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REPUBLIC OF SOUTH AFRICA






IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)

CASE No:3898/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES : YES/NO
(3) REVISED : YES/NO
SIGNATURE: DIAMOND AJ
DATE: 19/06/2025

In the matter between:

NATIONAL DIRECTOR OF PROSECUTIONS APPLICANT

and

INAIDA NOEMIA DE ASSUCAO MATE REPONDENT


JUDGMENT

DIAMOND A J:

[1] The Responde nt is the registered owner of a farm, Portion 919 Toitskraal
Registration Division JS held by Title Deed number T […] ("the Farm") . As can be
determined from the title deed number, the Farm was registered in the name of the
Respondent during the year 2020.

[2] During April 2020, Warrant Officer Maleke Phoku ("Phoku") received
information from one Petrus Johannes Albert Meinties. All indications are that
Meintjies was at that stage still the registered owner of the Farm, since Phoku
established that the farm was held, at that stage, by title deed number T […]. The
information received from Meintjies bars, that there were illeg al activities on the Farm.

[3] During the period April to June 2020 and finally on 16 June 2020, Phoku and
other members of the South African Police Service conducted an operation on the
Farm, and, in the end, discovered, what can only be described as a l arge factory that
was used at that that stage to manufacture the illegal drug methamphetamine. These
facts are common cause or were or could not be disputed by the Respondent. A
several of unknown persons managed to flee from the farm. The South African
Police Services did manage to arrest individuals, a certain lfeani as well as one
Aldeo Mathe, which later turned out to be the brother of the Respondent. They were
arrested, and at least Mathe was later prosecuted.

[4] The Applicant applied, on 22 April 20 22, for a preservation order in terms of
the Prevention of Organised Crime Act, 1998 (Act 21 of 1998) ("POCA") of the Farm,
as well as a long list of movable assets, which list includes several vehicles. The
order was granted. As far as the Farm is concern ed, the order refers to the Farm
having been held by Deed of Transfer T 3828/2020.

[5] Before this court there is an application for the forfeiture of the preserved
assets, in terms of Section 48 of POCA.

[6] Section 48 of POCA reads as follows:

"48. Ap plication for forfeiture order. -(1) If a preservation of property order is in
force the National Director may apply to a High Court for an order forfeiting to
the State all or any of the property that is subject to the preservation of
property order.
(2) The National Director shall give 14 days notice of an application under
subsection (1) to every person who entered an appearance in terms of section
39 (3).
(3) A notice under subsection (2) shall be served in the manner in which a
summons whereby civil pro ceedings in the High Court are commenced, is
served.
(4) Any person who entered an appearance in terms of section 39 (3) may
appear at the application under subsection (1) -
(a) to oppose the making of the order; or
(b) to apply for an order -
(i) excluding his or her interest in that property from the
operation of the order; or
(ii) varying the operation of the order in respect of that
property,
and may adduce evidence at the hearing of the application."

[7] Section 50 of POCA reads 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.
(2) The High Court may, when it makes a forfeiture order or at any time
thereaft er, make any ancillary orders that it considers appropriate, including
orders for and with respect to facilitating the transfer to the State of property
forfeited to the State under such an order.
(3) The absence of a person whose interest in property may be affected by
a forfeiture order does not prevent the High Court from making the order.
(4) The validity of an order under subsection (1) is not affected by the
outcome of criminal proceedings, or of an investigation with a view to institute
such proceedi ngs, in respect of an offence with which the property concerned
is in some way associated.
(5) The Registrar of the Court making a forfeiture order must publish a
notice thereof in the Gazette as soon as practicable after the order is made.
(6) A forfeitur e order shall not take effect -
(a) before the period allowed for an application under section 54 or
an appeal under section 55 has expired; or
(b) before such an application or appeal has been disposed of. "

[8] Section 52 of POCA reads:

