THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number 624/04
Reportable
In the matter between:
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS APPELLANT
and
MAGDALENA ELIZABETH PARKER RESPONDENT
CORAM: HOWIE P, CAMERON, MLAMBO JJA,
COMBRINCK et NKABINDE AJJA
HEARD: 15 SEPTEMBER 2005
DELIVERED: 1 DECEMBER 2005
SUMMARY: [1] Criminal law - Application for forfeiture order of property in
terms of s 48 of Prevention of Organised Crime Act 121 of 1998:
whether property sought to be forfeited to State is an ‘instrumentality
of an offence’
[2] Court’s approach - to sustain a forfeiture court must be able
to conclude on a totality of circumstances that the property was
substantially instrumental in the commission of the offence.
[3] The Court’s order is set out in paragraph [25]
___________________________________________________
JUDGMENT
___________________________________________________
NKABINDE AJA
2
[1] This appeal concerns the question whether the immovable
property known as Erf 10085, Elsies River, situated at 13 Avondale
Street, Elsies River (‘the property’ ), was ‘an instrumentality of an
offence’ within the meaning of th e Prevention of Organised Crime Act
121 of 1998 (‘the Act’) and so liabl e to forfeiture under s50(1) (a). 1 The
property was earlier made subject to a preservation order in terms of s 382
of the Act. The offences envisaged in the phrase ‘instrumentality of an
offence’ as far as this case is concerned are those set out in Schedule 1 of
the Act and which include any offences referred to in s 13 of the Drugs
and Drugs Trafficking Act 140 of 1992 (the ‘Drugs Act’). One of the
1 S 1 of the Act defines ‘instrumentality of an offence’ as meaning ‘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;’ and ‘property’ as ‘money or any
other movable, immovable, corporeal or incorporeal thing and includes any ri ghts, privileges, claims,
securities and any related interest therein and all proceeds thereof;’ In Cook Properties, referred to in
para 14, infra, this court considered that ‘the words “concerned in the commission of an offence” must
… be interpreted so that the link between the crime committed and the property must be functional to
the commission of the crime. … that the property must play a reas onably direct role in the commission
of the offence. In a real or substantial sense the property must facilitate or make possible the
commission of the offence. … the property must be instrumental in and not merely incidental to, the
commission of the offence. For otherwise there is no rational connection between the deprivation of the
property and the objective of the Act.’; See also the judgment of this court in Simon Prophet v NDPP,
case number 502/2004 delivered on 29 September 2005.
2 S 38 of the Act in so far as herein relevant provides for ‘preservation of property orders’:
‘(1) The National Director [of Public Prosecutions] may by way of an e x parte
application apply to a High Court for an order prohibiting any person, subject to such
conditions and exceptions as may be specified in the order, from dealing in any
manner with any property.
( 2) The High Court shall make an order referred to in subsection (1) if there are
reasonable grounds to believe that the property concerned –
(a) is an instrumentality of an offence referred to in Schedule 1; or
(b) is the proceeds of unlawful activities.
(3) …
(4) …’
3
offences mentioned in s 13(1) of the Drugs Act is the offence created by
s 5(b) which makes it an offence to ‘deal in’ 3 dangerous dependence-
producing substances or undesirable dependence-producing substances.
One of the objects of the forfeiture mech anism in the Act is to assist in
putting an end to serious and large scale criminality.4
[2] The National Director of Public Prosecutions (‘NDPP’) applied for
and was granted a preservation order in respect of the property by the
Cape High Court (‘the court a quo’). In subsequent forfeiture proceedings
3 S1 of the Drugs Act defines ‘deal in’, in relation to a drug, as including ‘any act in connection with
the transhipment, importation, cultivation, co llection, manufacture, supply, prescription,
administration, sale, transmission, or exportation of the drug.
4 A measure which aims to remove the incentive for crime, not punish. However forfeiture has a
punitive result : In this regard, this court (Cook Properties) stated that -
‘[6] The Cook Properties… turn on the meaning of “instrum entality of an offence” in the Act;
…The meaning …must be determined in the lights of the overall purpose of the Act. In NDPP v
Mohamed NO and Others(Mohamed (1)), the Constitutio nal Court considered the Act’s purpose, as
gathered from its long title and preamble, and then assessed its structure and effect, in particular
Chapter 6. The provisions of chapter 6 it described as “complex and tightly intertwined, both as a
matter of process and substance”. Although formally Mohamed (1) concerned only the narrow issue of
the constitutionality of the ex parte preservation procedure under section 38, Ackermann J’s full
exposition is in point. He first sketched the need for the legislation against the background of the
inadequacy of conventional criminal penalties(paragraph 15):
“Various international instruments deal with the problem of international crime in this regard
and it is now widely accepted in the international community that criminals should be stripped
of the proceeds of their crimes, the approach has similarly been adopted by our legislature.”.’
