SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
CASE NO: 1820/2023
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 PUBLIC PROSECUTIONS Applicant
and
SIBISI, CHRISTOPHER SOMANDLA First Respondent
MACRONYM 37 (PTY) LTD Second Respondent
APHIWOKUHLE HOLDINGS (PTY) LTD Third Respondent
In re:
1. ERF 1[...], also known as 9[...] T[...] Street, Royldene , Kimberley .
2. ERF 1[...], also known as The Lyve Café, corner Chapel and Du Toitspan
Street, Kim berley.
3. White Audi A1, with registration number K[...].
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 2
4. Kitchen Equipment, delivered and installed at The Lyve Café, corner of
Chapel and Du Toitspan Streets, Kimberley, as per annexure JS 41 (i.e.
Schedule of Equipment) .
Neutral citation: NDPP v Sibisi and Others (1820/2023)
Coram: Nxumalo J
Heard: 13 June 2025
Date of Order: 06 March 20 26
ORDER
1. An order is granted in terms of the provisions of Section 50 of the
PREVENTION OF ORGANISED CRIME ACT 121 of 1998 (“POCA”),
declaring forfeit to the State certain property (“the property”), which is
presently subject to a preservation of property order granted by this
Honourable Court under the abovementioned case number 29 September
2023 and subsequently confirmed on 08 December 2023; to wit:
1.1. Erf 1[...], also known as 9[...] T[...] Street, Royldene, Kimberley .
1.2. Erf 1[...], also known as The Lyve Café, corner Chapel and Du
Toitspan Street, Kim berley.
1.3. One White Audi A1, with registration number K[...]; and
1.4. Certain Kitchen Equipment, delivered and installed at The Lyve
Café, corner of C hapel and Du Toitspan Streets, Kimberley, as
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 3
per annexure JS 41. 1
2. A further order be and is hereby granted i n terms of Section 52(2)(a) of
POCA, excluding the interest of Standard Bank, in respect of the
abovementioned property referred to in paragraph 1.2 , from the operation
of the forfeiture o rder.
3. The curator bonis , Mr Yousuf Hassen , appointed by this Court, in terms
of the order granted on 29 September 2023, is directed to continue to act
as such with authority to perform all the functions specified in the POCA,
subject to the provisions of the ADMINISTRATION OF ESTATES ACT 66
of 1965 and the supervision of the Master of the High Court .
4. The curator bonis shall have all such powers, duties and authority as
provided for in POCA and this Order; including such powers, duties and
authority reasonably incidental thereto and shall, in addition, be subject to
the applicable provision of the ADMINISTRATION OF ESTATES ACT 66
of 1965. The fees and expenditure of such curator bonis reasonably
incurred in the execution of his duties shall be paid from the proceeds of
the forfeit property .
5. In terms of Section 56(2) of POCA, the property shall vest with the
curator bonis on behalf of the State, on the date on which this forfeiture
Order takes effect .
6. The curator bonis is authorised as of the date on which this forfeiture
Order takes effect to:
6.1. Assume control of the property and take it into custody .
1 i.e. “the Schedule of Equipment”
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 4
6.2. Dispose of the property with public sal e.
6.3. Deal with the excluded interest in terms of Section 52(2) of POCA,
granted in favour of Standard Bank .
6.4. Deduct his fees and expenditure that were approved by the
Master of the High Court, subject to the exclusion of interest in the
property under Section 52(2) of the POCA, granted in favour of
Standard Bank .
6.5. Deposit the balance of the proceeds into the Criminal Assets
Recovery Account number 8[...], established under Section 63 of
the POCA, held at the South African Reserve Bank, Vermeulen
Street, Pretoria .
6.6. Perform any ancillary acts which, in the opinion of curator bonis ,
but subject to any directions of the Criminal Assets Recovery
Committee, established under Section 65 of the POCA, are
necessary .
7. The curator bonis shall as soon as possible, but not later than within a
period of 90 days of this Order coming into effect, file A Report with the
applicant and the Master of the High Court, indicating the manner in
which he:
7.1. Completed the administration of the property mentioned above;
and
7.2. Complied with the terms of this Order.
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 5
8. Any person affected by this Order and who was entitled to receive notice
of the application under Section 48(2) of the POCA, but who did not
receive such notice, may within 45 days, after the publication of the
notice of this Order in the Gazette, apply for an order under Section 54 of
the POCA, excluding his or her interest in the property; or varying the
operation of this Order, in respect of the property .
9. All the paragraphs of this Order shall operate with immediate effect,
except paragraphs 4,5 and 6; which will only take effect on the day that a
possible appeal is disposed of in terms of Section 55 of the Act; or after
the day that an application for execution of interest in the forfeited
property in terms of Section 54 of the POCA, is disposed of; or after
expiry of the period in which an appeal may be lodged or application be
made in terms of Section 54 of the POCA, whose interest in the property
concerned is affected by this Order, may within 20 days after he or she
has acquired knowledge of this Order, set the matter down; after giving
notice thereof to the applicant, for variation or rescission by this Court;
and
10. The costs of this application are awarded to the applicant .
JUDGMENT
Nxumalo J
INTRODUCTION :
[1] This motion implicates Sections 50 of the PREVENTION OF
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 6
ORGANISED CRIMES ACT 121 of 1998 (“POCA”)2 seeking to declare
forfeit to the State, certain property, which is presently subject to a
preservation of property order granted by this Court under the
abovementioned case number on 29 September 2023 and confirmed on
08 December 2023; to wit: (a) Erf 1[...], also known as 9[...] T[...] Street,
Royldene , Kimberley; (b) Erf 1[...], also known as The Lyve Café, corner
Chapel and Du Toitspan Street, Kim berley; (c) one White Audi A1, with
registration number K[...]; and (d) certain Kitchen Equipment, delivered
and installed at The Lyve Café, corner of C hapel and Du Toitspan
Streets, Kimberley, as per annexure JS 41. 3 The applicant also seeks
costs of this motion to be awarded to it .
[2] The applicant is the National Director of Public Prosecution within the
contemplation of Section 179(1)(a) of the Constitution . The offices of the
applicant are situate at 123 Westlake Avenue, 2 nd Floor, VGM Building,
Weavind Park, Silverton, Pretoria .
[3] The first respondent is one Christopher Somandla Sibisi , an adult male
residing at 489 Cedar Creek Boulevard, Fourways, Johannesburg . The
first respondent is the sole director of the second and second
respondents, respectively . He is cited herein as a person who m ight
have an interest in the impugned property .