"52. Exclusion o f interests in property. -(1) The High Court may, on
application -
(a) under section 48 (3); or
(b) by a person referred to in section 49 (1),
and when it makes a forfeiture order, make an order excluding certain
interests in property which is subject to th e order, from the operation
thereof.
(2) The High Court may make an order under subsection (1), in relation to
the forfeiture of the proceeds of unlawful activities, if it finds on a balance of
probabilities that the Applicant for the order -
(a) had acquir ed the interest concerned legally and for a
consideration, the value of which is not significantly less than the value
of that interest; and
(b) where the Applicant had acquired the interest concerned after
the commencement of this Act, that he or she ne ither knew nor had
reasonable grounds to suspect that the property in which the interest is
held is the proceeds of unlawful activities.
(2A) The High Court may make an order under subsection (1), in relation to
the forfeiture of an instrumentality of an o ffence 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
comme ncement 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
relate d activities.
(3) (a) If an Applicant for an order under subsection (1) adduces evidence
to show that he or she did not know or did not have 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, the State may submit a return of the service on the Applicant
of a notice issued under section 51 (3) in rebuttal of that evidence in respect
of the period since the da te of such service.
(b) If the State submits a return of the service on the Applicant of a
notice issued under section 51 (3) as contemplated in paragraph (a},
the Applicant for an order under subsection (1) must, in addition to the
facts referred to in su bsection (2) (a) and (2) (b) (i), also prove on a
balance of probabilities that, since such service, he or she has taken all
reasonable steps to prevent the further use of the property concerned
as an instrumentality of an offence referred to in Schedule 1 or property
associated with terrorist and related activities.
(4) A High Court making an order for the exclusion of an interest in
property under subsection (1) may, in the interest of the administration of
justice or in the public interest, make that ord er upon the conditions that the
Court deems appropriate including a condition requiring the person who
applied for the exclusion to take all reasonable steps, within a period that the
Court may determine, to prevent the future use of the property as an
instrumentality of an offence referred to in Schedule 1 or property associated
with terrorist and related activities . "

[9] The case before me entails an application of Sections 48, 50 and 52 of POCA,
the case that falls in its entirety under Chapter 6 of POCA. Initially, the Applicant
obtained a forfeiture order by default, which was later rescinded, and both parties
were given the opportunity t o supplement their papers, and it is this supplemented
case and opposition that is currently before this court. I do not elaborate on the
sequence of events leading to the rescission of the initial judgement since nothing of
substance turns on that.

[10] It is appropriate to take a moment at this point to consider the nature of the
proceedings at this stage.

[11] Binns -Ward J, in NDPP v Van der Merwe & another1 ('van der Merwe ")
considered the nature as well as the procedural and evidential implications o f the
three sections, and what follows is a summary of the judgement contained in
paragraphs [7] - [19].

[12] What is important, for the purposes of this judgement, is what is stated in van
der Merwe as follows:

• Section 37 of POCA states that Chapter 6 proceedings shall be
adjudicated as civil proceedings and not criminal proceedings. That means
that parties need to discharge their respective onuses, on a balance of
probabilities.

• A court which is seized with the quest ion as to whether to grant a
forfeiture order in terms of Chapter 6 of POCA, must be astute in keeping the
following in mind: the process of adjudicating whether a forfeiture order should
be granted consists of two consequential, discrete steps.

• With th e first step, the court considers the requirements set out by
section 50 of POCA. This means that if the requirements of section 50 are
met, then the court "shall" makes the forfeiture order. The requirements are

1 [2011 ] JOL 26963 (WCC).
that the particular assets are "an instrume ntality" of an offence, or are the
proceeds of unlawful activities, or are associated with terrorist or related
activities. This duty of the court to make an order is tempered in an important
way, which I will refer later in this judgement.

• If a forfeit ure order is warranted, then the second discrete step comes
into consideration. This step comes into operation if a person who has an
interest in the property opposes the making of the order or applies for an
order excluding the interest in property from t he operation of the forfeiture
order, or varying its operation.

• Such an exclusion can be made if the court finds on a balance of
probabilities, in instances where the court must consider a forfeiture of the
proceeds of unlawful activities, that the Appl icant "...had acquired the interest
concerned legally and for a consideration, the value of which is not
significantly less than the value of that interest " and "where the Applicant had
acquired the interest concerned after the commencement of this Act, th at he
or she neither knew nor had reasonable grounds to suspect that the property
in which the interest is held is the proceeds of unlawful activities ."

