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
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 619/2024
In the matter between:
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT
And
SIMBA DAVID MAPHOSA RESPONDENT
Neutral citation: NDPP v Maphosa (619/2024) [2026] ZAFSHC 49 (9 February 2026)
Coram: Daffue J
Heard: 4 September 2025
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email and released to SAFLII. The date and time for hand- down is
deemed to be 16h00 on 9 February 2026.
Summary: Application for forfeiture order in terms of s 50(1) of the Prevention of
Organised Crime Act 121 of 1998 (POCA) in respect of several vehicles subject to a
preservation order – substantial amounts paid to different dealerships – respondent
made bald allegations unsupported by evidence or reason – no real, genuine or bona
fide dispute of fact on papers – forfeiture order granted.
2
ORDER
1 The following properties are declared forfeited to the State in terms of s 50(1) of
the Prevention of Organised Crime Act 121 of 1998 (POCA):
a. a Ford Ranger with registration number J K 1 […] , engine number Y […] and
chassis number A[…] ;
b. a Mercedes Benz with registration number JN 6[ …] , engine number 1[ …] and
chassis number W[… ];
c. a Toyota Hilux with registration number JV 2[ …] , engine number 2[ …] and
chassis number A[…] ;
d. a Toyota Corolla with registration number FL 4[ …] , engine number 3[ …] and
chassis number A[…] ;
e. a Toyota Conquest with registration number HHP […] engine number 4 [...],
engine number A[…] , (the properties).
2 Selinah Letuka (Letuka) shall take control of the propert ies listed in paragraph 1
supra and the U nit Commander of the Provincial Organised Crime Unit (DPCI)
Bloemfontein, Brigadier Ketlamoreng George Mofoyane, or a person authorised by him
in writing, is ordered to hand over the aforesaid properties to Letuka to be sold by her or
a person authorised by her in writing by public auction and to pay the proceeds of the
sale into the Criminal Asset Recovery Account (CARA) number 80303056 established
under section 63 of POCA, and held by the South African Reserved Bank.
3 Any person whose interest in any of the aforesaid properties is affected by the
forfeiture order , may within 20 days after requiring knowledge of s uch order, set the
matter down for variation or rescission by the court.
3
4 Letuka or a person authorised by her in writing, shall as soon as possible, but not
later than 90 days of this order coming into effect, file a report with the applicant on the
way they:
4.1 completed the administration of the aforesaid property mentioned above, and
4.2 complied with the terms of this order.
5 The respondent shall pay the applicant’s costs of the application.
JUDGMENT
Daffue J
Introduction
[1] This forfeiture application turns on the question whether five motor vehicles
belonging to one individual, purchased in cash over a period of 15 months in the total
amount of nearly R2 million, represents the proceeds of unlawful activi ties within the
meaning of the Prevention of Organised Crimes Act 121 of 1998 (POCA) and therefore,
liable to be declared forfeited to the State.
The parties
[2] The National Director of Public Prosecutions ( NDPP) is the applicant in this
application. Mr Simba David Maphosa is cited as the respondent.
The relief sought and the opposition thereto
[3] The NDPP seeks a declaratory order in terms of s 50(1) of POCA that the
following properties, which are subject to a preservation order, be forfeited to the State:
‘a. a Ford Ranger with registration number JK 1 […] , engine number Y […] and chassis
number A[…] ;
b. a Mercedes Benz with registration number JN 6[ …] , engine number 1[ …] and chassis
number W[…] ;
4
c. a Toyota Hilux with registration number JV 2[ …] , engine number 2[ …] and chassis
number A[…] ;
d. a Toyota Corolla with registration number FL 4[ …] , engine number 3 […] and chassis
number A[…] ;
e. a Toyota Conquest with registration number HHP […] , engine number 4[ …] , chassis
number A[…] , (the properties).’
[4] It is the respondent’s case that the NDPP is not entitled to a forfeiture order.
According to him, he is a rich businessman who could afford to purchase the properties
from the proceeds of his various lawful business activities. I quote some allegations in
support of his opposition of the forfeiture application verbatim:
(a) ‘I am a silent partner in various informal businesses and also make a living by operating
as a loan shark and also buy cars that are involved in accidents and other second hand cars
and thereafter on-sell them. . . .’
(b) ‘I make a living by being involved in many business ventures . . .’
(c) ‘I also make a living by renting some accommodation facilities in Welkom. . . .’