‘[17] We agree that Chapter 6 ha s remedial objectives. But these cannot disguise the fact that
forfeiture, once exacted, operates as a punishment. The United States Court in a not dissimilar context
has observed that the notion of punishment cuts acr oss the division between civil and criminal law.
Civil proceedings may advance punitive as well as remedial goals, and sanctions frequently serve more
than one purpose. Hence the fact that a civil statute is remedial does not mean that it may not also have
a punitive dimension. That certainly applies to Chapter 6. The Legislature has expressly ordained that
proceedings under the chapter are “civil . . . not criminal” (section 37(1)), and its provisions have some
penal element. At the same time, the chapter’s punitive dimension does not mean that its sole or even
predominant aim is to punish those implicated. As pointed out in Mohammed (1), the primary objective
of provisions of this sort is “to remove the incentive for crime, not to punish” criminals.’
4
pursuant to s 48(1) of the Act 5 the court a quo (Cleaver J) dismissed the
NDPP’s application with costs. With the leave of that court the NDPP
now appeals.
[3] The evidence relied upon by the NDPP is set out in affidavits by
Advocate Jan Gerber, the Deputy Direct or of Public Prosecutions, and of
Detective Ludwig Durrbaum, respec tively. The affidavit of Durrbaum
was filed in support of the preser vation application. The NDPP’s case
was that the property, which is currently under the control of a curator
bonis, is, according to the information procured from the Registrar of
Deeds, owned by the respondent. It cons ists of a main house and an outer
room (‘granny flat’) at the back of the main house. The respondent lives
in the granny flat. Her son, Henry Parker (‘Henry’), his wife and children
live in the main house. A sizeable number of paying lodgers and their
families live in the structures on th e property. The property is surrounded
5 The section provides:
‘If a preservation of property order is in force the National Director, may apply to a High
Court for an order forfeiting to the State all or any of the property that is subject to the preservation of
property order.’
5
by a high wall with metal spikes on top. The only access into the
property is through a gate in front of the house. The gate leads into a
driveway which is covered by a roof and leads to the main house. There
is a couch and television set in the covered driveway. Henry Parker
managed the lodging business for the respondent.
[4] Adjacent to the property is a vacant plot No. 10086 (‘the plot’)
owned by the municipality. There is a motor vehicle wreck and a shack
on the vacant plot.
[5] The NDPP alleged that numerous complaints about drug dealings
on the property had been received by the police. The police intelligence
had also reported that Henry used the property as a drug shop. In
consequence ten successful entrapment operations carried out in terms of
s 252A6 of the Criminal Procedure Act 51 of 1977 (‘CPA’) confirmed the
complaints and report. These took place over the period June 2002 to July
2003.
6 Which essentially authorises and renders lawful the use of traps and undercover operations in certain
circumstances and deals with the admissibility of evidence so obtained.
6
[6] The entrapment operations were carried out by way of ‘test buys’
whereby an undercover policeman (‘t he trap’) was, on different
occasions, sent to the property to pur chase drugs in the form of dagga
‘stoppe,’ mandrax and ecstasy tablets as well as crack cocaine crystals.
The trap, on such different occasions , entered the property through the
gate leading into the covered drivew ay. He would order the drugs from
somebody present on the property at the time. He would wait on the
couch in the driveway whilst the se ller exited the property through the
same gate and returned with the orde red drugs. In two of the entrapment
operations the seller, after taking the order, was seen going to the plot and
returning to the property through the gate, carrying the ordered drugs. In
one of such operations the seller, af ter the trap had ordered ten ecstasy
tablets and ten crack cocaine crystals, emerged from the main house with
only a portion of the order. He explained to the trap that ‘they were out of
stock.’
7
[7] Apart from the evid ence relating to the entrapment operations,
routine patrol investigations during the period September 2001 to October
2002 revealed, inter alia, that drugs were found stored on the plot. These
consisted of 25 mandrax tablets, ecsta sy tablets, a large number of dagga
‘stoppe’ some of which were fou nd in the wreck and the shack, while
others were found elsewhere on the plot.
