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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
REPUBLIC OF SOUTH AFRICA
CASE NO: 037201/2024
In the matter between:
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant
and
TYRELL BLYTHE VENTER First Respondent
INNOCENCHIA LAUDECHIA VENTER Second Respondent
____________________________________________________________________________
JUDGMENT
____________________________________________________________________________
Mahosi, J
Introduction
[1] This matter comes before this Court by way of an application for the
reconsideration of an order granted in terms of section 38 of the Prevention of
Organised Crime Act 1 (“POCA”) on an ex parte basis on 18 April 2024. The order,
1 Act 121 of 1998.
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granted, preserved the respondents’ immovable property, pending the final
determination of a forfeiture application under Chapter 6 of the POCA.
[2] The applicant, the National Director of Public Prosecutions (“the NDPP”), alleges
the property is the proceeds and an instrumentality of the offence of dealing in drugs, a
scheduled 1 offence under POCA. The first and second respondents (“the
respondents”) are the registered owners of the property and seek the reconsideration of
the preservation order. They deny the allegations and challenge both the procedure
followed and the substantive merits of the NDPP’s case.
Factual background
[3] The core allegations of the NDPP, as contained in the founding affidavit, are that
the property described as Erf 7 […] Florida Township, Registration Division IQ, Province
of Gauteng, held by Deed of Transfer T[…], and situated at Number 3[ …] S[…] Avenue,
Corner of Ruth Street, Florida, 1[ …] (“the property”) is used by its tenants as a base for
the dealing in narcotics. The affidavit details several police operations, including
surveillance and information from confidential sources, indicating a high frequency of
short-duration visits to the premises at all hours, consistent with drug trafficking.
[4] In January 2022, an investigation called "Operation Dragoon" was initiated to
gather intelligence on illegal activities at a property. Sergeant Petrus van der Linde led
this investigation, which uncovered ongoing drug dealing, specifically cannabis, by an
individual named Brian Matemela. An undercover agent successfully made a controlled
purchase of cannabis from Matemela for R400. The property featured controlled access
and a high boundary wall. Following the controlled buy, search and arrest warrants were
issued and executed on 24 May 2022. Although Matemela was not present during the
raid, the first respondent was present, and the police warned him of the illegal activities
taking place on the property.
taking place on the property.
[5] Nevertheless, the illegal activities persisted at the property. Between July and
October 2022, at least three arrests were made for narcotics possession linked to the
property. On 27 October 2022, Sergeant Van der Linde and colleagues served the
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respondents with a written warning advising of the continued illegal activities and
warning them to cease them. However, the drug-related offences continued, resulting in
several arrests from November 2022 to October 2023.
[6] The respondents, in their pleadings, do not squarely engage with the detailed
allegation of police surveillance. Instead, they deny that the tenants are drug dealers
because the latter assured them they are not. They confirm that the police advised them
of the suspected drug activity on the property. They state that, upon advice, they warned
the tenants and threatened them with eviction. They contend that the applicant has
provided no proof of drug dealing and argue that even if the tenants were dealers, their
activities do not render the property itself illegal.
Issues for determination
[7] Two issues fall for determination. The first is whether it was appropriate for the
NDPP to approach the Court on an ex parte basis for the preservation order. The
second is whether, on the evidence, there were and are reasonable grounds to believe
that the property is an instrumentality of an offence referred to in Schedule 1 of POCA.
Applicable law
[8] The relevant statutory framework is clear. Section 38 of POCA permits the NDPP
to apply ex parte for an order prohibiting any person from dealing in property which is,
on reasonable grounds, believed to be an instrumentality of a scheduled offence. An
“instrumentality of an offence” is defined in POCA as “ any property which is concerned
in the commission or sus pected commission of an offence. ” A property is an
instrumentality if it plays a sufficiently direct or functional role in the commission of the
crime. It is no t merely the scene of the crime. Instead, it must be shown to have been
used to facilitate the commission of the offence. Thus, a house used as a depot for
storing and distributing drugs plainly qualifies as such an instrumentality.
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storing and distributing drugs plainly qualifies as such an instrumentality.
2
2 See: 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
Seevnarayan 2004 (2) SACR 208 (SCA).