[4] The second respondent is one Macronym 37 (Pty) Ltd , a property
limited company, duly registered and incorporated in terms of the
Statutes of the Republic of South Africa, with its registered address and
principal place of business situate at 67 De Beers Road, Kimberley . The
second respondent is cited herein as a party that might have an interest
in the impugned property .
2 Or “the Act”
3 i.e. “the impugned property” as itemised in “the Schedule of Equipment”
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 7
[5] The third respondent is one Aphiwokuhle Holdings (Pty) Ltd , a property
limited company, duly registered and incorporated in terms of the
Statutes of the Republic of South Africa, with registered address and
principal place of business situate at 6[...] D[...] T[...] Road, Kimberly .
The third respondent is also cited herein as a party that might have an
interest in the impugned property .
[6] The application which is lodged vide Section 48 of POCA, in the main is
predicated against the contention that the impugned property is the
proceeds of unlawful activities of fraud and money laundering within the
contemplation of Schedule 1 of the POCA . Section 48 (1) of POCA,
expressly permits the applicant, i f a preservation of property order is in
force, to 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 .
[7] For its own part, Section 50(1) of POCA impels this Court, subject to
Section 52, to make an order applied for under Section 48(1) of POCA, if
this Court finds on a balance of probabilities that the property concerned
is an instrumentality of an offence referred to in Schedule 1 of POCA ; or
is the proceeds of unlawful activities . Section 50(2) of the POCA, on the
other hand empowers this Court, when it makes a forfeiture order or at
any time thereafter , to make any ancillary orders that it considers
appropriate.
[8] The respondents are opposed to the order sought being granted . They
have delivered an answering affidavit to that extent . The deponent
thereto is the first respondent . It is in the main contended for the
respondents that on a balance of probabilities, the impugned property is
not the proceeds of unlawful activities . The nub of the respondents’
disputation resides in paragraphs 4.3 -4.7 of the said answering affidavit;
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 8
to wit:
“4.3 It is common cause that in June 2020, the Department awarded a
contract to the second respondent to procure Covid -19 PPE i.e .
coveralls, surgical masks and N95/FF2 masks, in the amount of
R26 960 025.00.
4.4 … the second respondent sold and delivered the goods to the Northern
Cape Department of Health in 2020, at the Department’s special
instance and request and that the respondents did so lawfully.
4.5 … that the Department deviated from the normal supply chain
management process when it commenced procuring PPE, for the Covid -
19 pandemic in March 2020, it cannot be said that the respondents
should be held liable for such deviations.
4.6 The respondents had absolutely no power to influence the granting of
the tender in question . It is not for the respondent s to champion the
internal operational requirements of the Department, nor to be the
custodian s of same.
4.7 The applicant want to create the impression that the respondents
somehow played a role in the awarding of the contract, but this is
completely unsubstantiated . The second respondent was not a party to
the decision -making process . The decision to award the contract must
be placed solely at the feet of the officials of the Department .”
[9] The parties are ad idem as to what falls for determination in these
proceedings; to wit: whether on a balance of probabilities, the impugned
property is the proceeds of unlawful activity and/or the instrumentality of
an offence.
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 9
CONDONATION :
[10] Having delivered their answering affidavit 33 days out of time, the
respondents sought condonation for same . The respondents, in this
regard, in the main contented that granting them condonation would be in
the interest justice and that their failure to deliver the said affidavit was
not due to their negligence and/or willful default . In this regard it is
alluded that the respondents’ legal representative stated that at all
material times hereto, she was under the misapprehension that there was
still sufficient to file, as advised by the respondents’ previous counsel .
That this was an hones t mistake which this C ourt should not draw a
negative inference from . To the extent that the relief sought involves
public funds, it followed that its full ventilation was of public importance .
Regard being had to the drastic nature of the relief sought and the
absence of prejudice on the part of the applicant , it was in the interests of
justice for condonation to be granted . The foregoing is in sum what was
contended for the respondents .
[11] The applicant for its own part, in the main contend ed that the failure of
the respondents to deliver their answering affidavit timely was solely due
to their negligence and/or willful default . It was also contended for the
applicant that condoning the late delivery of the said affidavit was
pointless since opposition of the application had no prospects of success .
That to the extent that the respondents sought to place the blame for the
delay on their previous counsel . The question was, having instructed
attorneys, why did it remain the ir responsibility to seek counsel by
themselves . That the respondents did not show good cause for
condonation to be granted because the explanation given was not
reasonable . The prejudice suffered by the applicant is the delay in the
reasonable . The prejudice suffered by the applicant is the delay in the
finalisation of the matter . That in sum was the contention of the applicant
in this regard .
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 10
[12] It is trite that the factors which are generically taken into consideration by
our Courts in determining an application for condonation inter alia include
the degree of lateness; the explanation therefore; the prospects of
success; and the importance of the case . It also is so that, our Courts
will also consider the absence of prejudice to the other party . Further, it
is so that whilst the standard for considering an application for
condonation is the interests of justice , same depends upon the facts and
circumstances of each case. 4
[13] In Rabie v De Wit , it was held as follows: 5
“Thus, in Trans-African Insurance Co Ltd,6 the requirement of prejudice was
reaffirmed by Schreiner JA, who quoted with approval what was held by a Full
Bench in Foster v Carlis and Houthakker 7 in a similar context:
‘It seems to me impossible to construe the rule otherwise than as conferring
upon the Court the power to condone any such irregularity or impropriety,
because the contrary view would convert the latter part of the rule into an
instruction to the Court to set aside the irregular or improper proceeding … It
seems to me, therefore, that the Court is entitled to overlook in proper cases
any irregularity in procedure which does not work any substantial prejudice
to the other party .’”8
[14] It can be deduced from the foregoing that this Court has a discretion to
overlook any procedural irregularity which does not cause prejudice to
the other party . The applicant was able to deliver its replying affidavit on
31 May 2024 . Both parties delivered the prerequisite practice notes and
4 Van Wyk V Unitas Hospital (Open Democratic Advice Centre as Amicus Curae 2008(2) SA 472 at 477A-B
5 2013(5) SA 219 (WCC) at para 17
6 1956 (2) SA 273 (A) at 276G-H
7 1924 TPD247 at 251-252
8 Emphasis added
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 11
heads of argument to conduce the expeditious adjudication of this matter .