[8] Forensic analyst reports revealed that the crack cocaine crystals,
ecstasy and mandrax tablets and the dagga ‘stoppe’ contained
‘dangerous’ and ‘undesirable dependence-producing substances.7
[9] Some of the sellers were arrested at the completion of a particular
deal. In other instances arrest of th e seller followed after completion of a
number of deals. One of the sellers, a man named Heyens, was arrested
and charged with dealing in drugs in contravention of the Drugs Act. He
pleaded guilty and was convicted and sentenced. That, however, did not
deter him from continuing to sell drugs on the property. He did so despite
7 See Part 11 of schedule 2 of the Act.
8
having been notified 8 by the police to desist from doing so. He was
subsequently arrested and charged ag ain with dealing in drugs. Another
arrested seller, had sold crack cocaine crystals and ecstasy tablets to the
trap. He was the accused in severa l drug related cases which all arose
from the entrapment operations conducted on the property.
[10] During November 2002 and after numerous successful entrapment
operations and Heyens’ arrest, the po lice attempted to serve a notice on
the respondent. She refused to acknowledge receipt of it or to sign it. A
copy of the notice was nonetheless left with her. The notice sought to
inform her that the police were of th e opinion that that the property was
an instrumentality of an offence and that the selling of drugs on the
property was unacceptable and should cease with immediate effect,
failing which an application for a forfeiture order in terms of Chapter 6 of
the Act would be made.
8 The notice was addressed to the ‘Wettige huurder’ and was served on Heyens on 22 August
2002.Heyens acknowledged receipt by signing ‘N.V.T’ (nie van toepassing).
9
[11] The respondent denied that her property was an instrumentality of
drug offences. In her answering affida vit in the preservation application
the respondent, in an attempt to refute the NDPP’s allegations, stated:
‘… ek ontken en/of (is) onbewus van die fe it dat my eiendom ’n misdaadinstrument
van ’n misdaad bedoel in Bylae (1) … [e]k is bewus dat daar voortdurend ’n toeloop
is van mense op die erf, dog is ek onbewus wi e hulle is. Ek neem maar aan dat dit die
huurders en/of hulle familielede en/of vrie nde is. Die huurbesighe id word gehanteer
deur my seun en sy eggenote aangesien ek oud en ongeletterd is …. Ek ontken dat is
onbewus dat daar onwettige aktiwiteite plaasvi nd op my erf. …. [I]n die gevalle waar
dwelms gekoop is, die dwelms van die aangrensende leë erf bekom is.
[12] In her answering affidavit in the forfeiture proceedings she
reiterated, inter alia,-
‘ek ontken dat my erf as ’n misdaadinst rument gebruik word en indien dit wel
gebruik word, is ek onbewus daarvan, en verder, dat ek ontken dat daar onwettige
bedrywighede op die erf plaasvind. . . . dat ek ’n onskuldi ge eienaar van die eiendom
is wat geen persone toesteming gegee het of toegelaat het om onwettige bedrywighede
uit te voer op my eiendom.’
10
In short she contended that she was an ‘innocent owner’. It is clear that
the respondent did not really take issue with the allegations regarding the
entrapment operations, the arrests on the property, that the property was
known as a drug outlet, and that it had facilities in the driveway described
by the police as having served the convenience of buyers and thus
facilitated drug deals.
[13] The preservation procedure in terms of s 38 of the Act9 is described
by Ackermann J in NDPP and Another v Mohamed NO and Others 2002
(4) SA 843 (CC) as a two-staged pr ocedure whereby property which is an
instrumentality of a criminal offe nce is forfeited. The Constitutional
Court stated further that:
‘. . . Chapter 6 provides for forfeiture in circumstances where it is established, on a
balance of probabilities, that property has been used to commit an offence … even
where no criminal proceedings in respect of the relevant crime have been instituted.
… Chapter 6 is therefore focused, not on wr ongdoers, but on property that has been
used to commit an offence or which const itutes the proceeds of crime. The guilt or
9 See fn 2, supra.
11
wrongdoing of the owners or possessors of property is, theref ore, not primarily
relevant to the proceedings.