As proof of the last allegation above the respondent attached a confirmatory affidavit
and lease agreement at a monthly rental of R1 400 with one so -called subtenant, to wit
Mr Shau, a minor employed by Harmony Gold.
[5] The respondent stated the following in d ealing with allegation s that he had
purchased his motor vehicles in cash:
(a) ‘. . . the reality of many black township entr epreneurs or self-employed South Africans
make use of cash that has been derived lawfully. To give an example pertaining to me, being a
loan shark requires that I should have cash in my possession. . . .’
(b) ‘The deponent being a black person must know or ought to know about the to wnship
economy which includes gambling, loan shark and buying second hand cars and on-selling
them after refurbishing them.’
(c) ‘The deponent in the founding affidavit conveniently ignores the existence of the black
economy which exclusively makes use of cash . . .’
5
(d) ‘For an example these cars have been acquired over a period of m ore than five years . .
. To acquire cars to the value of just over two million in approximately five years is not
astronomical in today standard of living. Similarly the reference to the effect that my bank
account shows deposits of more than R1 447 930.00 in cash from 2016 to 2021 of which is a
period of approximately five yea rs does not without more indicate that the deposits alluded to
were proceeds of crime.’
(e) ‘The allegation that I have accumulated an amount of R3 984 590 during a period of
approximately five years is also not out of the ordinary since my loan shark business and the
buying of damaged cars and on-selling them involve a substantial amount of money . . .’
(f) ‘The township economy is replete with examples of dealing with cash including the well -
known phenomenon of stock -fell used by many communities in the black township. I was
involved with a stock fell during the relevant period when I acquired the property in question.
The deponent in the founding affidavit in support of the preservation order being a black man
ought to known these but presumably ignores such economic reality.’
[6] A written loan agreement dated 10 June 2019 is relied upon in terms whereof the
respondent borrowed money from a foreigner in the amount of R350 000. No proof is
provided to show that the capital amount of the loan has been obtained legally; also,
that the amount of R350 000 was actually paid over to the respondent . More
importantly, there is no proof that the loan has been repaid in six instalments of R58 900
as allegedly agreed upon, or at all.
Common cause facts
[7] On 8 February 2024 this court granted a preservation order in terms of s 38(1) of
POCA after having considered an urgent ex parte application. The order involved the
aforesaid five motor vehicles. On 1 March 2024 the preservation order was published in
the Government Gazette. Ex facie the return of service of the Deputy Sheriff of
the Government Gazette. Ex facie the return of service of the Deputy Sheriff of
Vereeniging, this order was personally served on 19 February 2024 on the respondent
at his residential address in Orange Farm . This address is reflected in the registration
certificates of his vehicles.
6
[8] The respondent belatedly filed a notice in terms of s 39(3) of POCA to oppose
the relief sought against him and the requisite affidavit in terms of s 39(5). These
documents were misfiled in the office of the State Attorney and did not come to the
attention of the NDPP at that stage.
[9] On 14 May 2024 the NDPP brought an application under s 48 of POCA for an
order declaring the properties subject to the preservation order forfeited to the State. It
is alleged that the properties are the proceeds of unlawful activities, specifically theft,
contravention of ss 4 and 5 of the Precious Metals Act 37 of 2005 and ss 4, 5 and 6 of
POCA, dealing respectively with money laundering, assisting another to benefit from the
proceeds of unlawful activities and the acquisition, possession or use of proceeds of
unlawful activities. On 23 May 2024 the forfeiture application was heard on an
unopposed basis whereupon the forfeiture order as requested was granted.
[10] An application for rescission of the forfeiture order followed. Although it was
opposed, rescission was eventually granted on 27 February 2025. Notwithstanding the
success achieved by the respondent, Hefer A J remarked in paragraph 27 of the
judgment that the respondent’s explanation relating to his residential address was
‘blatantly untruthful’. The learned judge also stated in paragraph 37 that ,
notwithstanding rescission of the forfeiture order, ‘the preservation order still stands .’
Therefore, and by agreement between the parties, the NDPP was called upon to file her
replying affidavit in response to the respondent’s aforesaid affidavit. This has been
done. Heads of argument have been filed, and I was called upon to consider the
forfeiture application on the merits based on the documents presented to me.