None of the parties have been prejudiced, nor was this Court
inconvenienced . In the premise, r egard being had to the drastic relief
sought; the extent and cause of delay; the effect of the delay on the
administration of justice and the applicant; the reasonableness of the of
the explanation for the delay; the importance of the issue at stake and the
prospects of success - this Court was therefore constrained to condone
the late delivery of the answering affidavit .
THE PARTIES’ MAIN CONTENTION, IN SUM :
Applicant’s :
[15] The applicant in the main contended as follows: It is trite that the
committed unlawful activity need not be committed by the holder of the
property. There must be a consequential link between the unlawful
activity and the impugned property . The second respondent (i.e .
Macronym) at all material times hereto was not a transversal contractor
as defined in the National Treasury Notes. 9 Notwithstanding that the
Northern Cape Provincial Department of Health, 10 which was bound by
the Treasury Notes, with the intention to defraud and prejudice the
Department, the respondents’ misrepresentation led to the appointment
of the second respondent . At all material times hereto, the first
respondent had a corrupt relationship with the Department’s Chief
Financial Officer , one Gaborone . The second respondent procured the
impugned property with the proceeds of a contract it received as a result
of its fraudulent misrepresentation during the impugned procurement
process. On the conspectus of all the available evidence, the applicant
has evinced, on a balance of probability that the impugned property was
procured through the proceeds of unlawful activities .
9 Hereinafter referred to as “the Treasury Notes”
10 Hereinafter referred to as “the Department”
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 12
Respondents’ :
[16] The respondents’, for their own part, in sum contended as follows: The
impugned property is not an instrumentality of an offence and/or
purchased with proceeds of an offence or unlawful activities within the
contemplation of schedule 1 of POCA . Consequently, same should not
be forfeited to the State; and alternatively, in the event that this Court
finds that the impugned property is liable to be forfeited to the State, this
Court has to assess whether the proposed forfeiture is proportional. 11
[17] It is common cause that in June 2020, the Department awarded a
contract to the second respondent to procure Covid -19 Personal
Protective Equipment (“ PPE”) i.e . coveralls, surgical masks and
N95/FFP2 masks 12 in the amount of R26 960 025.00. The second
respondent sold and delivered the impugned goods to the Department in
2020, at the Department’s special instance and request and that the
respondents did so lawfully . The Department deviated from the normal
supply chain management process when it commenced procuring PPE
for the Covid -19 Pandemic in March 2020 . The respondents should not
be held liable for such .
[18] The respondents had absolutely no power to influence the granting of the
tender in question . It is not for the respondents to champion the internal
operational requirements of the Department, nor to be the custodian of
same. The applicant wants to create the impression that the respondents
somehow played a role in the awarding of the contract, which is
completely unsubstantiated . The second respondent was not a party to
the decision -making process regarding the said contract . The award of
11 Hereinafter referred to as “the proportionality assessment”
12 Hereinafter referred to as “the impugned goods”
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 13
same was the sole decision of the Department.
ISSUES FOR DETERMINATION :
[19] The crux of this application was whether the impugned property fell to be
forfeited to the State because same constitutes proceeds of unlawful
activities and/or is an instrumentality of an offence . Tangentially, it also
fell to be determined, in the event that this Court found that the impugned
property is liable for forfeiture, whether the relief sought was proportional;
regard being had to the facts and circumstances of this case .
[20] The phrase “ proceeds of unlawful activities ” connotes “ 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 the 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 ”. The phrase “ instrumentality
of an offence ” in turn denotes “ 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 ”.
[21] The phrase “ unlawful activity ” means conduct which constitutes a crime
or which contravenes any law whether such conduct occurred before or
after the commencement of this Act and whether such conduct occurred
in the Republic or elsewhere. 13
BRIEF OVERVIEW :
[22] On 15 March 2020, the President of the Republic, declared a National
13 Section 1 of the Act.
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 14
State of Disaster, following the outbreak of the Covid -19 Pandemic . In
turn, National Treasury (“ NT”) issued Instruction Notes to all National and
Provincial departments, to assist in dealing with the procurement of
PPEs, during the said pandemic .
[23] On 17 March 2020, one Ms Nomhle Orienda Gumbo (“ Gumbo”), a
Manager in the Department’s Health and Non -Communicable Deceases
Unit, Kimberley, compiled a memorandum for the procurement of
cleaning and disinfectant material, as a matter of urgency . Gumbo
estimated the quantities on her own initiative and the amounts for the
items were supplied by one Mr Montgomery Faas, a Manager Supply
Chain Management in the Department (“Faas”).
[24] On 23 March 2020, Gumbo signed the memorandum and it was
recommended by one Mr Riaan Strydom (“ Strydom”), the Acting Chief
Director and one M r Daniel Gaborone, the Chief Financial Officer of the
Department (“ Gaborone ”) and approved by one Mr Deon Theys (“ Theys”),
the Acting Head of Department (“ the HOD ”). Significantly, the Gumbo
memorandum did not include coveralls or body bags.
[25] On 09 June 2020 the second respondent submitted documentation, which
one Ms Cleopatra Norman (“ Norman”) signed on its behalf . The second
respondent submitted a quotation to the Department, reflecting the supply
of 50 000 coveralls ; 250 000 surgical masks and 250 000 FFP2 masks -
totaling the sum of R26 960 025.00. On 17 June 2020 Gaborone signed
a letter addressed to the second respondent titled “ Acceptance of Offer:
Supply of Personal Protective Equipment ” wherein he stated that the
Department accepts his offer to supply . A Delivery Note dated 22 June
2020 for 250 000 disposable face masks was subsequently signed by
one Ms Elizabeth Dibueng Manyetsa (“ Manyetsa ”) on behalf of the
Department, whilst one Mr Macdonald Kgololo Mampe (“ Mampe”) signed
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 15
on behalf of the second respondent.
[26] A Delivery Note dated 07 July 2020 for 250 000 N95/FFP2 masks was
signed by one Mr Goitsemodimo Piet Moseki (“ Moseki”) on behalf of the
Department and Mampe, on behalf of the second respondent . A Delivery
Note, dated 20 July 2020 for 69 984 coveralls was signed by Moseki, on
behalf of the Department and Mampe, on behalf of the second
respondent . On 27 July 2020 a Purchase Order evenly dated with a
delivery date of 26 August 2020 was signed by one Dr Theys, with a
description reference: “ Clothing Outfit Pr otective”. The second
respondent issued an invoice on 29 July 2020 . On 06 August 2020 an
amount of R26 960 025.00 was deposited into the second respondent’s
Standard Bank account .