… There is, however, a defence at the second stage of the proceedings when forfeiture
is being sought by the State. An owner can at that stage claim that he or she obtained
the property legally and for value, and that he or she neither knew nor had reasonable
grounds to suspect that the property … had been an instrume ntality in an offence (‘the
innocent owner’ defence)’.10
[14] In the recent judgment in NDPP v RO Cook Properties (Pty) Ltd
and Others 2004 (2) SACR 208 SCA; 2004 8 [BCLR] 844 (SCA), this
court had occasion to determine, inter alia, whether a hotel where drug
deals frequently occurred was an ‘i nstrumentality of an offence’. The
court, after considering the purport of the Act stated that the Legislator, in
its definition of the phrase, ‘instrum entality of an offence’, ‘sought to
give the phrase a very wide meani ng’. It however found that ‘a literal
interpretation … could lead to forfe iture of property whose role in or
utility to a crime is entirely incident al to its commission …’, that ‘[o]ne
10 Supra, at paras 17 and 18.
12
meaning of ‘concerned’ is ‘to be in a relation of practical connection
with; to have to do with; to have a part or shar e in; to be engaged in;
with’11 and concluded that ‘unbounded literalism is not appropriate’ for
the following reasons:
‘… First, the purport of th e statute itself suggests some restriction. The purpose of
Chapter 6’s forfeiture provisions is signalled in the part of the Act’s Preamble that
states that “no person should benefit from th e fruits of unlawful activities, nor is any
person entitled to use prope rty for the commission of an offence”. The “use” of
property “for” the commission of crime denotes a relationship of direct functionality
between what is used and what is achieved …
… The second reason for limiting the provisions is that they must be construed
consistently with the Constitution. The B ill of Rights provides that “no law may
permit arbitrary deprivation of property”. And a literal application of the provisions
could well lead to arbitrary deprivation. The Constitutional Cour t has held that a
deprivation of property is ar bitrary when the statute in question does not provide
sufficient reason for the deprivation or is procedurally unfair”.
12
11 Cook Properties, para 12.
12 Cook Properties, supra, at paras 14 and 15.
13
The remarks and conclusion, above, with which I agree, were taken
into account by the court a quo.13
[15] In analysing the evidence the court a quo correctly found that the
appellant had established that drugs were sold with considerable
regularity on the property. 14 Having said that it went on to acquire
whether the regular sale of drugs on the property made the property ‘an
instrumentality of an offence’. It co mpared the factual situation in this
case with the situation where a drug d ealer uses a secluded alley in a city
as a place from which drug s are regularly sold. The court concluded that
as the alley could not constitute ‘an instrumentality of an offence’ neither
did the property. The court found that as the NDPP had failed to establish
facts sufficient to distinguish the property from the alley situation 15 he
had therefore ‘failed to establish th e required closer connection and the
application could therefore not succeed. I do not, with respect, agree.
13 At para 17.
14 At paras 11 and 15.
15 At para 15.
14
[16] In Cook Properties this court, when considering whether the
hotel concerned constituted an instrumentality of an offence, held that the
frequency of drug deals at the hotel wa s insufficient to make it a drug
shop. The court considered that th e paucity of evidence, regarding, inter
alia, whether (a) the same persons had been arrested on raids on the hotel,
(b) rented rooms had been equipped to facilitate drug dealing, and (c)
drugs had been manufactured, pack aged and/or distributed on the
property, militated against a finding th at the property was instrumental to
the commission of the offence. 16 It is necessary, when making a
determination whether property is an instrumentality of an offence, to
look at the broader picture of instrumentality.
[17] The situation in Cook Properties appears to me to be
distinguishable from the situation in this case. There, firstly, the hotel was
in business to rent out rooms to the public. It accordingly had a public
character and a public space which wa s not easy for the owner or its
16 See paras 49 and 50 in Cook Properties
15
employees to control. Secondly, the dealers were tenants who came and
went. Thirdly, the hotel was in an area notorious for drug dealing. In this
case, we are dealing with a private dwelling which is not in a similarly
notorious area. Unlike th e hotel scenario, a house owner can reasonably
be expected, alone or through family members, to act vigilantly and
exercise control in relation to the pr operty to prevent crime there or at
least to have an interest in knowing if crime is being committed there.
Despite the arrests referre d to, dealing in drugs nevertheless continued
unabated. True, there was a variety of different sellers but it is inherently
more likely that they were agents for somebody resident on the property
rather than that as dealers themselves they went to this house to sell their
wares when they could do so in the str eet or elsewhere. Even in the latter
event it is more likely than not that the respondent’s son would, as her
representative in managing the property, have been aware that the sellers
were using the property as their market and permitted them to do so.
16
[18] The NDPP, in terms of s 50(1) of the Act, bears the onus, on a
balance of probabilities, to esta blish that the property was an
instrumentality of an offence. In order to sustain a forfeiture order the
court must, in my view, look at the whole picture and determine whether
the property, in the totality of th e circumstances of the case, was a
substantial and meaningful instrumentality in the commission of the
offence.