• In instances where the court is to consider an instrumentality of an
offence forfeiture , then the co urt can exclude assets from a forfeiture order if
the Applicant succeeds to establish on a balance of probabilities that it
acquired the property legally and that the Applicant neither knew nor had
reasonable grounds to suspect this that the property is a n instrumentality of
an offence or where the offence concerned had occurred before the
commencement of POCA, the Applicant has since the commencement of this
act taken all reasonable steps to prevent the use of the property concerned as
an instrumentality o f an offence.

[13] A further factor comes into play when considering the first step, and that is the
question whether a forfeiture order could, in principle be made. As part as the first
step, the court is obliged to employ a proportionality enquiry, that is to consider
whether the granting of the order will be a proportional measure to achieve the
legislation's ends.2 This proportionality test is necessary to ensure that the
application of the forfeiture stipulation will be compliant with the dictates of section 25
of the Constitution.

[14] What should be kept in mind, is that when it comes to the proportionality test,
the innocence or guilt or culpability of the Respondent plays no role in the
consideration of proportionality. When it comes to the proportionality test, the
question is whethe r the effect of the forfeiture of the Respondent, irrespective of the
latter's blameworthiness or innocence, might show that the civil forfeiture order in the
circumstances to be a disproportional measure to achieve the legislation's ends.

[15] What is further important, is that as far as step one of the enquiries concerned,
the state bears the onus to adduce evidence showing that the forfeiture order should
be made. As far as step two of the enquiries concerned, the person applying for the
exclusion of the property from the exclusion order, bears the onus, to show on a
balance of probability, that the exclusion should be made.

[16] I will now turn to the facts of the case before me.

[17] The first step therefore is to con sider whether a forfeiture order is warranted
given the requirements of Section 50 of POCA, while applying the proportionality test.

[18] Section 50 of POCA stipulates that the court shall (obviously tempered by the
proportionality test) make a forfeiture order in any one of three instances, viz, where
the property was an instrumentality of an offence referred to in schedule 1, or where
the property is the proceeds of unlawful activities or, the property is associated with
terrorist and related activities.

[19] There can, in my view, not be any doubt that the immovable property as well
as the immovable properties which are the subject matter of this application, are
instrumentalities of an offence referred to in Schedule 1 of POCA. Item 22 of
schedule 1 of POCA refers explicitly to any offence referred to in section 13 of the

2 Par 13, van der Mer we.
Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992). Section 13 of Act 140 of
1992 stipulates that any transgression of section 3, 4 and of Act 140 of 1992, shall
constitute off ences.

[20] Methamphetamine is listed, in Schedule II, Part Ill of Act 140 of 1992 as an
undesirable dependence -producing substance and this schedule stipulates that any
dealing in or possession of such a substance is prohibited by sections 4 and 5 of Act
140 of 1992, and transgressions of section 4 and 5 are declared to be offences in
section 13.

[21] In my view therefore, there can be no doubt that the assets, that is the
movable assets as well as the immovable property, were instrumentalities of an
offence as is contemplated in section 50 of POCA. I say this for the following
reasons:

• The the South African Police Services caught individuals red handed
while manufacturing a prohibited substance.

• The area on which substances were found from which th e prohibited
substance would be manufactured comprised 22 stretched army tents and
37kg of methamphetamine with a street value of R 7 521 000 -00, was found
inside the tent, together with a variety of other substances and equipment.

• There were no other activities, such as farming activities of some
nature, on the farm and the farm itself is relatively small comprising only 65
hectares.

• There were no activities on the farm that could explain the presence of
the large number of vehicles and equipment on the farm. The only reasonable
inference is that the equipment had to be used in relation to at least the
manufacturing and transport of the banned substances.

[22] What remains to be considered as part of the first stage of enquiry, is whether
forfeiture order would be proportional to the purpose of POCA. In the judgement of
National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National
Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and another;
National Director of Public Prosecutions v Seevnarayan3 in paragraph 18, the court
gives a non -existent list of the objectives of the Applicant states it to be as follows:

" (a) removing incentives for crime; (b) de terring persons from using or
allowing their property to be used in crime, (c) eliminating or incapacitating
some of the means by which crime may be committed
("neutralising"...property that has been used and may again be used in crime);
and ... (d) advanc ing the ends of justice by depriving those involved in crime
of the property concerned."

