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[2024] ZANCHC 63
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National Director of Prosecutions v Smith and Another (1914/2019) [2024] ZANCHC 63; 2025 (1) SACR 21 (NCK) (19 July 2024)
FLYNOTES:
POCA and SIU – Forfeiture –
Instrumentality
of offence
–
Vehicle
and rifle used for poaching – Son pleaded guilty to charges
under Conservation Act – Property belonging
to father –
Sufficiently close link between property and offences established
– Property facilitated or made
possible commission of
offences – Father cannot avail himself of innocent owner
defence – To discharge onus,
he should have done more –
Vehicle and rifle declared forfeit to State –
Prevention of
Organised Crime Act 121 of 1998
,
s 50.
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 NO: 1914/2019
Reportable:
YES
/
NO
Circulate to Judges:
YES
/
NO
Circulate to
Magistrates:
YES /
NO
Circulate to Regional
Magistrates: YES /
NO
In the matter between:
THE NATIONAL DIRECTOR
OF PROSECUTIONS
Applicant
and
FRANCO SMITH
First Respondent
IGNATIUS SMITH
Second
Respondent
JUDGMENT
EILLERT AJ
:
Introduction:
[1] This
matter is an application to have property belonging to the Second
Respondent, Mr Ignatius Smith, declared forfeit
in terms of the
provisions of the Prevention of Organised Crime Act 121 of 1998
(“POCA”). The property concerned are:
(a)
a Ford Ranger 2.5 Single Cab-motor vehicle (or ‘bakkie’)
with registration numbers and letters C[...] 8[...] N[...], chassis
number A[...] and engine number Q[...] (“
the Ford
”);
and
(b)
a .222 calibre Sako rifle with serial number 3[...] (“
the
Sako
”).
In some instances in this
judgment, I will refer to the aforesaid property individually, and in
other instances collectively as
“
the property
”.
The factual
background
[2]
The Second Respondent is the owner of a riverfront property next to
the Vaal River near Douglas,
as well as a farm in the Douglas or
Kimberley district, known as Koppiesdam. On the 15
th
of
November 2018 a neighbour of the Second Respondent at the riverfront
property, Ms Era Van Dyk, noticed that the Second Respondent’s
son, the First Respondent, was at the property and that the Ford was
parked in the garage. When the First Respondent left the riverfront
property in his girlfriend’s car, Van Dyk went next door to
have a look at what was loaded on the Ford. Van Dyk discovered
dead
animals at the back of the Ford, namely a kudu, two warthogs and a
blesbuck. She took photographs of the animals and the number
plate of
the Ford with her cellular phone. Six days later, on the 21
st
of November 2018, Van Dyk again saw the Ford at the riverfront
property and noticed that it was fitted with a spotlight. She
photographed
this as well.
[3]
During October and November 2018 Mr Cisco Cilliers, a farmer in the
Douglas area, found a number
of animal heads, intestines and skins of
a kudu, warthog and blesbuck on his farm and near the road to
Douglas. He took photographs
thereof. Cilliers started investigating
the occurrence and was informed by farm workers in the area that
poachers were using a
Ford bakkie and that such vehicle had been
spotted by farmers in the area on a regular basis. He also received
information from
farm workers that it was the First Respondent that
was responsible for the poaching. Cilliers received the photographs
taken by
Van Dyk and went to confront the First Respondent at the
riverfront property. He did not find the First Respondent there on
the
day but spoke to a person apparently in the employ of the First
Respondent, who confirmed to Cilliers that they slaughter game at
the
riverfront property. Cilliers warned this person that they should
stop with their poaching activities and that Cilliers would
make sure
that they are arrested.
[4]
Cilliers arranged a meeting with farmers in the Douglas area during
November 2018 to decide how
to address the problem with poaching that
they were experiencing. Mr Sean Ralph was present at the meeting.
Ralph identified the
Ford as the property of the Second Respondent.
Because Ralph knew the Second Respondent well, he phoned the Second
Respondent on
the 22
nd
of November 2018 to inform him
about the allegations of poaching against the First Respondent. The
Second Respondent answered the
phone call but told Ralph that he had
clients with him and that he was on his way to a meeting. The Second
Respondent requested
Ralph to contact the First Respondent directly.
