About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2024
>>
[2024] ZAECMKHC 104
|
|
Mantella Trading 522 CC t/a Designer Lighting v National Director of Public Prosecutions (CA104/2022) [2024] ZAECMKHC 104 (25 September 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
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: CA 104/2022
In
the matter between:
MANTELLA
TRADING 522 CC
t/a
DESIGNER
LIGHTING
Appellant
and
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
APPEAL
JUDGMENT
DAWOOD
J:
Introduction
[1]
The appellant, Mantella Trading 522CC trading as Designer Lightning
(
Mantella
), sought leave to appeal against the judgment of
Rugunanan J where he granted judgment in favour of the respondent,
National Director
of Public Prosecutions (
NDPP
) in the
following terms: -
“
(i)
The property in the amount of R1 380 000 (one million three hundred
and eighty thousand
rand) is declared forfeited to the state.
(ii)
Mr Khayalethu Ncula who was appointed at preservation stage is hereby
directed to
forthwith deposit the aforesaid property in the amount of
R1 380 000 (one million three hundred and eighty thousand
rand)
into the Criminal Asset Recovery Account number 8[…]held
at the Reserve Bank.
(iii)
The respondent shall pay cost of the application.”
[2]
Mantella’
s application for leave to appeal that was
brought in the court a
quo
contained
inter alia
the
following grounds of appeal: -
(a)
That the court
a quo
failed to apply the proportionality test.
(b)
That the court
a quo
misdirected himself in finding that
Mantella should have applied for an exclusion in terms of section 52
of the Prevention of Organised
Crime Act 121 of 1998 (POCA) and that
Mantella has the
onus
.
(c)
That the court
a quo
misdirected himself in the application of
the rule in
Plascon-Evans
.
(d)
That the court
a quo
misdirected himself in finding that the sum of R1380 000 paid to
the respondent by Victory Ticket was the proceeds of unlawful
activities because it constituted part and parcel of the sum of
R5895 000.00 paid by BCMM to Victory Ticket and should have
found that R688 560 was the property of
Mantella
.
(e)
That the court
a quo
failed to
have any adequate or proper regard to the findings and judgment of
Smith J regarding the limitation of the forfeiture
order to the
extent to which
Mantella
profited from the sale.
[3]
The court a quo based on the aforesaid application for leave to
appeal, granted
Mantella
leave as follows:
“
The
respondent (Mantella) be and is hereby granted leave to appeal to the
Full Court of this division
against the proportionality findings
made by this court
in its judgment and order handed down on 8
April 2021.” (own emphasis)
The
court a quo restricted the basis of
Mantella
’s appeal to
the proportionality findings only. This court accordingly is called
upon to exclusively deal with the proportionality
findings as this is
the only issue that was made the subject matter of the appeal. The
parties were accordingly obliged to restrict
their arguments to this
aspect.
[4]
Mantella
’s counsel attempted to convince this court to
hear arguments on inter alia the issue of unlawfulness and the other
points
that were part of the
Mantella
’s application for
leave to appeal. This approach cannot be countenanced in the present
circumstances having regard to
inter alia
the following: -
(a)
Those matters were raised in the application for leave to appeal.
(b)
Leave was not granted on those issues, despite the same being raised.
(c)
Mantella
could have sought leave to appeal from the Supreme
Court of Appeal on those issues if it intended to pursue those issues
and believed
that it had reasonable prospects of success on appeal in
respect of those additional issues.
(d)
Mantella
instead addressed this court in respect of those
issues claiming in its
viva voce
argument that it was entitled
to do so in terms of Rule 49 (b), when asked on what basis it claimed
on entitlement to argue those
issues.
(e)
This approach would not only be prejudicial to the NDPP, who came to
court to argue a case
of proportionality, but would also make a
mockery of the relevant procedure pertaining to appeals.
(f)
A party cannot simply ignore the order granted which restricts its
appeal to one point
and choose to nonetheless argue all the other
issues that had been pertinently raised in its application for leave
to appeal but
for which he was not granted leave.
(g)
This approach would defeat the purpose
of following the
procedure of obtaining leave to appeal from the judge whose judgment
a party wishes to appeal against.
(h)
There is a safeguard provided for a party who is dissatisfied with
that refusal, or in this
case, restriction of the issues on appeal.
(i)
Mantella
is not prejudiced by this court not considering the
additional points.