[23] Van der Merwe states further4 that property only incidentally connected with
the commission of the offence shall thus not be subj ect to forfeiture in terms of
section 50 of POCA.

[24] Central to the explanations which the Respondent placed before the court in
support of the application for the exclusion of some of the assets (amongst others
the immovable property) from the forfeitu re order, on the following:

• The Respondent alleges that she is a businesswoman with interest in
several businesses. What is important is that these allegations are made in a
bald way, and she does not, as is required by Rule 6, place any evidence
before the court to substantiate allegations.

• She explains that she bought the farm with the purpose of developing a
pig farm to supply pork to a retail outlet in Gauteng. Important, once again, in
my view, is that there is no milligram of evidence, that the Respondent even
engaged in credible planning to develop the farm as a pig farm, or proceeded
in any way with the implementation of the pig farm project. The explanation is
nothing but a very short and bald explanation and it falls way short of an

3 [2004 ] 2 AII SA 491(SC A).
4 Paragraph 6.
explanati on that would be forthcoming from a seasoned businessperson
which she portrays herself to be.

• The Respondent explains that she bought the property by financing it
from the proceeds of her businesses, on the one hand, and on the other hand
by procuring a loan from family members in Mozambique. Once again, the
Respondent fails to attach any supportin g evidence, not even the slightest
proof, to support these allegations. She bought the property cash. What one
would have expected was some evidence such as bank statements indicating
the extent of cash flows that the alleged businesses generate, or bookke eping
even some attempt at a basic system that would substantiate allegations.
There is absolutely nothing, apart from the bald explanations.

[25] I am unable to find that this small farm and the moveable properties were
used or ever credibly intended to be used for a purpose other than the manufacturing
of substances prohibited by Act 140 of 1992. The drug manufacturing activities of the
farm were large and extensive, and in no way incidental to either the activities on the
farm or any possible intended a ctivities in the future. In my view therefore, it will not
be disproportional in any way to grant a forfeiture order with regard to the immovable
property as well as the movable properties which are currently subject to the
preservation order.

[26] Having arrived at the above conclusion, the second stage of the enquiry
arises. The Respondent applies that both the farm and the vehicles seized should be
excluded from the forfeiture order.

[27] Since it has been found above that the assets seized were instru mentalities of
an offence, the Respondent has the onus to prove on a balance of probabilities that
she acquired the interest in the properties legally, and further that she neither knew
nor had reasonable grounds to suspect that the property in which the i nterest is held
is an instrumentality of an offence.

[28] It is therefore clear that, at this stage of the enquiry, the Respondent has two
hurdles to cross, the first being that the interest concerned was acquired legally and ---
that she neither knew nor had reasonable grounds to suspect that the property in
which the interest is held is an instrumentality of an offence.

[29] If either one of these requirements set by section 52 of POCA, is not met,
then the application of the Respondent, to exclude the farm and the immovable
properties from the forfeiture order, must fail.

[30] The Respondent pins the activities of the farm on a certain Mr Smith, with
whom she alleged she entered i nto an agreement of lease of a portion of the farm,
and she attached the first two pages of copy of a document purporting to be a rental
agreement, to her section 35(3) affidavit. Two initials appear at the bottom of each
page, there is however no final ex ecution paragraph on the document nor full
signatures. In terms of this document, the lessee, Mr Smith rented the entire farm for
a period of six months from the Respondent, for an amount of R 22 000 -00 per
month.

[31] Despite the indication of the rental agreement that Mr Smith rented the entire
farm, the Respondent explains in an affidavit that Mr Smith only rented a small
portion of the Homestead camp, and that the Respondent would continue with her
operations. What is conspicuous is the explanation tha t a lessee would be willing to
rent "a small portion of the homestead camp", on a very small farm, which, according
to the admission of the Respondent has no water, for a substantial rental of R 22
000- 00, and that only for the six -month period. The Respo ndent did not indicate that
she tried to establish why Mr Smith would be willing to rent the small portion of the
homestead camp for such a short period of time, for a substantial monthly rental.

[32] The Applicant says that they tried to trace Mr. Smit h but was unable to do so.
The Respondent replied to this by saying that the Applicant did not do enough to
verify the whereabouts of the existence of Mr Smith.