Ralph tried to phone the First Respondent, but the First Respondent
did not answer
his phone. Ralph also sent messages via ‘
WhatsApp
’
to the First and Second Respondents, attaching the photographs taken
by Van Dyk and Cilliers, and thereby informed them
of the allegations
of poaching against the First Respondent and the intention of the
farmers in the Douglas area to have the First
Respondent arrested.
The First Respondent answered Ralph via ‘
WhatsApp
’
and provided an explanation for the shooting of the game, but did not
respond when asked where the game had been shot.
[5]
Another farmer in the Douglas area, Mr Johannes Jacobus Du Toit, was
experiencing a lot of problems
with poaching during 2018, especially
on his farms situated next to the gravel road between Kimberley and
Schmidtsdrift. At least
four incidents took place during which Du
Toit’s fences were cut, and during which he found vehicle tyre
prints in the veld
and blood and intestines of game that had been
shot. The last incident took place between the 14
th
and
the 16
th
of November 2018 during which a kudu and two
springbucks were poached. A criminal case was registered with the
Plooysburg branch
of the South African Police Service (“
SAPS
”),
but no arrests were made, and the case docket was closed. As a result
of the poaching activities Du Toit and another farmer,
Mr Dougie Cox,
started keeping the gravel road between Kimberley and Schmidtsdrift
under surveillance at night.
[6]
Matters came to a head on the evening of the 29
th
of
November 2018. At 19h10 that night Du Toit was on his way to a
surveillance point when he encountered the Ford between a farm
of his
and that of Cox. He recognised the vehicle and its occupants as he
had seen them on the gravel road before. He then lost
sight of the
Ford and assumed that the vehicle’s lights had been switched
off. Du Toit called Mr Coenraad Johannes Bezuidenhoudt,
a farmer
residing closer to the road from Kimberley to Douglas, for
assistance. He also called the SAPS Stock Theft Unit situated
in
Kimberley and reported the suspicious vehicle. Bezuidenhoudt
commenced observing the T-junction where the Kimberley/Schmidtsdrift
Road meets the Kimberley/Douglas tar road. In due course the Ford
arrived at the T-junction, turned right, and drove toward Douglas.
Bezuidenhoudt followed the Ford until it turned again and entered the
farm Koppiesdam. Two officers of the SAPS Stock Theft Unit,
Sergeant
Mokgalagadi and Warrant Officer Bean, made their way to Koppiesdam.
They entered the farm and found the First Respondent,
a Mr John
Thabang Hoogstaander, Bezuidenhoudt, other farmers of the area, and
the Ford there. Bean noticed fresh blood and the
hair of a kudu on
the back of the Ford. He did not see any damage to the Ford.
Initially the First Respondent and Hoogstaander
told Bean that the
blood belonged to springbucks which they had shot earlier that day,
and that the rifle they had used was at
the First Respondent’s
home. However, upon further investigation, Bean discovered the
carcasses of two female kudus with
gunshot wounds to the heads and
throats cut open in the veld, and the Sako in a rifle bag behind a
dam. Bean searched the Ford
and found two .222 calibre cartridges in
the vehicle. Whilst still on the farm, Du Toit contacted Bean and
informed him that Du
Toit had found a pool of blood and drag marks
against the fence of the farm Kingston that is also located on the
Kimberley/Schmidtsdrift
gravel road. The following day Ms Anna Van
der Merwe of the farm Kalkdam informed Du Toit that she had found a
pool of blood in
her veld, that the fence of her farm had been cut,
and that there were drag marks visible on the ground indicating that
an animal
had been dragged through the cut fence and toward the road.
The First Respondent and Hoogstaander were arrested on the night of
the 29
th
of November 2018, and the Ford and the Sako were
seized by the SAPS.