[11] The background to the litigation needs to be dealt with briefly. Project PAPPA G
was implemented to deal with unlawful activities pertaining to illegal gold mining, the
was implemented to deal with unlawful activities pertaining to illegal gold mining, the
theft of unwrought gold, the melting thereof and the selling thereof to gold smuggling
syndicates. The scope and seriousness of the illegal goldmining industry have been
documented in the papers before me. Although the respondent denies any illegality
and/or involvement with illicit gold mining activities, he was arrested following an
7
entrapment procedure and charged, although the charges were later withdrawn against
him. It is his case that the charges were withdrawn since the entrapment in terms of
s 252A of the Criminal Procedure Act 51 of 197 7 was unlawful and violated established
protocol. I shall not consider this issue herein, bearing in mind the provisions of POCA
and the authorities to which I shall refer hereunder.
[12] The following facts presented by the NDPP in respect of the respondent’s
financial transactions are largely common cause. I shall deal with the respondent’s
acquisition of properties in chronological order. Where there is disagreement, I shall
point that out. The respondent is born on 17 October 1993, which means that he turned
23 in October 2016. At that stage he was a client of First National Bank (FNB) as is
apparent from the bank statements presented by the NDPP . This remained the case
throughout the investigations. He was employed at a tuck shop till about March 2016.
[13] In October 2016, at the age of 23, he declared himself to be self -employed.
When a warning statement was taken from him much later, he refused to provide details
of his employment and or the address from where his activities were conducted. A
perusal of his personal bank statements confirms that there are no records of any salary
or drawings from a business or businesses indicated as income.
[14] Attorney MJ Willemse of Haasbroek -Willemse Inc (Willemse) made a statement,
relied upon by the NDPP . A certain Marilize Naudé ( Naudé) worked for him in the
conveyancing department . The respondent made four payments with the intention to
purchase several immovable properties . One was 2[…] L[…] Street, Doorn, Welkom
(Erf 5[… .] Welkom). The four payments were:
a. R322 890 in cash on 21 June 2016;
b. R95 000 in cash on 24 October 2016;
c. R55 000 by way of an EFT, originating from cash deposits on 24 October 2016;
and
d. R100 000 in cash on 27 October 2016.
8
[15] Naudé committed the offences of fraud and theft . Willemse established that only
R100 000 was deposited into his trust account, but on another client ’s name. Naudé
issued false receipts for the payments received by her. E ventually the respondent
issued summons against Willemse and Naudé in the Free State High Court . On 5
October 2021 an order by agreement was made in terms whereof j udgment was
granted in his favour for R472 890. At that stage the firm of attorneys, DV Inc, acted for
the respondent and this firm later attended to the transfer of Erf 5[… ], Welkom in the
name of the respondent.
[16] Also in 2016, the late Mr Lebona and his wife sold their property situated at 4
Ferdinand Street, Bedelia, Welkom to the respondent. Mrs Lebona made an affidavit to
relate what occurred. She knew the respondent as Themba Jackson, he also being a
member of her church congregation. They sold their house for R150 000 cash. The
respondent paid the purchase price but did not take transfer of the property into his
name. He made improvements to the property and a few months later , on 22 June
2017, the property was transferred directly from them to a certain Mr Sentso. The
property was sold for R520 000 and the date of sale is reflected in the official records as
18 November 2016. Mrs Lebona emphatically stated that Mr Sentso did not buy the
house from them, but from the respondent . However, the documentation presented in
the form of a deed of sale and proof of registration of transfer indicates a direct
transaction between the Lebonas and Mr Sentso. Upon registration of transfer , the firm
of attorneys, Neumann and Van Rooyen, paid over R471 510 to the respondent, being
the balance purchase price. They acted on the written instructions of the late Mr
Lebona.
[17] Immediately after payment of the R471 510 into his FNB bank account, the
respondent transferred R477 600 to M de Wet and Associates. On 1 December 2016
respondent transferred R477 600 to M de Wet and Associates. On 1 December 2016
the respondent signed an offer to purchase Erf 59[...] , also known as 5[ … ] J[…] Street,
Welkom. In providing his personal details, he stated that he was self -employed, but
instead of providing his income tax number as requested, he incorrectly mentioned the
9
following: ‘R240 000-00 p.a.’ The respondent purchased the property for R900 000
cash. The ledger account of Jawitz Estates with M De Wet and Associates shows that
between 30 January 2017 and 7 July 2017, a total amount of R1 009 550 was paid into
the trust account. It reflects the payment of R477 600 referred to above, as well as four
other bank payments of R100 000, R120 000, R40 000 and R5 000 respectively, as well
as a cash deposit of R140 000 and an amount paid by Jawitz Eiendomme of R76 950.