[19] The court a quo, in arriving at the conclusion that the property was
merely the incidental venue from which drugs were obtainable, does not
appear to have looked at the whole picture. It made a comparison, as I
have said, between the facts in this case and postulated the situation
where drugs are sold regularly by drug de alers in an alley in a city. In my
view the two situations are, with respect, not analogous. The alley is
clearly just a venue for drug deals. The evidence here goes further than
establishing that the property was merely a venue.
[20] A scrutiny of all the evidence, reveals the following features which
17
must be added to what I have said already:
(a) the property was a place where buyers could find drugs for sale;
(b) most of the deals were ex ecuted on the same portion of the
property, namely, the covered dr iveway where customers with
privacy and relative safety conducted their business;
(c) the frequency of the entrapment operations over a protracted period
clearly shows that drug dealing on the property occurred regularly;
(d) it is possible that the trapping incidents were not the only times
during which drugs were sold there;
(e) a variety of drugs (mandrax tabl ets, crack cocaine crystals, ecstasy
tablets and dagga ‘stoppe’), was available ;
(f) one of the successful entrapment operations established that the
seller entered the main house and re turned with ecstasy tablets and
crack cocaine crystals. Two reasonable possibilities may be
inferred: first, that the ecstasy and cocaine might have been
procured from someone else with in the house, second, that they
18
might have been stored in the house. However the latter
inference seems more plausible wh en regard is had to the telling
words used by the seller concerned that they were ‘out of stock’;
and
(g) the adjoining plot and the moto r vehicle wreck provided very near
yet safely distant storage for some of the drug supply.
[21] As I have indicated earlier, th e respondent did not deny any of the
specific facts regarding the sales of drugs and the storage of some on the
property as well as the fact that a por tion of the property was adapted for
customer convenience. Although it is not odd to have that kind of
adaptation on a residential property, it is, on the totality of the facts in this
case, probable that the property was adapted to facilitate the illegal
activities on it particularly when rega rd is had to the failure by the
respondent to refute the essential facts.
19
[22] The respondent’s professed l ack of knowledge has no bearing on
the determination of the issue relating to the first inquiry. 17 Such
protestations, in so far as they relate to the first stage inquiry, do not, in
any event, establish any material dis pute of fact. In my view, on all the
evidence, the NDPP has established on a balance of probability that the
property was not an incidental venue from which drugs were obtainable,
but was in fact a drug shop and theref ore substantially instrumental in the
commission of the illegal activities. Had the court a quo considered all
the evidence in deciding whether the property was an instrumentality of
an offence, it would, in my view, have answered the question in the
affirmative.
[23] Turning to the seco nd stage of the proceed ings, the respondent had
the opportunity to claim that she obt ained the property legally and for
value, and that she neither knew nor had reasonable grounds to suspect
that the property had been an instrumentality in an offence (‘the innocent
owner defence’), and a pply for an order excluding her interest in the
17 see Mohamed, supra, para 13 and Cook Properties, supra, paras 10, 11 and 21
20
property from the operation of the forfeiture order in terms of s 39(3) 18
read with s 48 (4)(b)(i) and (ii) 19 of the Act. The provisions of the Act
require the respondent, when applying for the exclusion of her property
from the operation of a forfeiture orde r, to establish on a balance of
probabilities, inter alia, that she neither knew nor had reasonable grounds
to suspect that the property was an instrumentality of an offence. 20 She
did not so apply. A dispute of fact clearly exists on affidavit regarding the
respondent’s innocence. Such a dis pute of fact, given the fact the
respondent is required to discharge th e onus with regard to her assertion
18 S 39(3) provides: ‘Any person who has an interest in the property which is subject to the preservation
of property order may enter an appearance giving notice of his or her intention to oppose the making of
a forfeiture order or to apply for an order excluding his or her interest in the property concerned from
the operation thereof.’
19 S 48(4) provides:
‘(4) Any person who entered appearance in terms of s 39(3) may appear at the application under
subsection (1) –
(a) …
(b) to apply for an order –
(i) excluding his or her interest in that property from the operation of the order; or
(ii) varying the operation of the order in respect of that property,
and may adduce evidence at the hearing of the application.
20 S52 (1) and (2A) of the Act provides:
‘52. Exclusion of interest in property. – (1)The High Court may, on application - … and when it
makes a forfeiture order, make an order excluding cer tain interests in property which is subject to the
order, from the operation thereof.’