Second Respondent’s Submission of its First Quotation and WhatsApp
Communications between Gaborone and the First Respondent :
[27] In this regard, the applicant alleged as follows: On 14 April 2020 one
Mr Siyabulela Booi, an Assistant Manager in Supply Chain Management
(“Booi”), transmitted an RFQ to the second respondent and other
suppliers , for the supply of certain PPE items . The second respondent
and other suppliers responded to the said RFQ. The second
respondent’s quote was R316 992 607.00. On 23 April 2020 a regret
letter was sent to the second respondent and other suppliers, advising
that their quotations were unsuccessful due to overpricing. Thereafter,
Booi in writing invited all prospective suppliers to a consultative process
regarding pricing , attaching Treasury Instruction Note number 09 of
2019/2020 . The said Instruction Note peremptorily prescribed the list of
items, suppliers and prices to be used by all Government Departments .
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 16
[28] The foregoing notwithstanding, paragraph 3.7.6 of the Instruction Note,
granted the following dispensation:
“3.7.6. Institutions may approach any other supplier to obtain quotes and may
procure from such suppliers on condition that:
i. The items are to the specifications as determined by the National
Department of Health;
ii. The prices are equal or lower than the prices in Annexure A;
iii. The supplier is registered in the Central Supplier Database. ”
[29] It is significant to point out that paragraph 2.5 of the Instruction Note, for
its own part, expressly and unambiguously stipulated that the nature of
the goods that are required should not be goods ordinarily procured and
the high demand of these items by both the private and public sector may
lead to uncompetitive and inflated prices .
[30] On various dates, the first respondent sent Gaborone the following texts:
“Somandla” (01 June 2020); “ Sharp Budakes, I need to give feedback
and I don’t know what to say” (10 June 2020) . Gaborone in turn
responded as follows: “I’ll call you soon ” (10 June 2020) . On 11 and 12
June, respectively the second respondent further texted Gaborone as
follows: “Sure Budakes, are we still meeting as I had to postpone to
tomorrow” and asked “Are you still sending?” On 15 June 2020,
Gaborone texted the first respondent as follows: “ I’ll call you back.”
[31] Shortly after the said written communication, Gaborone (the CFO) and
the first respondent communicated via WhatsApp on various occasions
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 17
from 01 June 2020 . This communication seems to have been initiated by
the latter . On 09 June 202 0, Booi once again transmitted the said RFQ
to the second respondent . The WhatsApp communication between
Gaborone and the first respondent thereafter resumed during the period
between 10 to 12 June 2020 . On 12 June 2020, Faas advised Gaborone
that the second respondent was not compliant with the specifications of
the goods required .
[32] The respondents, for their own part averred as follows, with regard to the
foregoing: With respect to the extent of Booi’s involvement in the
procurement process, the applicant deliberately ignored the delegated
authority of Booi, in the chain of the decision making in the Department .
It is common cause that Booi is not a Deputy Director or Chief Director;
nor a Head of Department . Booi therefore at all material times hereto
had no power or influence to award contracts to anyone . The so -called
WhatsApp communication referred to in paragraph 42.5 of the founding
affidavit, is merely one message where the first respondent wrote -
“Somandla.” It is inconceivable that the applicant is now attempting to
attribute guilt to that one message .
[33] In reply, the applicant denied the foregoing and averred as follows: It is
unclear as to why the respondent is making the foregoing averments as
the applicant never inferred or indicated that Booi influenced the
awarding of the impugned contract . That it is worth noting though that
Booi is an Assistant Manager in SCM, which means his input in awarding
contracts is valuable or should be valuable . The second respondent
does not make out a case as to why it should not be inferred that the
communication with the CFO of the Department (Gaborone) , during
procurement process is untoward . The second respondent ignore d the
fact that this is not the only communication that was noted between itself
fact that this is not the only communication that was noted between itself
and the C FO. Further communication was observed on 10 -12 June 2020,
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 18
as well as 15 June 2020 . The second respondent as a businessman
should know this kind of communication could cast a bad light on the
procurement process as it would be viewed as the C FO being favourable
to it.
[34] It is clear from the foregoing that the respondents’ attempt to confess and
avoid the allegations contained in the applicant’s affidavit only amounts to
indignant argument and expostulation, which should be eschewed in
answering affidavits. 14 Affidavit s are not pleading s. The respondents can
thus not content themselves with bare unsubstantiated denials, 15 unless
of course there is no other way open to them and nothing can be
expected of them. 16
First Respondent’s submission of Quotation s on 13 and 15 June 2020 :
[35] As alluded above o n 09 June 2020, Booi once again transmitted a n RFQ
to the second respondent . Thereafter, also as alluded above, Gaborone
and the first respondent resumed their communication via WhatsApp
during the period of 10 to 12 June 2020 . On 12 June 2020, Faas advised
Gaborone that the second respondent was still not compliant with the
specifications of the goods required . On Saturday 13 June 2020 the first
respondent submitted another quotation directly to Gaborone , queerly
backdated 10 June 2020 . Thereafter, o n 15 June, the WhatsApp
communication between Gaborone and the first respondent , resumed .
Following the said communication , a revised quotation was once more
submitted by the first respondent via electronic mail to Booi . Gaborone
was contemporaneously copied in same.
Inflation of quantities and inclusion of items not requested in the first
14 Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 79A-F
15 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 and 1165
16 Wightman v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375G
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 19
respondent’s quotation :
[36] Significantly, the applicant avers that the Draft Report by Morar (“ the
Draft Report ”) inter alia, found as follows; that: The quantities in the said
quotation were inflated and included items that were not requested . The
unrequested items gave rise to the inflated quotation value . The second
respondent inflated its prices, which result ed in an overpayment of an
amount of R862 500.00.
Second respondent’s tax non -compliance and being unregistered as a PPE or
medical equipment supplier :
[37] The applicant alleged that a t all material times hereto, the second
respondent was not , not only unregistered to supply PPE or medical
supplies to the applicant , but also not tax compliant according to the
applicant’s CSD. 17 This is not disputed , anywhere .