[7]
As a result of the events of the 29
th
of November 2018 the
First Respondent and Hoogstaander were charged in the Regional Court
with three counts of contravention of
the Northern Cape Nature
Conservation Act 9 of 2009 (“
the Nature Conservation
Act
”). The charges related to what transpired on the
29
th
of November 2018, and not to the earlier occurrences
referred to above. The Second Respondent was not charged with any
offence.
The First Respondent pleaded guilty to the charges and
admitted that the Ford and the Sako had been used during the
commission
of the offences. The First Respondent received a sentence
of a fine of R12 000.00- or 12-months imprisonment, and an
additional
two years imprisonment, wholly suspended for a period of
five years, on condition that the First Respondent not be found
guilty
of any similar offence during the said period.
The proceedings in
this Court
[8]
Subsequent to the events set out above, the National Director of
Public Prosecutions applied to
this Court for a preservation of
property order. On the 22
nd
of May 2020 this Court,
per Nxumalo AJ (as he then was), made a final preservation of
property order in terms of section 38 of POCA
in terms whereof the
Ford and the Sako were preserved. The upshot hereto is the
application for forfeiture that is the subject
of this judgment.
[1]
The issues to be
determined
[9]
The issues that must be adjudicated in this matter are threefold,
namely:
9.1
Whether the property are instrumentalities of an offence within the
meaning of the provisions of POCA;
9.2 If
so, whether the Second Respondent’s interest in the property
ought to be excluded based on the so-called
innocent owner defence
provided for in section 52(2A) of POCA; and
9.3
whether it would be disproportionate to order forfeiture of the
property in favour of the State.
Instrumentality of
an offence
[10]
Section 48(1) of POCA authorises the National Director of Public
Prosecutions to apply to a High Court for
an order forfeiting to the
State all or any of the property that is subject to a preservation of
property order. Section 50(1)
of POCA provides as follows:
“
50
.
Making
of forfeiture order
.
- (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.
”
[11]
The Applicant submits that the property are instrumentalities of an
offence referred to in Items 25 and 33
of Schedule 1 of POCA. Item 25
of Schedule 1 addresses offences of dealing in, being in possession
of or conveying endangered,
scarce and protected game or plants or
remains thereof in contravention of a statute or provincial
ordinance, whilst Item 33 deals
with any offence the punishment
whereof may be a period of imprisonment exceeding one year without
the option of a fine. The Second
Respondent has not disputed the
applicability of Items 25 and 33 of Schedule 1 of POCA.
[12] In
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd
2004
(8) BCLR 844
(SCA)
(“
Cook
Properties
”
)
and
Prophet
v National Director of Public Prosecutions
2006 (1) SA 38
(SCA)
(“
Prophet
”
)
the Supreme Court of Appeal determined the approach that this Court
must take in an application for forfeiture in terms of POCA.
Mpati DP
(as he then was) summarised this approach in Prophet as follows:
[2]
“
In
National Director of Public Prosecutions v RO Cook Properties this
Court 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. At this
stage
the owner's culpability is not relevant. The only question is whether
a functional relation between property and crime has
been
established. 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 should be
excluded from the operation of the forfeiture order (section
52).
"Interests" include ownership. An owner is, therefore, not
precluded from applying that his/her full interest in
the property be
exempted. The statute requires persons with an interest in the
property, when opposing forfeiture or applying for
an exclusion of an
interest, to state that they acquired the property concerned legally
and that they:
(a)
neither
knew nor had reasonable grounds to suspect that the property in which
the interest is held is an instrumentality of an offence
referred to
in Schedule 1; or
(b)
where
the offence concerned had occurred before the commencement of this
Act, the applicant has since the commencement of this Act
taken all
reasonable steps to prevent the use of the property concerned as an
instrumentality of an offence referred to in Schedule
1(section
52(2A)).
(As will emerge later
in this judgment the appellant relies on neither (a) nor (b) above.)
It is at this second stage of the enquiry
that a proportionality
analysis "may . . . in addition be appropriate". So also
the owner's culpability.”
[13]
Section 1 of POCA defines an “
instrumentality
of an offence
”
as
“
any
property which is concerned in the commission or suspected commission
of an offence at any time before or after the commencement
of this
Act, whether committed within the Republic or elsewhere
.”