According to the respondent’s bank statement at FNB during this period, a total amount
of R531 950 could not be identified. Therefore, the respondent had additional cash in
that amount which is not reflected in his bank account . On 19 October 2017, Erf 952
was eventually registered in the name of the respondent. On 17 August 2022, less than
a year later, he sold the property for R1 030 000 to a certain Mr Duwayo.
[18] Having dealt with the immovable properties involving the respondent , it is now
time to consider the transactions pertaining to the five vehicles, the subject of the
forfeiture application. I emphasise that contrary to the respondent’s version, these
vehicles were not purchased over a period of five years, but from 23 October 2019 to 27
January 2021, being a period of about 15 months.
[19] On 23 October 2019, a Ford Ranger with registration number JK 12 MS GP was
purchased from Vereeniging Auto for R650 000 in cash. No credit agreement was
entered into. T he vehicle was registered in the respondent’s name as owner and title
holder. The respondent’s bank statements from 3 January 2019 to 3 January 2020 do
not reflect any payments to the motor dealer . There was just not nearly enough money
in the account to settle the purchase price.
[20] On 11 July 2020 the respondent purchased a Toyota Corolla with registration
number FL 4[…] from We Buy Cars (Pty) Ltd in the amount of R141 500. It was paid for
number FL 4[…] from We Buy Cars (Pty) Ltd in the amount of R141 500. It was paid for
in cash. N o credit agreement was entered into. T he vehicle was registered in the
respondent’s name as owner and title holder. The respondent’s FNB account shows
cash deposits from Automated Deposit Teller (ADT) machines to enable respondent to
settle the purchase price. The respondent failed to explain these cash deposits.
10
[21] The Mercedes Benz AMG with registration number JN 6[…] was purchased on
15 October 2020 by the respondent for R658 700 from Northcliff Exclusive Cars. Again,
it was paid for in cash. N o credit agreement was entered into. The respondent’s bank
statements reveal seven transactions totalling R1 078 700 paid to Northcliff Exclusive
Cars, whilst this amount was accumulated earlier through cash deposits into his
account. These payments to Northcliff Exclusive Cars were made from 25 September
2020 to 16 October 2020, ie within a period of 21 days. The respondent failed to explain
these cash deposits.
[22] On 10 November 2020, the respondent purchased a Toyota Conquest with
registration number HHP [ …] for R51 400 from We Buy Cars . It was paid for in cash,
and no credit agreement was entered into. The vehicle was registered in the
respondent’s name as owner and title holder.
[23] The fifth vehicle, a Toyota Hilux with registration number JV 2[ …] was purchased
on 27 January 2021 for R460 00 in cash from Easy Auto Fin Cars. The respondent paid
the purchase price as follows:
a. on 8 January 2021 in the amount of R25 000 by making use of Smartapp;
b. on 13 January 2021 in the amount of R135 000 by making use of Smartapp; and
c. on 26 January 2021 in the amount of R300 000 by way of a cash deposit at FNB
Southgate Mall into Easy Auto Fin Cars account.
The respondent relied on seven cash deposits from ADT machines into his account on
the same day, to wit 13 January 2021, to pay the R135 000 on that day . The vehicle
was registered in the respondent’s name as owner and title holder.
[24] During the period 201 6 to 2021 the respondent’s bank account received cash
deposits in the amount of R1 447 930 without any audit trail. It is alleged by the NDPP
that he had possession of and/or caused cash to be physically transported 270 times to
11
an ADT machine for those funds to be deposited into his FNB bank account . The
extracts from the respondent’s bank accounts relied upon by him and attached to the
answering affidavit serve as proof of the numerous ADT cash deposits into his bank
account which he failed to explain.
Legislation and authorities
[25] Chapter 6 of POCA deals with civil recovery of property in ss 37 to 62 thereof .
Although the chapter provides for forfeiture of the proceeds of crime, it is not conviction
based and may be invoked even in the absence of a prosecution as confirmed in
National Director of Public Prosecutions and Another v Mohamed NO.
1 The unlawful
activity does not have to be committed by the holder or owner of the property, but it is
sufficient for it to have been committed. The guilt or wrongdoing of the owner or
possessor is of no relevance to these proceedings . This conclusion is supported by the
wording of s 50(4) of POCA which reads as follows:
‘(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 proceedings, in respect of an
offence with which the property concerned is in some way associated.’