The Department’s overpayment to the second respondent :
[38] On 17 June 2020 Gaborone informed the second respondent that its
quotation was accepted and that a formal letter to that effect will be
transmitted by 18 June 2020 . In terms of the Draft Report, the second
respondent also inflated its prices when it invoiced the Department . This
inflation resulted in the Department overpaying the second respondent in
the amount of R862 500.00.
Large cash withdrawals by the second respondent and cash deposits by
Gaborone :
[39] This Court found that the second respondent did not frankly disclose the
17 Paragraphs 42.15 -42.16, p450, Founding Affidavit
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 20
detail of the foregoing conversation with Gaborone, at all material times
hereto. This Court found that whilst the said WhatsApp communication
continued between Gaborone and the first respondent after the impugned
transaction was completed, particularly on the dates, the second
respondent was making large cash withdrawals from its bank account .
Troublingly, the Morar Report observed through the perusal of FIC Report
of Theys and Gaborone, that the latter made certain cash deposits into
his bank account in the approximate amount of R378 000.00.
Shortage of 69 984 coveralls, despite the respondents’ alleged delivery of 69 984
of same on 20 July 2020 and stocktaking recordal of nil on 09 September 2020 :
[40] The applicant also allege d, that at all material times hereto, one Ms
Heliza Mentoor (“ Mentoor”) was responsible for the weekly reporting of
stock levels to Treasury, whilst Manyetsa was in charge of receival and
distribution of PPEs . That o n 24 July 2020 the latter’s records evinced a
shortage of 69 984 coveralls, despite the respondents’ alleged delivery of
69 984 of same on 20 July 2020 . Of significance, in this regard is the fact
that the former’s stocktak ing of coveralls recorded nil on 09 September
2020.
Payments by the Second Respondent to one Masedi Star (Pty) , which is not
Registered or Licensed to Manufacture or Sell PPEs :
[41] It is common cause that the second respondent made certain payments
to Masedi Star for PPEs, notwithstanding the fact that according to the
South African Health Products Regulatory Authority (“ SAHPRA”) was at
all material times hereto, not registered or licensed to manufacture or sell
PPEs. The applicant also alleged that Masedi Star, provided
contradict ory information to the Asset Forfeiture Unit (“AFU”) and the
Special Investigating Unit (“ SIU”), with regard to payments received from
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 21
the second respondent .
[42] The respondents, for their own part in this regard , contended as follows,
with regard to the foregoing : It is important to note that the first Request
for Quotation (RFQ) sent by Booi to the first respondent , was for twenty
different items which ultimately amounted to R316 992 607.00. Whereas
the second RFQ, was only for only three different items amounting to
R26 960 025.00. Therefore, the impression that the applicant is trying to
create that the first respondent’s first quotation to the first RFQ, was
grossly inflated is misleading . The request the first respondent received
from Booi was a separate an d different quotation for the first wave of the
Covid pandemic. Accordingly, Booi initially gave his standard pricing, but
as things progressed , the second respondent was never appointed for
that first quotation and never provided Booi with an y invoice.
[43] The second RFQ came from Gaborone for different quantities and stock
and the first respondent ensured that his pricing was as per the circular of
National Treasury, which dictated the pricing . The allegations that the
prices were grossly inflated are categorically denied and without merit .
[44] Significantly, the first respondent contended that to the extent that he is a
businessman, it is “ acceptable business practice to communicate with a
Department he intends providing services ”. That the WhatsApp
communications between himself and Gaborone are not strange or
incriminating at all . That he kept communicating with Gaborone purely
for business purposes devoid of any underhandedness or any illegality .
That the allegations are baseless and without merit . Booi sent the first
respondent the first RFQ and the first quotation submitted was rejected .
So, it was only natural for the first respondent to go to Gaborone to
enquire what he did wrong in the first quotation to enable him to correct
enquire what he did wrong in the first quotation to enable him to correct
his subsequent quote.
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 22
[45] The second respondent confirmed making payment to one Masedi Star,
who allegedly procured K95 masks, 3 -ply surgical masks and coveralls
and s elling same to the second respondent . He referred this Court to
annexure A, allegedly being the quotation Masedi Star, provided to the
second respondent . That the second respondent executed and
discharged its obligations, including helping the Department by providing
transportation services for the goods procured through other companies .
That all the items were delivered to the Department in terms of the
impugned tender . Respondents attached copies of delivery notes which
allegedly prove delivery. 18
[46] In reply, the applicant denied the foregoing and contemporaneously
contended as follows: It is unclear as to why the respondents are making
the said averments as the applicant never inferred or indicated that Booi
influenced the awarding of the impugned tender , in anyway . That the
foregoing notwithstanding, to the extent that Booi is an Assistant
Manager in the Supply Chain Management section of the Department,
means his input in awarding tenders is valuable a s it should. That the
respondent s did not make out a case as to why it should not be inferred
that the impugned communication with Gaborone during the procurement
process was untoward .
[47] That the respondent s ignored the fact that the impugned text is not the
only communication that was transmitted between the respondents and
Gaborone . That to this extent, further communication was transmitted on
10 to 12 June 2020, as well as 15 June 2020 . That the first respondent,
as reasonable businessman, should have known that the impugned
communication could place a bad light on the process since same would
be viewed as Gaborone being favourable to the respondents .
18 Annexure B
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 23
[48] The applicant placed no contention on the first quotation . The quotation
that the applicant found to have been inflated is the one on the basis of
which the second respondent was awarded the impugned tender . The
respondents’ assertion that the second respondent was indeed requested
to quote three items which description and quantity was specified is not
true. That it is so since the quantity as directed in the RFQ, is not the
same quoted by the second respondent as there is one additional item
which did not form part of the RFQ . The said RFQ issued by Booi did not
include coveralls . This notwithstanding, the second respondent
unilaterally included same at an inflated price and quantity contra the
RFQ.
[49] Whilst it is the respondents’ case that the second RFQ was issued by
Gaborone, they do not furnish any proof of same or any unit price
quotation to that effect . If regard is being had to the impugned WhatsApp
texts, especially; to wit: “Sharp Budakes, I need to give feedback and I
don’t know what to say” it can be inferred that the second respondent
requested Gaborone to tell him what to say .