(2) …
(2A) The High Court may make an order under subsection (1), in relation to the forfeiture
of an instrumentality of an offence referred to in Schedule 1, if it finds on a balance of probabilities that
the applicant for the order had acquired the interest concerned legally; and-
(a) neither knew nor had reasonable grounds to suspect that the property in which the
interest is held is an instrumentality of an offence referred to in Schedule1; or
(b) where the offence concerned had occurred before the commencement of this Act, the
applicant has since the commencement of this Act taken all reasonable steps to prevent
the use of the property concerned as an instrumentality of an offence referred to in
Schedule 1.’
21
of lack of culpability, must be d ecided on the facts averred by her and
those alleged by the NDPP which she admits.21
[24] The court a quo, by virtue of its finding on the first stage of the
proceedings, concluded that it was not necessary to proceed to the second
stage of the inquiry and dismissed the application by the NDPP with
costs.22 The issue on appeal is therefore confined to the question whether
the property sought to be forfeited to the State is an instrumentality of an
offence. At the hearing a quo the respondent did not seek the opportunity
to adduce oral evidence to establish either her innocence or the reasons
why her property should be excluded from the operation of a forfeiture
order. When regard is had to the caveat sounded in Cook Properties
23 as
to the constitutionality of the reve rse onus resting on the respondent, it
seems to me that a remittal of the case for oral evidence on that leg of the
case is, in the circumstances the appropriate course to take.
21 Plascon-Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E -635C.
22 See para 17 of Cleaver J’s judgment.
23 Supra, at para 26, the court stated-
‘We emphasise that none of the owners in the appeals before us invoked the second
stage of the Chapter’s procedur es: in the course each case took , they staked their fortunes
rather on a narrow reading of “instrumentality of an offence”. As a result these cases do not
require us to give a determinative reading of the second-stage provisions. Nor is the
constitutionality of the reverse onus resting upon owners facing forfeiture before us. It may be
that section 52(2A) (a) should be read, applying the common-law maxim that the law does not
demand the impossible, so as to avoid forfeiture when the owner has done “all that reasonably
could be expected” to prevent the unlawful use of the property, and that this can properly be
done despite the contrasting proximity of sub-paragraph (b). We need not decide that now.
Nor do the appeals require as to confront the serious constitutional question whether forfeiture
is permissible when the owner has committed no wrong of any sort, whether intentional or
negligent, active or acquiescent.’
22
[25] In the result the following order is made:
1. The appeal is upheld with costs, including the costs of two counsel.
2. The order of the High Court is set aside and replaced with the
following order:
‘1. The property in question having been found to be an
instrumentality of an offence, and th ere being a dispute on the affidavits
on the issue of the respondent’s know ledge in so far as the defences
provided for in s 52(2A) (a) and (b) are concerned, the matter is referred
for the hearing of oral evidence on that issue.
2. The referral is subject to the following:
2.1 The parties are hereby given leave;
2.1.1 to subpoena any deponent to an affidavit presently on
record;
2.1.2 to call any witness who is not such a deponent
provided:
23
2.1.2.1 the party concerned ha s served on the other party
(at least 3 weeks before the date appointed for the hearing in
the case of a witness to be called by the respondent or at
least 2 weeks before such date in the case of a witness to be
called by the applicant) a statement setting out the intended
evidence-in-chief to be given by such person;
2.1.2.2 the court, at the hear ing, permits such person to be
called despite the fact that no such statement has been
served.
2.2 The rules in respect of disc overy and related matters shall
apply unless the parties agree in writing to dispense with
their application.
24
3. The matter is remitted to the court a quo to deal with the second
leg of the inquiry at the hearing referred to in paragraph 2.
______________
NKABINDE AJA
CONCUR:
Howie P
Cameron JA
Mlambo JA
Combrinck AJA
25
[26] I have had the benefit of readi ng the judgment of my colleague
Nkabinde AJA, and concur in her r easoning and her conclusion that the
NDPP succeeded in establishing u nder the Prevention of Organised
Crime Act 121 of 1998 (POCA) that the respondent’s home at 13
Avondale Street, Elsies River, was a criminal instrumentality. I also
gratefully adopt her exposition of the facts and statutory setting; but
because this case has given me difficulty and seems to fall close to the
borderline, I add some considerations.