[26] Section 50(1) of POCA stipulates that the High Court shall, subject to s 52, make
an order applied for under s 48(1) if it finds on a balance of probabilities that the
property concerned is either ( a) an instrumentality of an offence referred to in S chedule
1, or ( b) the proceeds of unlawful activities, or ( c) is property associated with terrorist
and related activities. In casu, the NDPP relies on sub-sec 50(1)(b) only.
[27] In National Director of Public Prosecutions v Moyane
2 (Moyane) the Supreme
Court of Appeal held that Monyane’s version was far-fetched and that he ‘failed to raise
real, genuine and bona fide disputes of fact in relation to the source of funds used to
finance the acquisition of the vehicle’. This was concluded based on the totality of the
finance the acquisition of the vehicle’. This was concluded based on the totality of the
evidence and in particular Monyane’s failure to produce any documentation in the form
1 National Director of Public Prosecutions and Another v Mohamed NO 2002 (2) SACR 196 (CC) para 16.
2 National Director of Public Prosecutions v Moyane [2022] ZASCA 79 paras 15-20 and 28-32.
12
of invoices, book entries , contracts or financial statements in support of his allegation
that he lawfully earned the monies used to pay the purchase price of the vehicle in that
case.
[28] A respondent bears an evidentiary burden to show that the proceeds used to
purchase the property emanated from a legitimate source. Section 52 of POCA places
an onus on the party seeking to exclude the interest from the operation of the order to
show that such interest has been legally acquired. The first two sub- secs read as
follows:
‘(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 the 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 acquired the interest concerned legally and for a consideration, the value of which is
not significantly less than the value of that interest; and
(b) . . .’
There is indeed a duty on such party to adduce evidence pertaining to the legitimacy of
an acquisition. Therefore, respondent s need to support their allegations with proof if
they want their versions to be accepted as tenable.
[29] The following definitions in POCA are applicable:
a.
‘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.’
13
b. ‘property’ is described as ‘money or any other movable, immovable, corporeal or
incorporeal thing and includes any rights, privileges, claims and securities and any interest
therein and all proceeds thereof.’
c. ‘unlawful activity means any conduct which constitutes a crime or which contravenes any
law whether such conduct occurred before or after the commencement of POCA and whether
such conduct occurred in the Republic or elsewhere.’
[30] In National Director of Public Prosecutions and Another v RO Cook 3 the court,
having to determine whether property formed part of proceeds of unlawful activities,
held as follows:
‘Bearing in mind that the objective of the Act is to render forfeit the returns that might accrue
from unlawful activity, we consider that the 'connection' the definition envisages requires some
form of consequential relation between the return and the unlawful activity. In other words, the
proceeds must in some way be the consequence of unlawful activity.’
4
[31] The term, ‘unlawful activities’, as envisaged in POCA does not refer to any
contraventions of the law which do not amount to criminal conduct. T he Supreme Court
of Appeal held in Bobroff and Another v the National Director of Public Prosecutions 5 as
follows:
‘. . . The purpose of s 50(1) of the POCA, as read with the definition of ‘proceeds of unlawful
activities’, in the context of the known developments worldwide in relation to transnational crime,
is to strip offenders of the proceeds of their crime wherever they may retain it.’6
Later in the judgment the court made the following statement:
“Where proceeds of crime have been laundered with the very purpose of disguising the origin and identity
thereof, they may be mixed with other assets which may not be the proceeds of crime, and they may be
converted into other forms of asset which technically are not direct proceeds of crime. In the case of
3 National Director of Public Prosecutions and Another v RO Cook 2004 (2) SACR 208 (SCA).
3 National Director of Public Prosecutions and Another v RO Cook 2004 (2) SACR 208 (SCA).
4 Ibid par 72.
5 Bobroff and Another v the National Director of Public Prosecutions [2021] ZASCA 56; [2021] 3 All SA 1
(SCA); 2021 (2) SACR 53 (SCA).
6 Ibid para 17.
14
money, this would typically be the case. The definition of the concept in s 1 of POCA therefore includes
'any property representing property so derived.”’7
[32] The Constitutional Court held in National Director of Public Prosecutions v Botha
NO and Another 8 that the amount paid by Trifecta in respect of the renovations of the
late Ms Botha’s family home represented the proceeds of crime in the hands of Ms
Botha, and ordered that an amount equivalent to the benefit be paid from her estate to
the State.