Our Courts have however held a narrow interpretation of the
definition of “instrumentality” to be appropriate,
as the
following dictum in Cook Properties states
[3]
:
“
[31] As
will appear when we discuss the individual cases, it is not necessary
for us to determine comprehensively what standard
applies, nor
(because of their outcome) to apply a proportionality analysis to the
appeals before us. For now it is enough to say
that the words
“concerned in the commission of an offence” must in our
view be interpreted so 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 a real
or substantial sense the
property must facilitate or make possible the commission of the
offence. As the term “instrumentality”
itself suggests
(albeit that it is defined to extend beyond its ordinary meaning),
the property must be instrumental in, and not
merely incidental to,
the commission of the offence. For otherwise there is no rational
connection between the deprivation of property
and the objective of
the Act: the deprivation will constitute merely an additional penalty
in relation to the crime, but without
the constitutional safeguards
that are a prerequisite for the imposition of criminal penalties.
”
[14]
The Court in Cook Properties found practical assistance in S v
Bissessue
1980 (1) SA 228
(N) and stated as follows at paragraph [32]
of the unanimous judgment:
“…
Here, despite its
different (and pre-constitutional) context, we find practical
assistance in S v Bissessue, where a magistrate
declared forfeit
a motor vehicle and fishing rods used in fishing without a licence
under an ordinance that, in addition to a criminal
penalty, required
the court to declare any article used “in, for the purpose
of,
or
in connection with the commission of the offence” forfeit. On
appeal the forfeiture of the fishing rods was upheld, but
that of the
vehicle was set aside. The court held that “to qualify for
forfeiture the thing must play a part, in a reasonably
direct sense,
in those acts which constitute the actual commission of the
offence in question”. The same in our
view applies to
“instrumentality of an offence”. As suggested in NDPP
v Prophet, the determining question is whether
there is a
sufficiently close link between the property and its criminal use,
and whether the property has a close enough relationship
to the
actual commission of the offence to render it an instrumentality.
Every case will of course have to be decided on its own
facts.”
[15]
The Applicant submits that the property ought to be considered as
instrumentalities of an offence as: (i)
the Ford was employed to
drive to the places where the kudus were shot with the Sako, loaded
onto the Ford and transported to Koppiesdam;
(ii) the Ford and the
Sako were used more than once for illegal hunting and the instance on
the 29
th
of November 2018 was not a once-off act; (iii)
the Ford was fitted with an LED-light used to light toward the ground
in front of
the Ford so as not to be visible to other road users,
(iv) the property were directly linked to the carrying out of the
offences,
were not merely incidental to the carrying out of the
offences and formed part of the offences, and (v) the First
Respondent could
not perpetrate the offences without the property.
[16] On
behalf of the Second Respondent it was submitted that the property
cannot be regarded as instrumentalities,
as the mere use thereof does
not satisfy the requirements of POCA set out above. The property was
not integral to the commission
of the offences, as the First
Respondent could have utilised any similar property, which are
commonly available, to commit the
offences. Furthermore, the Second
Respondent did not conspire with the First Respondent to commit the
offences, and the Ford was
not specially adapted to make the
commission of the offences possible.
[17] I
am satisfied, on a balance of probabilities, that a sufficiently
close link between the property and the
offences committed has been
established to warrant a finding that the Ford and the Sako are
instrumentalities of the offences.
The property facilitated or made
possible the commission of the offences. In the words of
National
Director of Public Prosecutions v Carolus and Others
[4]
and
National
Director of Public Prosecutions v Seleoane and Others
[5]
,
they were the very means by which the hunting and transporting of
game and protected animals in contravention of the Nature
Conservation
Act took place. The property was not merely incidental
to the commission of the offences but were in fact instrumental
therein.
This finding is further supported by the authorities of
NDPP
v Swart
2005 (2) SACR 186
(SE)
and
National
Director of Public Prosecutions v Engels
2005 (3) SA 109
(C)
.