(j)
It had redress available in the form of applying for leave to appeal
to the
Supreme Court of Appeal, which it chose not to follow.
(k)
Mantella’
s
proposed approach would undoubtedly give rise to a dangerous
precedent, if permitted, since a party would be at large to argue
any, and every point whether leave was granted or not on those
issues, to the prejudice of the other party and in total disregard
of
the rules of court.
[1]
(l)
Mantella
has advanced no cogent reasons why this court should
entertain any argument on any other aspect save for that of
proportionality.
[5]
This court accordingly will only deal with the issue of
proportionality and accept
the findings of the court a quo on other
aspects. The court found as follows with regard to the issue of
whether or not the monies
were proceeds of unlawful activity: -
“
I
am satisfied that the Applicant (NDPP) has discharged the onus of
establishing that the amount paid to the respondent (Mantella)
constitutes the proceeds of unlawful activities …”
Legal
position
[6]
Jafta
J
writing for the majority of the Constitutional Court in
Botha’s
[2]
case
extensively dealt with POCA and the procedure to be followed and
found
inter
alia
:
-
(a)
That the proceeds of unlawful activities did not and could not
constitute property as envisaged
in section 25 (1) of the
Constitution;
[3]
(b)
That he sees the issue with regard to proportionality differently
from the first judgment
which concluded that a proportionality
exercise which is applicable in respect of instrumentality of an
offence equally applies
to forfeiture of proceeds of an unlawful
activity.
[4]
(c)
… That Ms Botha had no right in the money paid …there
can be no talk
of deprivation of a right in property.
[5]
(d)
He concluded by saying “
All
of the aforegoing reasons illustrate the
inappropriateness
of applying the proportionality analysis
in the case of a
forfeiture of proceeds of crime
in circumstances where the
person
from whom the proceeds taken does not have any interest which is
lawfully recognised
.”
[6]
(own emphasis)
[7]
Applying the above dicta in
Botha
’s case to the facts of
this case it is evident that: -
(a)
The sum of R1 380 000 that was paid to Mantella by Victory Ticket was
from the proceeds
of the R5 985 000 that was unlawfully paid to
Victory Ticket.
(b)
That the court
a quo
found that the said amount paid to
Mantella
indeed constitutes the proceeds of unlawful
activities.
(c)
The court
a quo’
s finding of unlawfulness is binding on
this court, as already indicated in the context that this appeal is
solely to be determined
on the issue of proportionality.
(d)
Mantella
accordingly does not have an interest in the sum of R
1 380 000 that is lawfully recognised.
[8]
This court accepts the unchallenged findings of the court a quo that
the amount paid
to
Mantella
is indeed proceeds of crime. The
court a quo’s reliance on
Botha
in respect of the
inappropriateness of employing the proportionality analysis cannot be
faulted. The
dicta
in
Botha
above finds application in
the circumstances. There can be no application of the proportionality
test in light of the fact that
the forfeiture was sought and granted
on the basis of the monies being the proceeds of unlawful activities
and accordingly
Mantella
had no interest thereto which is
legally recognised.
[9]
In the circumstances the following order is made:
(i)
The appeal is dismissed with costs.
F
B A DAWOOD
JUDGE
OF THE HIGH COURT
I
agree.
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
I
agree.
T
MADYIBI
ACTING
JUDGE OF THE HIGH COURT
Heard:
23
July 2024
Delivered
:
25
September 2024
Appearances
For
the Appellant:
Adv
R P Quinn SC & Adv L Mati
Chambers
on Beresford, East London
Instructed
by:
Schoombe
Van Der Nest Inc.
Attorneys
for the Appellant
39
Vincent Road
East
London
Tel:
043 743 1267
Email:
andres@schoombee.co.za
C/o:
Huxtable
Attorneys
22
new Street
Makhanda
Email:
law1@huxattorneys.co.za
For
the Respondent:
Mr
M Wolmarans
Attorney
for the respondent
5
Betram Street
Makhanda
Email:
marius@dullabhs.co.za
[1]
Harlech-Jones
Treasure Architects CC and Others v University of Fort Hare
2002
(5) SA 32
(E) at para 56.
[2]
National
Director of Public Prosecutions v Botha N.O. and Another
[2020]
ZACC6.
[3]
Botha
above at para 121.
[4]
Botha
above at para 122.
[5]
Botha
above
at para 127.
[6]
Botha
above
at para 131.