9
[33] Kruger,10 with reference to international experts on the topic of money
laundering, makes the following comments:
‘Money laundering can be described as “the manipulation of illegally acquired wealth in order to
obscure its true source or nature”. It entails disguising the origins of money obtained through
crime so that the funds appear to have been obtained legally. The funds are made to appear
legal through a single transaction or a series of transactions. Thus is the money acquired by
unlawful means made useful. As Bourne puts it:
“Criminals, and in particular organised crime syndicates engaged in a variety of unlawful activities such as
drug trafficking, fraud, embezzlement, theft and smuggling of vehicles, weapons and works of art, are
faced with a problem how to disguise, protect and legitimise the dirty money generated from their illegal
activities”’.11
[34] This being opposed motion procedure, the trite principles applicable to the
adjudication of factual disputes has been set out in Plascon -Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd. 12 In order to establish whether a real, genuine and bona fide
7 Ibid para 40.
8 National Director of Public Prosecutions v Botha NO and Another [2020] ZACC 6; 2020 (1) SACR 599
(CC).
9 Ibid paras 106, 111 and 131.
10 A Kruger Organised Crime and Proceeds of Crime Law in South Africa 3 ed (2024).
11 Ibid at 55.
12 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635C.
15
dispute of fact exists , the following dictum in Wightman t/a JW Construction v Headfour
(Pty) Ltd and Another (Wightman) must be adhered to by respondents:13
’A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. There will of course be instances where a bare denial
meets the requirement because there is no other way open to the disputing party and nothing
more can therefore be expected of him. But even that may not be sufficient if the fact averred
lies purely within the knowledge of the averring party and no basis is laid for disputing the
veracity or accuracy of the averment. When the facts averred are such that the disputing party
must necessarily possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will generally have difficulty in finding that the test is
satisfied. I say ‘generally’ because factual averments seldom stand apart from a broader matrix
of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant
may not necessarily recognise or understand the nuances of a bare or general denial as against
a real attempt to grapple with all relevant factual allegations made by the other party. But when
he signs the answering affidavit, he commits himself to its contents, inadequate as they may be,
and will only in exceptional circumstances be permitted to disavow them. There is thus a serious
duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage
with facts which his client disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that does not happen it should come as no surprise that the court takes a
robust view of the matter.’ (Emphasis added.)
robust view of the matter.’ (Emphasis added.)
Evaluation of the evidence and submissions by the parties
[35] The respondent submitted that the preservation order had lapsed insofar as the
NDPP brought the forfeiture order outside the period of 90 days as prescribed by s
40(a) of POCA. His counsel submitted that the NDPP applied for the forfeiture order
more than 90 days after the preservation order was granted. The respondent is wrong.
The period of 90 days starts to run from date of publication of the preservation order in
the Government Gazette. In this case it is 1 March 2024. After hearing the application, I
became aware of the recent judgment of the Supreme Court of Appeal in The National
13 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) para 13.
16
Director of Public Prosecutions v Gcaba. 14 I am bound by the majority judgment with
which I respectfully agree. The forfeiture application was issued within the 90- day
period. I am satisfied that the preservation order was still i n force in terms of s 40( a)
when the forfeiture application was issued. The forfeiture application was thus pending
before expiry of the 90 day period. No service of the forfeiture application took place as
the NDPP believed that the preservation order was not opposed. Fact of the matter is
that the respondent became aware thereof on 24 June 2024 when his attorney was
informed accordingly by the State Attorney. Thereafter he successfully applied for
rescission. Hefer AJ held in his judgment that the preservation order was still in force
when he issued the order . Consequently, the parties continued with the further litigation
on that basis. We often find that persons in similar situations as the respondent leave
their known addresses without any trace whatsoever. If this reality is not appreciated,
numerous preservation orders will lapse all the time. In any event, if a prese rvation
order lapses, the NDPP may always institute a fresh application once new information is
obtained and then proceed with steps to obtain forfeiture.
[36] The version presented by the NDPP pertaining to project PAPPA G in the form of
affidavits by the undercover police agent, Mr Makata, Brigadier Mafoyane and Mr
Mradla, a senior financial investigator at the Asset Forfeiture Unit, points in one direction
only. The respondent is regarded as a major player in the illegal mining and gold trade
industry. Investigations since the beginning of 2016 revealed that he and other targets
have been involved in illegal mining and gold trading activities. The period of their
investigations coincide with the respondent’s accumulation of wealth since the age of 23
which he failed to explain.