[18]
Except for the issue of the LED-light fitted unto the Ford, on which
there was some debate at the hearing,
I agree with the propositions
of the Applicant, and they are relevant factors supporting the
finding that the property are instrumentalities
of the offence. On
the basis of Plascon-Evans
[6]
, I
must find that the LED-light fitted unto the Ford was for benign
purposes, and not for any purpose related to illegal hunting.
[19] It
is more probable than not that the First Respondent was involved in a
pattern of sustained activity, and
not just in the events of the 29
th
of November 2018. The facts set out in paragraphs [2] to [5] above
span over a time-period of at least two months, if not more,
and were
detailed in several supporting affidavits forming part of the
Applicant’s founding papers. Only the Second Respondent
filed
opposing papers throughout the proceedings and could plausibly deny
knowledge of the events preceding the 29
th
of November
2018. Tellingly, the person who could deny the events preceding the
29
th
of November 2018 or could provide an explanation
which would negate his involvement, the First Respondent, chose not
to file answering
papers. I must therefore conclude that there is
veracity in the averments of a pattern of sustained activity by the
First Respondent.
Cilliers’ statement in his supporting
affidavit that the poaching of game came to an end after the arrest
of the First Respondent
is further noteworthy in this regard.
[20] I
agree with the Second Respondent that the mere use of the property
would not satisfy the requirements of
POCA relating to
instrumentality of an offence. That much is clear from the statutory
definition of instrumentality quoted above,
and the interpretation
thereof found in Cook Properties. The First Respondent’s
employment of the property however went beyond
mere use, and I have
already found that the property was integral in the commission of the
offences. As to the argument that the
property was not integral to
the commission of the offences as the First Respondent could have
utilised any similar property, which
are commonly available, to
commit the offences, such an extremely narrow interpretation of the
meaning of ‘instrumentality’
does not accord with the
provisions of POCA and the interpretation thereof by our courts, as
such a proposition would operate to
exclude from forfeiture any
property which has not in some way been specially adapted for the
commissioning of an offence, something
which the legislature clearly
did not intend. I furthermore agree that there is no indication in
the papers that the Second Respondent
conspired with the First
Respondent. Even so, my conclusion of the property being
instrumentalities of an offence remain undisturbed.
The innocent owner
defence
[21] I
may now proceed to the second leg to the Second Respondent’s
opposition to the application, being
his reliance on the so-called
innocent owner defence encapsulated in section 52(2A) of POCA.
Section 52(2A) provides as follows:
“
(2A)
The High Court may make an order under subsection (1), in relation to
the forfeiture of an instrumentality of an offence referred
to in
Schedule 1 or property associated with terrorist and related
activities, if it finds on a balance of probabilities that the
applicant for the order had acquired the interest concerned legally,
and—
(a)
neither
knew nor had reasonable grounds to suspect that the property in which
the interest is held is an instrumentality of an offence
referred to
in Schedule 1 or property associated with terrorist and related
activities; or
(b)
where
the offence concerned had occurred before the commencement of this
Act, the applicant has since the commencement of this Act
taken all
reasonable steps to prevent the use of the property concerned as an
instrumentality of an offence referred to in Schedule
1 or property
associated with terrorist and related activities.”
The provisions of subrule
(b) to section 52(2A) do not find application herein.
[22]
Section 52 of POCA casts an onus on the owner of the property
concerned to prove certain facts on a balance
of probabilities before
the Court can make an exclusionary order.
[7]
[23] In
the matter at hand, it is not contentious that the Second Respondent
acquired ownership of the Ford and
the Sako legally. What is in
contention is the Second Respondent’s assertion that he did not
know nor had reasonable grounds
to suspect that the property is an
instrumentality.
[24] On
the papers there is some uncertainty whether the Second Respondent
and the First Respondent were still
residing in the same residence at
the time that the offences were committed. It is clear though that
the First Respondent used
the Ford as he did not have a vehicle of
his own. On the Second Respondent’s version, the First
Respondent used the Ford
to earn an income from time to time, to
perform tasks for the Second Respondent and his wife, to transport a
motorcycle and, in
general, for his private use. There is no
indication in the opposing papers that the First Respondent was
employed at the time
of the offences. The Sako was kept in a safe at
the residence where at least the Second Respondent’s wife and
the First Respondent
were residing. They had unfettered access to the
safe. In this regard the Second Respondent explained that it was
necessary for
the First Respondent and his wife to have access to the
safe as a side-arm was kept in it and they needed access thereto for
the
purposes of self-defence.