[33] It is also common cause between the parties that the Respondent had a
previous conviction , in 2008, for an offence of the possession of and dealing in drugs
and further also was arrested for being in possession of 3 kg of drugs, and at the
time of the commissioning of the affidavit case was still pending.

[34] I will assume, for purposes of t his judgement, but without finding that the
Respondent did acquire the farm and the vehicles legally, although I find the
explanation by the Respondent as to how she acquired the properties, unconvincing.

[35] In my view, however, the attempt by the Respo ndent to deny knowledge of
the activities on the property and the presence of all the movable assets, on the farm
within the context of all the facts, is unconvincing.

[36] What the Respondent had to do was to prove on a balance of probabilities,
that she "neither knew nor had reasonable grounds to suspect that the property in
which the interest is held is an instrumentality of an offence ".5

[37] In my view the Respondent failed to prove this on a balance of probability.

[38] The allegations which the respondent places before the court consists largely
of consternation of bald allegations with out any substantiating evidence. In my view,
the explanations given by the Respondent are far -fetched and highly improbable. In
fact, on the basis of all the evidence set out above I am of the view that the contrary
can be inferred and that is that the Respondent knew that the properties were used
in the instrumentality of an offence.

[39] In my view therefore the application by the Applicant must succeed.

[40] I consequently make the following order:

1. An order is granted in terms of the provisions of section 50 of the
Preven tion of Organised Crime Act 121 of 1998 (POCA) declaring forfeit to
the state the following property:
1.1 Pieon Game Farm, portion 919 JS12 Toitskraal with title deed
number T […] situated at Toitskraal area of Marble Hall, Limpopo
Province and other property listed in SCHEDULE "A" seized by

5 Section 50(2 A)(a).
members of the SAPS in the Marble Hall Policing area on 16 June
2020 and held under case docket Marble Hall CAS 40/06/2020 (the
property) which property is presently subject to a preservation of
property order g ranted by this honourable court under the above case
number on 22 April 2022.
2. In terms of section 56(2) of the Act, the property shall vest in the State
upon granting of this order.
3. Subject to paragraph 4 below, the following shall apply:
3.1 The Re gistrar of Deeds shall, after the period mentioned in
paragraph 4 below has lapsed remove the endorsement on title deed
of the immovable property on being requested to do so by the
Auctioneer; and
3.2 The movable property shall remain in the custody of the SAPS
at the Seshego and Modimolle Police pounds under the control and
supervision of Lieutenant Colonel Moshopjadi Patricia Nkuna, the
SAPS investigator allocated to this case, until the expiry of this order in
terms of section 40 of POCA, or until this m atter is otherwise concluded.
4. Upon the expiration of a 45 days period after a notice of this order is
published in the Government Gazette, Mr Tirhani Ezekiel Mabunda of Tirhani
Auctioneers, or any other duly authorised employee of Tirhani Auctioneers, i s
authorised to:
4.1 Assume control of the property on behalf of the Applicant, and
the movable property must, subject to paragraph 4.2, remain in the
custody of the SAPS at the Seshego and Modimolle Police pounds,
respectively;
4.2 Sell the immovable a nd immovable property at best, either by
public action or private treaty;
4.3 Sign all documentation necessary to effect the sale, transfer and
registration of the property;
4.4 Deposit the proceeds from the sale of the property, less any
commission and in cidental expenses occasioned by the sale, into the
Criminal Asset Recovery Account established under section 63 of
POCA, account number 8 […] held at the South African Reserve Bank,
Vermeulen Street, Pretoria.
5. Mr Tirhani Ezekiel Mabunda, or any other duly authorised employee of
Tirhani Auctioneers shall as soon as possible but not later than a period of 90
days of i this order coming into effect, file a report with the Applicant indicating
the manner in which s/he complied with the terms of this Order .
6. Any person whose interest in the property concerned is affected by the
forfeiture order, may within 20 days after he/she has acquired knowledge of
such order, set the matter down for variation or rescission by the court.
7. Respondent shall pay the c osts of this application, and the costs of
counsel shall be determined on Scale B, of the relevant prescribed fee rule
applicable to the fees of counsel.



DIAMOND AJ