[37] It has been shown in many cases dealing with POCA that criminals make use of
[37] It has been shown in many cases dealing with POCA that criminals make use of
their friends, relatives and associated companies to hold property on their behalf to pull
the wool over the eyes of other parties such as the South African Revenue Service
(SARS), the Reserve Bank and/or the South African Police Service. In casu, the
properties are registered in the respondent’s name and by using a Gauteng address .
14 National Director of Public Prosecutions v Gcaba [2026] ZASCA 4 paras 27-30, 34-35 and 37-38.
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The properties were registered in the Gauteng province and not in the Free State,
although i t is apparent from the papers that the respondent is actually resident in
Welkom. I shall consider the various transactions mentioned above 15 without repeating
these in any detail to show that the respondent in many instances acted likewise.
[38] In casu, the respondent paid several huge amounts on different occasions which
were supposed to be paid into the trust account of Haasbroek-Willemse Inc. Only the
amount of R322 890 paid on 21 June 2016 was earmarked for a specific property
transaction. The reason for payment of the remainder, to wit R250 000 paid by way of
three separate transactions within three days from 24 to 27 October 2016, remains
unclear. The only reasonable inference to be made from these and other payments by
the respondent is that he intended to ‘wash’ dirty money. I come to this conclusion due
to his failure to take the court in his confidence to explain the source thereof.
[39] The property transaction in respect of the Lebona couple ’s property is a prime
example of money laundering. The respondent purchased their immovable property but
did not take transfer into his name. Instead, he improved the property and then caused
a deed of sale to be concluded between the Lebonas and Mr Sentso who became the
transferee and registered owner. The respondent did not present any proof of the origin
of the R150 000 cash utilised to pay the Lebonas and failed to provide proof as to the
amount of improvements made in respect of the property and the origin of the cash
used for improvements. The conveyancers paid the net s elling price – not to the
Lebonas as could be expected, bearing in mind the deed of sale – but to the respondent
as instructed by Mr Lebona. This shows how the Lebonas perhaps inadvertently
assisted in concealing the identity of the respondent as the owner and the person who
sold the property to Mr Sentso. A clear case of money laundering.
sold the property to Mr Sentso. A clear case of money laundering.
[40] The respondent utilised the amount of R471 510 received in respect of the
Lebona transaction to purchase Erf 59[...] Welkom. He made several cash payments to
ensure that the purchase price of R900 000 be paid whereafter he received registration
15 Refer to the information under the heading: Common cause facts paras 7-24 above.
18
of transfer. Again, there is no explanation pertaining to the source of the monies. Five
years later, on 17 August 2022 , this property was sold to a third party for R1 030 000.
The property was thereafter registered in the purchaser’s name. Obviously, the NDPP
could not apply for a preservation order in respect of this immovable property, or the
property which was transferred to Mr Sentso.
[41] I repeat that the respondent confirmed being the owner of the five vehicles
mentioned above and did not deny that these vehicles were purchased in cash on the
dates mentioned from the various businesses. The vehicles were purchased over a
period of 15 months; not five years as the respondent averred. The total purchase price
amounted to R1 961 600.
[42] I have also indicated that it is common cause that the respondent accumulated
wealth of R3 984 590 during the five -year period from 2016 to 2021. I agree with the
NDPP’s submission that this is a typical modus operandi of illegal gold smuggling
syndicate members, an aspect vehemently denied by the respondent. However, he
does not deny that he accumulated wealth of R3 984 590 during this period and that he
received the cash deposits in the amount s referred to above. T hese deposits were
unexplained. I am not prepared to accept the respondent’s version that it is a feature of
the black economy that people rely on cash. This is a gross generalization. W e are not
dealing with a street vendor or even tuckshop owner that deal s with relatively small
amounts of money . As mentioned, t he respondent’s payments referred to above were
made during the period that coincides with the period of investigation of the Pappa G
Project by Brigadier Mafoyane and his team.
[43] Automated teller machines (A TM’s), frequently utilised by the respondent, were
valuable washing machines to clean the dirty money loaded into it. The respondent’s
attempts to show that legitimate money was loaded into the ATM machines did not
attempts to show that legitimate money was loaded into the ATM machines did not
impress me, given the totality of the facts in this case.