[25]
Initially, the Second Respondent stated in his answering affidavit in
the preservation proceedings that he
was not aware that the First
Respondent was involved in any illegal activities. He further
asserted that he did not authorise the
First Respondent to use the
property for illegal purposes. It was the version of both the First
Respondent (in his plea explanation
in the criminal proceedings) and
the Second Respondent that the Second Respondent was not aware that
the First Respondent had taken
the Sako out of the safe, or for what
purpose the First Respondent would use the Ford on the 29
th
of November 2018. The Second Respondent however did not dispute the
communication that he had had with Ralph on the 22
nd
of
November 2018. This was a week before the events of the 29
th
of November 2018. At the time, Ralph informed him about the
allegations that the First Respondent was involved in the poaching
of
game and was utilising the Ford for this purpose. This was conveyed
to the Second Respondent telephonically and via ‘
WhatsApp
’,
and the photographs of the Ford and the game taken by Van Dyk and
Cilliers were forwarded to the Second Respondent. At
this point in
the Second Respondent’s answering affidavit his responses
become rather peculiar. He stated that he was initially
unable to
speak to Ralph, as he had a client with him. When he phoned Ralph
back, he told him that he was not aware of the facts
and that Ralph
should “sort it out” with the First Respondent. In
paragraphs 16 and 17 of the answering
affidavit the
Second Respondent stated as follows:
“
16.
Ek het toe vir Franco ook geskakel en was sommer baie kwaai met hom.
Ek het teenoor hom genoem dat ek die fotos van Shaun
gekry het en dat
hulle die ding moet uitsorteer.
Ek
was baie kwaad om te hoor dat hy by sulke goed betrokke was / is.
17.
Franco, die Eerste Respondent, is ‘n volwasse persoon van 27
jaar oud en ek
het
geglo dat hy, as daar enige onwettighede was, dit sou regstel
.
Ek het nie vermoed of geglo dat daar
weer
voorvalle
sou wees nie. Ek het dus nie gedink dit nodig sou wees om drastiese
stappe te neem nie. Franco het feitlik uitsluitlik
die betrokke
bakkie gebruik en kon nie daarsonder sy dag-tot-dag take verrig nie.
Ek was verder ook nie bewus daarvan dat Franco
self ‘n
vuurwapen gebruik het, en indien wel, watter vuurwapen nie. Die
omstandighede, bv. of daar ook ander persone betrokke
was, was
onbekend aan my”
(my
emphasis added).
[8]
Based on the aforesaid
paragraphs, the Second Respondent did not unequivocally deny the
possibility that there was truth to the
allegations that the First
Respondent had been involved in illegal poaching activities prior to
the 29
th
of November 2018, nor did he assert that he did
not have reason to believe the veracity of the allegations. His
attitude toward
the allegations seemingly were that the First
Respondent was an adult and that the First Respondent would need to
address the possible
illegalities. This, however, negates the fact
that both the Ford and the Sako were registered in the Second
Respondent’s
name and that the Second Respondent bore the
responsibility for the way the property was utilized.
[26] It
has not been suggested, nor can I find, that the Second Respondent
knew of the First Respondent’s
illegal activities on the 29
th
of November 2018 or participated therein. However, based on the
Second Respondent’s own version, I am compelled to find that
the Second Respondent did not discharge the onus, on a balance of
probabilities, to show that he did not have reasonable grounds
to
suspect that the property was an instrumentality of an offence.
[27] In
Cook Properties, the Court held as follows regarding the
responsibility of property owners:
“
[28] Mr Kuper
for the NDPP in Cook Properties and 3[...] G[...] Street argued that
the Chapter is intended “to recruit property
owners into an
active role” as guardians of their property against crime. We
agree that property owners cannot be supine.