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[9] The test for a preservation order is whether the Court, on the facts presented,
holds a reasonable belief that the property is an instrumentality of crime. This is a prima
facie standard, lower than the balance of probabilities required for a final forfeiture
order. The purpose of the order is to prevent the property from being disposed of or
diminished in value pending the final forfeiture application.
[10] It is a trite law that proceedings under Chapter 6 of POCA are in rem (against the
property itself), not in personam (against the owner). Additionally, t he culpability or
knowledge of the owner is largely irrelevant to the question of whether the property was
an instrumentality. The owner’s innocence may be raised as a defence at the forfeiture
stage under section 52, but it does not bar the granting of a preservation order.
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Evaluation
[11] On whether it was appropriate for the NDPP to approach the Court on an ex
parte basis for the preservation order, I find no fault with the NDPP’s decision. This is
precisely the procedure contemplated by section 38 of POCA. The very nature of a
preservation order is preventative. I ts purpose is to surprise the respondents and
“freeze” the asset to prevent its dissipati on. Giving prior notice to the owners would
have defeated this purpose, as it could have allowed for the sale or mortgaging of the
property, or the destruction of evidence, before an order could be obtained.
[12] Furthermore, upon a perusal of the founding papers, I am satisfied that the
NDPP complied with its duty of uberrimae fides (utmost good faith), which requires an
applicant in an ex parte application to make a full and frank disclosure of all material
facts, including those that may be adverse to its case. The affidavit of Mr Skhumbuzo
Maphumulo, as supported by Mr Rankutoatsana's affidavit , sets out the evidence with
sufficient particularity and does not appear to conceal the owners’ lack of direct
involvement. The procedure was entirely appropriate.
involvement. The procedure was entirely appropriate.
3 See: National Director of Public Prosecutions v Phillips 2002 (4) SA 60 (W); Prophet v National Director
of Public Prosecutions 2006 (1) SA 38 (SCA).
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[13] Concerning the issue of whether reasonable grounds exist to believe that the
property is an instrumentality of an offence referred to in Schedule 1 of POCA, I am
satisfied that the NDPP has met the required threshold for a preservation order. The
detailed evidence of surveillance, the pattern of visitor traffic, and the two arrests linked
directly to the property provide ample foundation for a reasonable belief that the
property is being used as a nodal point for drug distribution. This evidence is not mere
suspicion or conjecture. It is concrete, albeit circumstantial, evidence from an
experienced law enforcement officer.
[14] The respondents’ argument is unconvincing for several reasons. Their denial
relies on the assurances of their tenants, which are self -serving and carry little weight
compared to the objective evidence provided by the police. Additionally, their claim that
there is no "proof" demonstrates a misunderstanding of the legal standard. The NDPP is
not required to prove its case at this stage conclusively. It only needs to demonstrate
reasonable grounds for belief. The evidence presented clearly meets this established
standard.
[15] Furthermore, the respondents' argument that the tenants' activities do not render
the property illegal is a misinterpretation of the law. The POCA does not declare
property "illegal"; instead, it allows for civil forfeiture if the property is deemed an
“instrumentality” of crime. It is the functional use of the property as a drug depot that
brings it within the scope of the Act, rather than the personal culpability of the owners. In
this context, the property, not the owner, is the respondent in rem.
[16] The respondents' actions upon being informed by the police are commendable.
They may well form the basis of a powerful "innocent owner" defence at the forfeiture
stage in terms of section 52 of POCA. However, for this interim preservation order, their
stage in terms of section 52 of POCA. However, for this interim preservation order, their
personal innocence is not a bar. The focus remains squarely on the use of the property
itself. The evidence establishes a reasonable belief that the property was used as an
instrumentality of drug dealing.
Order
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[17] Accordingly, the following order is made:
1. The respondents’ application for the reconsideration and discharge of the
preservation order granted on 18 April 2024 is dismissed.
2. The preservation order granted in terms of section 38 of the Prevention of
Organised Crime Act 121 of 1998 in respect of the immovable property
known as Erf 7[…], Florida Township, is confirmed.
3. The costs of this application shall be costs in the forfeiture application.
___________________
D. Mahosi J
Acting Judge of the High Court
Appearances
For the applicant: Advocate A Dabula
Instructed by: State Attorney
For the respondent: Advocate M Pinder
Instructed by: Nishlan Moodley Attorneys
Date of hearing: 16 April 2025
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives through email. The date for hand- down is deemed to be 23
September 2025.
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