[50] The impugned communication was between the second respondent and
Gaborone and not Booi . The latter who had been sending the RFQ s to
the second respondent . That it is unacceptable business practice for
communication to ensue between Gaborone and any service provider
during the process adjudicating any tender as same can be viewed as the
latter to be soliciting advice as to how to go about the process . It follows
that the said communication is underhanded as same relates to the
procurement at hand, at all material times hereto . Further, where there
was communication, it follows that there would have been an amendment
to the impugned quotation . That it so since same seems to solicit advice
and “ stuff” to be sent to the respondents by Gaborone . The first
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 24
respondent therefore had a corrupt relationship with Gaborone as he was
communicating with him directly during the procurement process, whilst
Gaborone was the one who gave the go ahead despite various non -
compliances by the second respondent.
[51] That it is significant to point out that t he second respondent’s first quote
was declined due to pricing and the second quote non -compliant with the
goods specifications . The second respondent has inflated and caused
financial prejudice to the Department because service was not rendered
effectively . It is evinced that there was a shortage of coveralls, at all
material times hereto, despite the second respondent’s alleged delivery
of same . The second respondent misrepresented the type of masks
quoted versus delivery .
[52] Significantly, t he second respondent has not provided a reasonable
explanation how he could afford to purchase the impugned property if it
was not for the funds from the Department . Buying the said property had
the effect of concealing and/or disguising the nature and source of the
impugned funds .
DETERMINATION :
The respondents’ bare and unsubstantiated denials :
[53] Without clearly or concisely stating all the material facts upon which they
rely and without giving any fair or clear answer to every point of
substance raised by the applicant in its founding affidavit, or advancing
evidence of the relevant facts, it was generically averred as follows, in the
remainder of the answering affidavit: (a) The funds received from the
Department were not derived in the course of lawful business activities;
(b) the first respondent denied that the funds he received were derived
through fraudulent or corrupt conduct; (c) there is no evidence that he
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 25
committed any offence; (c) any irregularities in the procurement process
did not render the impugned property proceeds of unlawful activities; (d)
he obtained the impugned properties legally and for value and at the time
he acquired same he had no reasonable grounds to suspect that the
properties constituted proceeds of crime or had been acquired with the
proceeds of crime; (e) he developed the property situate at 9[...] T[...]
Street, Minerva Gardens, with funds from his other business interests and
not with the funds he acquired from the impugned tender; (f) granting of a
forfeiture order against him would amount to an arbitrary deprivation of
property in contravention of Section 25(1) of the Constitution . This Cou rt
found the foregoing to be wholly bare and unsubstantiated .
Averments Accepted as Correct by this Court :
[54] The following allegations relied upon by the applicant are for the
purposes of this application accepted by this Court as correct . It is so
since the respondents in their answer to the applicant’s founding affidavit
did not admit or deny; or confess and avoid same. 19
[55] The documents and annexure filed in support of the preservation
application preceding the instant which were incorporated into the
founding affidavit as if expressly traversed therein . The affidavit of one
Mr Jacobus Smith (“ Smith”) and the relevant annexure filed in support of
the preservation application . Smith is a Financial and Asset Investigator
under the auspices of the of the Asset Forfeiture Unit (“ AFU”) based in
Kimberley .
[56] This Court, for the purposes of this application also accepted the
following allegations as correct since they were also not admitted or
denied; or confessed and avoided by the respondents: With the advent of
19 Soffiantini v Mould 1956 (4) SA 150 (E0 at 154F
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 26
the Pandemic, Instruction Notes were sent out by Nation Treasury to all
departments as guidelines on how to go about procuring goods and
services during the Pandemic . In the Notes, transversal contractors were
set up to provide the departments with the said goods and services .
Treasury was to be informed of any noncompliance with the said notes by
any department .
[57] The second respondent did not qualify to receive the impugned tender as
it was part of the transversal contractors . The foregoing notwithstanding,
the Department appointed second respondent contra the said notes,
without informing Treasury . At all material times hereto, the second
respondent was not registered in the Central Data Base as a service
provider of PPEs or an entity that provide s supplies in the medical sector,
nor was it tax compliant.
[58] The second respondent misrepresented itself to the Department by
quoting and receiving payment for N95 masks, whilst knowing that in
actual fact, it delivered surgical masks . There was also a
misrepresentation on the part of the second respondent, by delivery of a
different quantity of masks than the ones reflected in its quote and the
RFQ. The Department’s stock reconciliation and distribution list noted
numbers that do not reconcile with the alleged delivery of same . Huge
shortage was noted despite the alleged delivery by the second
respondent . Regard being had to the foregoing, it was reasonab le to
infer that the second respondent did not deliver effectively, if at all .
[59] Significantly, the forensic investigation revealed that after the second
respondent communicated with Gaborone, it revised its quotation . A
reasonable inference can therefore be drawn that the said communication
related to the said quotation and/or procurement process . When the
second respondent was invited to give information on how and where it
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 27
procured the PPEs, it gave conflicting information to the different law
enforcement agencies . For example, the invoice given the SIU was an
amount of R13 248 000.00, whilst it furnished the AFU, an invoice in the
amount of R2 008 500.00. The AFU Investigator was unable to trace any
transaction pertaining to the former amount, in any of the second
respondent’s bank accounts .
[60] The Department’s officials acted in concert with the second respondent,
in causing prejudice to the Department, for inter alia; the following
reasons: (a) the prices quoted were inflated; (b) the first delivery by the
impugned goods was made 3 months later, despite the fact that the
deviation request was on an urgent basis;(c) the Department transmitted
a Purchase Order to the second respondent dated 27 July 2020, with a
delivery date of 26 August 2020, after it had already delivered the
impugned goods;(d) the second respondent was paid before the
purchase order date; (e) the said purchase order simply stated “ Clothing
Outfit Protective ” without any specificity, which is misleading, regard
being had to the fact that at the time the purchase order was transmitted,
the Department would have been aware of what had been delivered by
the second respondent; (f) the preliminary finding that some of the
impugned communication between the first respondent and Gaborone
took place during the period the former withdrawal of large sums of
money from his bank account lends credence to the irresistible inference
that a corrupt relationship existed between the former and the latter; and
(g) the transactions conducted by the respondents in utilizing the money
received from the Department fall within the ambit money laundering as
same was transferred to the ban k account of the third respondent , where
the impugned property transactions took place, thus having the effect of
disguising or concealing the nature or source of the impu gned funds.
disguising or concealing the nature or source of the impu gned funds.