In particular, we
endorse the notion that the State is constitutionally permitted to
use forfeiture, in addition to the criminal
law, to induce members of
the public to act vigilantly in relation to goods they own or possess
so as to inhibit crime. In a constitutional
State law-abiding
property-owners and possessors must, where reasonably possible, take
steps to discourage criminal conduct and
to refrain from implicating
themselves or their possessions in its ambit. And the State is
entitled to use criminal sanctions and
civil forfeitures to encourage
this. Here constitutional principle recognises individual moral
agency and encourages citizens to
embrace the responsibilities that
flow from it.
[29]
We therefore agree that the Act requires property owners to exercise
responsibility for their property and
to account for their
stewardship of it in relation to its possible criminal utilisation…
”
[28] In
the circumstances of this matter, to have discharged the onus, one
would have expected of the Second Respondent
to have done more than
merely giving the First Respondent a stern talking to and to trust
that the First Respondent, as an adult,
would not involve himself in
any further possible offences. I am of the view that the law expected
of the Second Respondent to
at least have investigated the
allegations of poaching properly, and at the very least to have
restricted the First Respondent’s
access to the means by which
potential further offences could be committed. In the circumstances,
the Second Respondent unfortunately
cannot avail himself of the
innocent owner defence.
Proportionality
[29]
The question that remains is that of proportionality, namely, to
determine on a balance of probabilities
whether the grant of a
forfeiture order would amount to an arbitrary deprivation of property
in contravention of section 25(1)
of the Constitution. In this regard
a thorough and very helpful analysis of all factors that ought to be
considered during this
analysis was provided by the Constitutional
Court in
Mohunram and Another v NDPP
2007 (2) SACR 145
(CC)
. I
have been guided by the principles stated therein and, save for what
I will allude to below, I do not find it necessary to repeat
verbatim
what was set out in paragraphs [56] to [102] of such case.
[30] In
paragraph [57] of Mohunram, Van Heerden AJ held as follows:
“
The
proper application of a proportionality analysis weighs the
forfeiture and, in particular, its effect on the owner concerned,
on
the one hand, against the purposes
the
forfeiture serves, on the other. The broader societal purposes served
by civil forfeiture under chapter 6 of POCA have been
held to
include:
·
removing incentives for crime;
·
deterring persons from using or allowing their properties to be
used in crime;
·
eliminating or incapacitating some of the means by which crime may
be committed; and
·
advancing the ends of justice by depriving those involved in crime
of the property concerned.”
[30]
According to the Second Respondent, the trade value of the Ford in
2020 was the amount of R124 000.00.
(I accept that the value of
the Ford would have decreased significantly by the time that this
judgment is delivered). The Second
Respondent further estimated the
value of a new Sako rifle with a telescope to be an amount of
R25 000.00, and the second-hand
value thereof to be R13 000.00.
These estimates were accepted by the Applicant at the hearing. The
value of the kudus, if
hunted, were put by the Second Respondent at
R4 000.00 per animal, and therefore R8 000.00 in total.
Based on these figures
alone, it was argued on behalf of the Second
Respondent that forfeiture of the property would be disproportionate.
As I have shown
in the previous paragraph, these are not the only
considerations to bear in mind. Of course, I have already found that
it is more
probable than not that the events of the 29
th
of November 2018 were not a once-off occurrence, and the Second
Respondent’s estimates therefore do not consider the other
losses that were probably suffered by all the affected farmers in
both the loss of game, damage to property, and time and money
spent
in bringing the First Respondent and his accomplice to book.
[31] I
must also bear in mind that the Second Respondent has already been
effectively deprived of the property
since 2018 for the duration of
the proceedings in this Court. Additionally, a criminal sanction was
imposed on the First Respondent,
and I referred to his sentence in
paragraph [7] above. It is also so that it was the First Respondent
who was sentenced, and that
thus far, but for the preservation of the
property, the Second Respondent has not suffered any consequence.