[27] The statute required the NDPP to prove that the property was
‘concerned in the commission’ of the drug offences. Though the
legislation says very broadly that any property ‘concerned’ in the
commission of an offence is liable to forfeiture, both common sense and
constitutional principle require us to read that within practicable limits.
As Nkabinde AJA points out (par a 14), for not just compelling
constitutional considerations, but sound reasons of language arising from
the Act, this court held in NDPP v Cook Properties 2004 (2) SACR 208
26
(SCA) that the definition of ‘instr umentality’ has to be restrictively
interpreted. Not literally every material object or immovable property
‘concerned’ in an offence can be liable to forfeiture, since that would cast
an ocean-wide net. The link betwee n the crime and the property must be
reasonably direct, and the property mu st be used in a way that is
functional to the commission of the crime. This means it must be
instrumental in, and not merely incident al to, the offence. It must play a
reasonably direct role in the offence – in a real or substantial sense
making the crime possible or easier ( Cook Properties para 31). Any
looser reading would not only be at odds with the statute, but would
imperil the constitutionality of its provisions.
[28] The difficulties in determining criminal instrumentality come
acutely to the fore with immovable property, as this case in my view
shows. Between 2 June 2002 and 25 July 2003, the police conducted no
fewer than ten ‘sting’ operations at the property. Each time traps
successfully procured a range of ille gal drugs – dagga, mandrax, ecstasy
27
and crack cocaine – from dealer s who were on the property and
operating from it. The drugs were not only those reputedly regarded as
‘soft’, like dagga and ecstasy, about whose ill effects there has been
debate in the medical literature; but crack cocaine, which is a viciously
destructive and addictive substance.
[29] Can the property itself be found to have facilitated or made
possible the commission of these offences? It was certainly the site
where they took place. In this loose sense it was undoubtedly ‘concerned
in’ the offences. But that is not enough. Merely to provide a venue for
crime does not entail instrumenta lity. Since every crime that is
committed has to take place somewhere, something more is required.
This is illustrated by the Blenheim Hotel in Cook Properties (paras 46-
50), where drug dealing also occurred. The police evidence established a
high incidence of crime inside and ar ound the hotel, and repeated arrests
on drugs charges of pers ons found on the premises or residing there.
Drugs were repeatedly discovered on the premises, as well as drug
28
paraphernalia. In response to this evidence, the judgment in Cook
Properties noted the public character of the premises: anyone could rent a
room or rooms for any le ngth of time; and because the hotel was situated
in an area the NDPP’s own evidence de picted as rife in crime, it was
likely to attract persons who might possess drugs. There was moreover
no evidence that the persons arrested in various raids and searches were
the same people (para 49). This cour t therefore concluded that the hotel
was merely the venue at which the offences occurred.
[30] So providing a location is not enough. Either in its character or in
the way it is used, the immovable property must itself in some way make
the commission of the offence possibl e or easier. Examples given in
Cook Properties (para 34) include cultivating land to produce drug crops;
appointing, arranging, organising, cons tructing or furnishi ng premises to
make possible or easier the commission of the crime; or the fact that the
particular attributes of a location are used as an enticement to victims (as
where a criminal uses a houseboat to lure minors as sexual prey). A
29
powerful recent instance of forfeitu re of a house, part of which had
been specially adapted and equipped to manufacture drugs, is the decision
of this court in Prophet v National Director of Public Prosecutions (29
September 2005) (para 29).
[31] Instances of storage or adaptation ar e in a sense easy. This case is
more difficult. Unlike Prophet, there is no suggestion that the premises
were adapted to produce drugs or em ployed for that purpose. The police
affidavits did try to suggest that th e entrance arrangements – a high wall
with a single entry, leading onto a covered driveway furnished with a
couch and television – facilitated drug dealing. The evidence from the
police traps showed that in three out of the ten stings, buyers were invited
to sit on the couch while the drugs were procured.
[32] From this we were urged to find that the property was appointed to
facilitate drug dealing; but in my view the basis is flimsy. Many working
class homes have seating on the street side – in garages, driveways and on
patios. It is correct, as Mr Trengove emphasised for the NDPP, that the
30
facilities were on occasion used fo r the convenience of waiting drug
buyers. But this does not in my view help to establish that the premises
were adapted for drug-dealing.
[33] Nor, apart from the incident Nkab inde AJA mentions in para 20(f)
of her judgment, is there any eviden ce that drugs were stored on the
premises. Despite repeated incident s of drug dealing, the police chose
not to raid the house (in fact it seems that at no stage did they enter at all).