[61] Significantly, it appears from the papers that the quote Gaborone
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 28
accepted is not the quote that was invoiced . It is so since the accepted
quotation dated 10 June and submitted on 13 June 2020, contained
seven items in circumstances where the RFQ, and the second quotation
was only for three items; to wit: 5000 non -sterile gloves; 5000 surgical
gloves and 30 000 N95 masks . The forgoing notwithstanding , it is
evident from the papers that the second respondent delivered normal
masks instead of N95 masks, the latter for which he quoted for and was
paid therefor . Nowhere is this discrepancy explained by the respondents .
[62] The inclusion of the coveralls, for which not only no purchase order was
transmitted before delivery, but which was questioned by Mentoor,
remains unexplained . The second respondent also could not explain why
more than 50 000, coveralls were purportedly delivered in circumstances
where only 50 000, was quoted . Nor is there any explanation as to why
250 000 surgical masks that were not requested; or why 250 000
N95/FFP2 masks were quoted, were paid for and not delivered; whilst
only 30 000 were requested b y the Department . There is also no
explanation on the papers, as to why normal masks were delivered,
instead of the foregoing . On this score alone, it follows that had the
second respondent adhered to the RFQ transmitted by the Department,
payment due would have been drastically less than what was received .
[63] The following can also be deduced , regard being had to the facts as
stated by the respondent, together with the facts alleged by the applicant,
that are admitted by the respondent . First and significantly, the
respondents admit the finding that at all material times hereto , the second
respondent was not tax compliant or registered on the applicant’s CSD or
registered on same as a medical equipment supplier . Second, the
respondents admit that the quantities in the 15 June 2020 quotation were
respondents admit that the quantities in the 15 June 2020 quotation were
inflated and included items that were not requested . Third, they admit
that according to SAHPRA, Masedi Star is not registered or licensed to
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 29
manufacture or sell PPEs . They also admit that the said company gave
contradictory information to AFU and SIU, regarding payment received
from the second respondent .
[64] The foregoing is so since the respondents’ affidavit, in response to the
said allegations has failed to admit or deny; or confess and avoid . It is
trite in our law that, in the circumstances, this Court had, for the purposes
of the application, accept the applicant’s allegations as correct .
[65] Fourth, r egarding the alleged inflated quotation value and the resultant
overpayment of an amount of R862 500.00, by the Department to the
second respondent . The respondents merely “ categorically ” den ied and
maintain ed that same is “ without merit ” and no more . Tritely, whilst it is
permissible for a respondent, without advancing evidence of facts under
oath, to seek to impugn the veracity of the applicant’s allegations by
examining their inherent validity or probity in all the proved
circumstances . The r espondents can however not content themselves
with bare unsubstantiated denials, unless of course, there is no other way
open to the respondents and nothing more can be expected of them . It is
not so in this case .
[66] Fifth, the first respondent’s contention that it is “ acceptable business
practice to communicate with the Department ” he intends providing
services to or that nothing was underhanded or illegal about same,
cannot be more legally flawed . Whilst private parties are generically free
to conduct themselves with regard to contracts to be entered into
between them . It is not so with organs of State. There are some
restrictions that apply to them by virtue of the principle of legality , which
may render wholly or partially, ineffective contracts involving the
contravention of specific rules of law or which are contrary to public
policy. In its modern guise, public policy is rooted in the Constitution and
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 30
the fundamental values enshrined therein . To this extent, Section 217 of
the Constitution, expressly and unambiguously impels all organs of State
or any other institution identified in national legislation to contract for
goods or services in accordance with a system which is fair, equitable,
transparent, competitive and cost -effective . Needless to state that, these
concepts are interconnected and interrelated .
[67] It was also submitted for the respondents that they have taken this Court
into their confidence and indicated that the purpose of the communication
was to merely seek clarity regarding what exactly the Department was
looking for from their service providers so that they could correct their
quotations . This is not only patently irregular , but is also tellingly evincing
how much the respondents were out of their depth in the sector provision
of medical supplies . The required items were quantified, qualified and
priced.
[68] It should be borne in mind that Gaborone, at all material times hereto was
exercising a public power . It is a fundamental principle of the rule law
that the exercise of public power is only legitimate where lawful . The
impugned communication between the first respondent and Gaborone on
the face of it seem not only unlawful but was also unfair , opaque,
uncompetitive to the other service providers . It is so since it does not
stand up to scrutiny by interested parties . Sixth, a bare denial that the
first r espondent ever paid any money to Gaborone or merely that the
allegation is baseless and with merit, without more , is not good enough;
regard being had to the probity in all the facts proved and circumstances
of this case .
[69] The respondents also caviled with the following: That the Department
was not called upon to show cause why the decision to procure on the
strength of emergency procurement was taken . That this failure
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 31
substantially weakened the applicant’s case because the allegations are
that the tender was awarded unlawfully, yet the decision -maker’s version
implicating the respondents in any wrong doing was not before this Court .
That the applicant also failed to attach the relevant bid evaluation and
adjudication documents which led to the appointment of the second
respondent . That consequently, this Court had no sight regarding how
and why the tender was awarded to the respondents . Without the said
documents, the respondents are placed in the unfair and impossible
position of having to explain how they were selected and appointed,
which they have no knowledge , which is unfair to the respondents .
[70] It is evident that the respondents did not know, nor had any reasonable
grounds to suspect that the funds they received from the impugned
tender constituted the proceeds of crime . That there is no evidence
which suggests that the respondents were involved in the impugned
deviation . This decision must therefore be placed at the feet of Theys
and Gaborone . This argument is not only misconceived, but is also
unsound in law .
[71] It should be borne in mind that in casu, guilt or wrong doing of the owner
or possessor is of no relevance . The unlawful activity need not have
been committed by the holder or owner of the property . It is sufficient if
the impugned proceeds are, in some way consequences of unlawful
activities 20 Conterminously, the phrase requires the impugned property to
have been derived, received and retained in connection with or as a
result of unlawful activities. 21 It is so since it has been correctly held that
the phrase “ unlawful activity ” first, it should be approached on the basis
that, subject to the necessary attenuation of the linguistic scope of “ in
connection with ” it should be given its full ambit . Second, it should also
20 NDPP v Seervarayan 2004 (2) All SA 491 SCA
20 NDPP v Seervarayan 2004 (2) All SA 491 SCA
21 NDPP v Cook Properties 2004 (2) SACR 208 SCA
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 32
be borne in mind that the objectives of the Act, is to render forfeit, the
returns that might accrue from unlawful activity .