[32]
Contravention of the Nature Conservation Act is regarded as a serious
offence. The penalty clause of the
Act prescribes a maximum sentence
of both a fine and a period of imprisonment of ten years. As the Full
Court observed in
National
Director of Public Prosecutions v Mniki
[9]
:
“
[12] The
offence with which the respondent was charged related to hunting
protected wild animals without the requisite permit. The
uncontroverted evidence of Mike Eksteen of the department
of economic development and environmental affairs highlighted
the
prevalence of these offences. It appears to be widespread and
combating it is extremely difficult as it occurs mostly at night.
Conservation of our wildlife is a national priority and the ravages
of indiscriminate poaching is obvious. The animals poached
were in
all likelihood the property of other persons and the loss to them not
insubstantial…”
[33]
Taking all of the considerations set out above into account, I am not
persuaded that the forfeiture of the
property would be
disproportionate. I am of the considered view that an order for
forfeiture would serve the broader societal purpose
of deterrence and
would advance the ends of justice.
ORDER
[34] In
the premise the following order is made:
1.
In terms of the provisions of section 50 of
the Prevention of
Organised Crime Act 121 of 1998 (POCA), the following property seized
and held by the South African Police Service
(SAPS) under Kimberley
CAS 89/11/2018, which is currently subject to a preservation of
property order granted by this Court on
30 August 2019, is declared
forfeit to the State:
1.1
the Ford Ranger 2.5 Single Cab-motor vehicle with registration
numbers and letters C[...] 8[...] N[...],
chassis number A[...] and
engine number Q[...]; and
1.2
the .222 calibre Sako rifle with serial number 3[...].
2.
In terms of section 50(6) of POCA, paragraph
5 below shall take
effect 45 days after publication of a notice thereof in the
Government Gazette.
3.
The VSS Commanding Officer, Kimberley, will
take care of the property
and is hereby directed to continue acting as such for the purpose of
this order.
4.
Pending the taking effect of this order, the
property shall remain in
the custody of the VSS Commanding Officer, Kimberly.
5.
On the date on which this order takes effect,
to wit 45 days after
publication in the Government Gazette, the VSS Commanding Officer,
Kimberley, shall hand the property to a
Senior Special Investigator
of the Applicant, who shall:
5.1
Assume control of the property and take it into his custody;
5.2
Sell the property at a best price either by public auction or private
treaty;
5.3
Sign all documents necessary to effect the sale, transfer and
registration of the property; and
5.4
Pay the proceeds thereof, less any commission and incidental expenses
occasioned by the sale, into the
Criminal Assets Recovery Account
number 8[...] established in terms of section 63 of POCA.
6.
The Applicant is further directed to publish
a notice of this order
in the Government Gazette as soon as it is practicable.
A EILLERT
ACTING JUDGE
Date of
hearing:
29 January
2021
Date of
Judgment:
19 July 2024
On behalf of the
Applicant:
Adv. L Van
Dyk
(
Instructed
by NDPP)
On
behalf of the Second Respondent:
Adv
J.J Schreuder
(Instructed
by Engelsman Magabane Inc.)
[1]
Due to circumstances not entirely within my control the delivery of
this judgment has been significantly delayed. I regret this
delay,
and sincerely apologise to the parties involved.
[2]
At paragraph [11]
[3]
At paragraph [31]
[4]
1999 (2) SACR 27 (C)
[5]
[2003] 3 All SA 102 (NC)
[6]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634 - 635
[7]
See Cook Properties, paragraph [24]
[8]
Loosely translated, these passages read as follows:
16.
I then also phoned Franco and was quite angry with him. I told
him that I had received the photos from Shaun and that they should
sort the matter out.
I was very angry when I heard that he
was/ is involved in matters such as this.
17.
Franco, the First Respondent, is an adult who is 27 years old, and I
believed that,
if there were any illegalities, he would set
matters right
. I did not suspect or believe that the incidents
would occur
again
. I therefore did not think that it was
necessary to take drastic steps. Franco in fact utilised the bakkie
exclusively and could
not perform his day-to-day tasks without it.
Furthermore, I was not aware that Franco himself had used a
fire-arm, and if so,
which fire-arm. The circumstances, for instance
if others were also involved, were unknown to me.
[9]
(CA 85/2011) [2011] ZAECGHC 41 (25 August 2011)