19
[44] On the respondent’s version he generated vast sums of income without being
registered as taxpayer and/or having paid over income tax on his taxable income. He
has no accounting system and/or failed to provide his financial statements to the court.
He has no bookkeeping system to keep track with the finances of his various
businesses. I refer to what the Supreme Court of Appeal stated in Moyane.
16 This is
highly improbable. His version is far-fetched and is rejected as false. He failed to adhere
to the warning of the Supreme Court of Appeal in Wightman 17 in that he did not deal at
all in any meaningful way with the serious allegations made by the NDPP.
[45] The respondent ’s vague version does not assist his case at all. His counsel
submitted that the issue for determination by the court is ‘whether traditional black
business should be recognised by our Courts as a legitimate source of income or of
doing business instead of the conventional methods of dealing with money through
bank accounts’. His submission, also relying on the informal sector, that ‘black Africans’
(his words) are running informal businesses and do not keep financial records , does not
impress me. The respondent failed to present financial records, such as income and
expenditure statements and/or returns of income and/or Value-Added Tax (VAT returns)
filed with SARS. He refers to himself as a loan shark but is apparently not registered in
accordance with the National Credit Act 34 of 2005. Bearing in mind his vast income
streams, he should have registered as income taxpayer and even for VAT. This is
apparently not the case. The documents referred to herein would go a long way to show
that the respondent indeed earned sufficient legitimate income to make the various
payments. The failure to present documentary proof considering the totality of the
evidence is telling. A negative inference should be drawn against the respondent.
evidence is telling. A negative inference should be drawn against the respondent.
[46] I emphasise that the respondent failed to explain the source of his income stream
which allowed him to purchase the above properties . The evidence in its totality
provides much context to the NDPP’s version that the respondent is a major role player
in the illegal mining and gold dealing industry. The factual matrix in casu is a classic
16 Footnote 2.
17 Footnote 13.
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example of how money laundering takes place. In my view, the NDPP has proven that
the respondent, with the assistance of others, had manipulated his illegally acquired
wealth to obscure its true source or nature. The origin of the money obtained from
criminal activities was disguised so that the funds or the proceeds thereof appear to
have been obtained legally.
[47] The application shall succeed. The NDPP as the successful party is entitled to
her costs.
Order
[48] The following order is made:
1 The following properties are declared forfeited to the State in terms of section
50(1) of the Prevention of Organised Crime Act 121 of 1998 (POCA):
a. a Ford Ranger with registration number JK 1[ …] , engine number Y […] and
chassis number A[…] ;
b. a Mercedes Benz with registration number JN 6[ …] , engine number 1[ …] and
chassis number W[… ];
c. a Toyota Hilux with registration number JV 2[ …] , engine number 2[ …] and
chassis number A[…] ;
d. a Toyota Corolla with registration number FL 4[ …] , engine number 3[...] and
chassis number A[…] ;
e. a Toyota Conquest with registration number HHP [ …] , engine number 4 […] ,
engine number A[…] , (the properties).
2 Selinah Letuka (Letuka) shall take control of the properties listed in paragraph 1
supra and the Unit Commander of the Provincial Organised Crime Unit (DPCI)
Bloemfontein, Brigadier Ketlamoreng George Mofoyane, or a person authorised by him
in writing, is ordered to hand over the aforesaid properties to Letuka to be sold by her or
a person authorised by her in writing by public auction and to pay the proceeds of the
21
sale into the Criminal Asset Recovery Account (CARA) number 80303056 established
under section 63 of POCA, and held by the South African Reserved Bank.
3 Any person whose interest in any of the aforesaid properties is affected by the
forfeiture order, may within 20 days after requiring knowledge of such order, set the
matter down for variation or rescission by the court.
4 Letuka or a person authorised by her in writing, shall as soon as possible, but not
later than 90 days of this order coming into effect, file a report with the applicant on the
way they:
4.1 completed the administration of the aforesaid property mentioned above, and
4.2 complied with the terms of this order.
5 The respondent shall pay the applicant’s costs of the application.
________________________
JP DAFFUE
JUDGE OF THE HIGH COURT
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Appearances
For the Applicants: B Somaru
Instructed by: State Attorney, Bloemfontein.
For the Respondent: D Bojosi
Instructed by: S Nkuna Attorneys c/o Blair Attorneys, Bloemfontein.