[72] It follows from the foregoing that whilst, the applicant bears the onus to
evince on a balance of probabilities that the impugned property
constitutes the proceeds of unlawful activities and/or is an instrumentality
of an offence . It is so that in circumstances where the respondents were
faced with a prima facie case that the property is the proceeds of unlawful
activity, it does not avail the respondent to ask the applicants to
investigate the monies and properties, to establish that they are actual
fact the proceeds of unlawful activities . Matters peculiarly within the
knowledge of the respondents require them to place all the information
before the Court.22 This is because the respondents, for their own part
bear the onus of proving that their innocent recipients of the impugned
proceeds. This the respondents failed to do.
CONCLUSION :
[73] The prejudice suffered by the Department and the public purse is by no
means insignificant . The jurisprudential basis of the Act, is to inter alia,
provide for the recovery of proceeds of unlawful activity and for the civil
forfeiture of property that has been utilized to commit an offence and/or
property that amount to the proceeds of unlawful activity . This is to
ensure that criminals do not enjoy the fruits of their crimes . It follows that
the Act requires the impugned proceeds to be followed, the profits to be
seized and the spoils of criminality to be targeted, which serves the
secondary objects of deterrence and crime prevention. 23 Needless to
state, the Act is a law of general application within the contemplation of
Section 25(1) of the Constitution . Bringing its full might to bear, regard
22 NDPP v Samuel and Others 9863/2016 KZN, Unreported Judgment
23 NDPP v Wood and Others 2022 (2) SACR 245 (GJ).
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 33
being had to the facts and circumstances of this case can therefore not
amount to an arbitrary deprivation of property, as suggested for the
respondents .
[74] Regard being had to the foregoing, this Court concluded that forfeiture
was commensurate . In the premise, the impugned property fell to be
forfeited to the State because on a balance of probabilities same
constitutes proceeds of unlawful activities and/or is an instrumentality of
an offence .
ORDER:
[75] It is against this backdrop that t he following O rder issued:
1. An order is granted in terms of the provisions of Section 50 of the
PREVENTION OF ORGANISED CRIME ACT 121 of 1998
(“POCA”), declaring forfeit to the State certain property (“the
property”), which is presently subject to a preservation of property
order granted by this Honourable Court under the
abovementioned case number 29 September 2023 and
subsequently confirmed on 08 December 2023; to wit:
10.1. Erf 1[...], also known as 9[...] T[...] Street, Royldene, Kimberley.
10.2. Erf 1[...], also known as The Lyve Café, corner Chapel and Du
Toitspan Street, Kim berley.
10.3. One White Audi A1, with registration number K[...]; and
10.4. Certain Kitchen Equipment, delivered and installed at The Lyve
Café, corner of Chapel and Du Toitspan Streets, Kimberley, as
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 34
per annexure JS 41. 24
11. A further order be and is hereby granted in terms of Section 52(2)(a) of
POCA, excluding the interest of Standard Bank, in respect of the
abovementioned property referred to in paragraph 1.2, from the operation
of the forfeiture order.
12. The curator bonis , Mr Yousuf Hassen, appointed by this Court, in terms
of the order granted on 29 September 2023, is directed to continue to act
as such with authority to perform all the functions specified in the POCA,
subject to the provisions of the ADMINISTRATION OF ESTATES ACT 66
of 1965 and the supervision of the Master of the High Court.
13. The curator bonis shall have all such powers, duties and authority as
provided for in POCA and this Order; including such powers, duties and
authority reasonably incidental thereto and shall, in addition, be subject to
the applicable provision of the ADMINISTRATION OF ESTATES Act 66
of 1965. The fees and expenditure of such curator bonis reasonably
incurred in the execution of his duties shall be paid from the proceeds of
the forfeit property.
14. In terms of Section 56(2) of POCA, the property shall vest with the
curator bonis on behalf of the State, on the date on which this forfeiture
Order takes effect.
15. The curator bonis is authorised as of the date on which this forfeiture
Order takes effect to:
15.1. Assume control of the property and take it into custody.
24 i.e. “the Schedule of Equipment”
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 35
15.2. Dispose of the property with public sale.
15.3. Deal with the excluded interest in terms of Section 52(2) of POCA,
granted in favour of Standard Bank.
15.4. Deduct his fees and expenditure that were approved by the
Master of the High Court, subject to the exclusion of interest in the
property under Section 52(2) of the POCA, granted in favour of
Standard Bank.
15.5. Deposit the balance of the proceeds into the Criminal Assets
Recovery Account number 8[...], established under Section 63 of
the POCA, held at the South African Reserve Bank, Vermeulen
Street, Pretoria.
15.6. Perform any ancillary acts which, in the opinion of curator bonis ,
but subject to any directions of the Criminal Assets Recovery
Committee, established under Section 65 of the POCA, are
necessary.
16. The curator bonis shall as soon as possible, but not later than within a
period of 90 days of this Order coming into effect, file A Report with the
applicant and the Master of the High Court, indicating the manner in
which he:
16.1. Completed the administration of the property mentioned above;
and
16.2. Complied with the terms of this Order.
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 36
17. Any person affected by this Order and who was entitled to receive notice
of the application under Section 48(2) of the POCA, but who did not
receive such notice, may within 45 days, after the publication of the
notice of this Order in the Gazette, apply for an order under Section 54 of
the POCA, excluding his or her interest in the property; or varying the
operation of this Order, in respect of the property.
18. All the paragraphs of this Order shall operate with immediate effect,
except paragraphs 4,5 and 6; which will only take effect on the day that a
possible appeal is disposed of in terms of Section 55 of the Act; or after
the day that an application for execution of interest in the forfeited
property in terms of Section 54 of the POCA, is disposed of; or after
expiry of the period in which an appeal may be lodged or application be
made in terms of Section 54 of the POCA, whose interest in the property
concerned is affected by this Order, may within 20 days after he or she
has acquired knowledge of this Order, set the matter down; after giving
notice thereof to the applicant, for variation or rescission by this Court;
and
19. The costs of this application are awarded to the applicant .
APS NXUMALO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Reasons: NDPP // CS Sibisi & Others [1820/2023] Page 37
Appearances :
For Applicant: MS MTOBI
Instructed by: Office of the State Attorney
Kimberley
For Respondent s: ADV GEDEDGER
Instructed by: Shaheem Samsodien Attorneys
c/o Lulama Lobi Inc.