreement.
6.
The rest of the deceased’s estate will be divided in accordance
with the further terms of the deceased’s Will.
7.
The parties have full discretion on how to deal with the assets as
soon as the redistribution agreement has been signed by the parties.
31.
The first
appellant and the deceased’s children signed the redistribution
agreement on 28 November 2013, 18 November 2013
and 1 December 2013
respectively.
32.
The
redistribution agreement
inter-alia
dealt with the distribution of the deceased 50% shareholding in the
property, which was granted to the first appellant subject
to certain
conditions. When the first appellant entered into the agreement
with Mr Raadt, she had already acquired her 50
% ownership in terms
of the immovable property and in my view, the appellant was correctly
entitled to deal with the property the
way she saw fit.
33.
The
respondent argues that the only relevant fact to take into
consideration is that the first appellant was not the registered
owner of the Apian Way property and therefore could not sell the
property to Mr Raadt. I disagree with this reasoning. The
Supreme Court of Appeal has confirmed that
in our law, it is not an essential feature that the seller must be
the owner of the thing sold. The seller is, however, required
to deliver undisturbed possession of the thing sold.
[5]
34.
According
to
GRJ
Hackwill, Mackeurtan's Sale of Goods in South Africa 5
th
ed
:
“
A
s
has been indicated elsewhere, although the parties to a contract of
sale usually contemplate a transfer of ownership in the thing
sold,
this is not an essential feature of the contract, and sales by
non-owners are quite permissible. The delivery required
of a
seller is the delivery of undisturbed possession (vacua possesio)
coupled with the guarantee against eviction.”
35.
Based on the
aforegoing, I find that the first appellant, as an owner of the
undivided share of the immovable property and the heir
of the
deceased, was not precluded from contracting to alienate the property
and therefore entitled to sell the Apian Way property.
WHETHER
THE APPELLANTS HAD THE INTENTION TO DEFRAUD MR RAADT AND COMMIT THE
OFFENCES AS ALLEGED:
36.
The appellants
submit that when the first appellant concluded the agreements with Mr
Raadt, she had acted lawfully and did not have
the intention to
defraud Mr Raadt. She always intended to give transfer of the
property to Mr Raadt upon payment of the final
payment.
37.
The appellants
further allege that Mr Raadt was informed that 50% of the property
formed part of the estate of Diedericks. It
is the respondent’s
case that Mr Raadt only became aware that the Apian Way property was
part of a deceased estate when he
went to the municipality to buy
electricity in November 2014.
38.
The respondent
has attached to its papers an e-mail dated 24 April 2014, wherein the
first appellant advised her attorney that Mr
Raadt was aware that the
property is an estate property. Thus, on the appellants’
version, Mr Raadt had been aware
that the property was part of a
deceased estate since January 2014 and this version was not seriously
contested in the respondent’s
answering affidavit and there was
no affidavit from Mr Raadt to dispute this. Despite the
respondent’s reliance on
this e-mail which is attached to its
papers, the respondent failed to deal with this point in its replying
papers. Furthermore,
on Mr Raadt’s version, he only
became aware of this in November 2014, but one would have expected Mr
Raadt to have immediately
laid a complaint with the police. He
waited for almost two years to lay the complaint, after the default
judgment was granted
against him in May 2016.
39.
In light of
the fact that this Court has ruled that the first appellant was
entitled to deal with the Apian Way property in terms
of the
redistribution agreement, I find that there exist no grounds to
announce that the first appellant or the appellants had
the intention
to defraud Mr Raadt.
40.
As a result, I
make the following order:
(a)
The
appellants’ appeal is upheld with costs.
(b)
The order
granted by the Court
a
quo
is set
aside and replaced with the following order:
“
1.
The application for forfeiture under section 48 of the Prevention of
Organised
Crime Act 121 of 1988 is dismissed with costs.
2.
The provisional preservation order granted on 20 March 2020 and
varied
on 24 July 2020 is discharged.”
T
TYUTHUZA AJ
ACTING
JUDGE
I
concur.
WILLIAMS
J
JUDGE
OF THE HIGH COURT
I
concur.
NXUMALO
J
JUDGE
OF THE HIGH COURT
APPEARANCES
:
On
behalf of the Appellants:
Adv
CD Pienaar
Instructed
by:
Mervyn
Joel Smith Attorneys
On
behalf of the Respondent:
Adv
L van Dyk
Instructed
by:
The
State Attorney, Kimberley
[1]
Prevention
of Organised Crime Act 121 of 1998
[2]
National
Director of Public Prosecutions and Another v Mohamed NO and Others
(Mohamed (1))
[2002] ZACC 9
;
2002 (2) SACR 196
(CC);
2002 (4) SA 843
(CC) at para
17
[3]
National
Director of Public Prosecutions v Parker
[2006] 1 All SA 317
(SCA) at para 18
[4]
See:
Section
3(1)(c)
(i to vii) of the
Law of Evidence Amendment Act 45 of 1988
[5]
Koster
v Norval
(20609/14)
[2015] ZASCA 185
;
[2015] JOL 34890
(SCA) at para 4