No stashes or stores were found on the property itself.
[34] The importance of the case is that in the absence of evidence of
adaptation or storage, the NDPP sought to establish instrumentality on the
basis of the repeated use of the prem ises as a venue for drug deals. And
the evidence indeed shows that the property was the base for a very
considerable drug-dealing business. Here the ten successful stings over
the year of surveillance are telling, for they show that many more such
transactions must have taken place during that period. All the deals were
concluded brazenly and without discerni ble inhibition. So we must also
31
accept the NDPP’s assertions that the property ‘is a well-known drug
outlet in the community’ and that, despite numerous complaints, drug
dealing from it continued unabated. Indeed, even though some of the
stings led to successful prosecutions within the year, and even though
warning notices were served at th e property, dealing seems to have
persisted without restraint.
[35] The NDPP’s argument accordingl y branded the house a ‘drug
shop’. The difficulty is that this is not the whole story. The premises are
also a home. The owner of the hous e, Mrs Parker, the respondent, was
born on 10 August 1923. She is now 82 years old. She lives in the
‘granny flat’ behind the house. Her son, Henry ‘Boere’ Parker, lives with
his wife Sandra and teenage daughter Sharon in the main house. The erf
is reasonably spacious: 496 square me tres, or one-eighth of an acre
(municipal regulations in South Africa’s major c ities standardly permit
two semi-detached dwellings plus domestic employees’ quarters on such
a stand).
32
[36] And like many working class residences in South Africa, this one
is crowded. In addition to the Parkers, the following people were living
there when the affidavits resisting forfeiture were filed in February 2004:
(a) Ms Althea Olcker, 20, with her two year-old son;
(b) In a ‘Wendy house’, Mr Martin and Mrs Rachel Valentine, with their
27 year-old daughter and her two children of nine and six;
(c) In another ‘Wendy house’, Ms Mildre d de Wet (44) and her twelve
year-old son;
(d) In a caravan, Ms Sylvia Roberts (50), living on a disability grant;
(e) In a corrugated iron structure next to the main house, Dawid Berman
(57), also living on a disability grant;
(f) In a third ‘Wendy house’, Mr Ricardo and Mrs Karen Scrimgeor, with
their two children of four and five.
[37] The police do not dispute this. On the contrary, the main deponent
in their first set of affidavits noted th at ‘there is a high turnover of people
who live in the main house’. Almost twenty people were thus living on
33
the property during the period in issue. By name none of them seems,
nor do the police claim them, to have been implicated in any of the drug
stings. In addition to being a ‘drug shop’, this property had an
undeniably residential character.
[38] Yet the fact that the property wa s home to its residents cannot
serve as a veto to a finding that it wa s also a criminal instrumentality.
The house forfeited in Prophet was also a residence. Where evidence of
adaptation or storage is lacking, and the police case depends principally
on the frequency with which the propert y serves as a venue for criminal
conduct, the characterisation of the prop erty as a criminal instrumentality
necessarily becomes a question of de gree. As Nkabinde AJA observes
(paras 16-18), it is necessary to cons ider the overall picture. This was
also the approach in Prophet (para 27): as held ther e, the court must be
able to conclude, after considering th e totality of the circumstances, that
the property was a substantial and meaningful instrumentality in the
commission of the offences.
34
[39] And, as Nkabinde AJA points out (para 17), this is indeed a
stronger case than Cook Properties. First, as mentioned, some of the
persons involved in the stings were arrested (and even convicted) more
than once. This shows a persistent pattern of associ ation between the
dealers and the premises. The dealer s did not merely happen to be there
when they committed their offences: their presence on the property tends
to reveal the character of the premis es and the use to which they were
being put as a place of trade.
[40] Even more tellingly, Mrs Parker te lls us that Henry Parker (whom
the police claim is a well-known gang l eader and drug dealer in Elsies
River) conducts the lodging business on her behalf. She explains that she
has relinquished control and supervisio n of the property to her son: ‘My
flat is on the opposite side of the e rf, and I am unaware of any activities’
(my woonstel is aan die teenoorgestelde kant van die erf en ek is onbewus
van enige aktiwiteite).
35
[41] As explained in Cook Properties (paras 19-20), the guilt or
wrongdoing of the occupants or the owne r is not the primary focus at the
criminal instrumentality stage. Mrs Parker will in due course be entitled
to an assessment of what is loosel y called the ‘innocent owner’ defence
under s 52 of POCA (Cook Properties para 23). The present question is
the character of the premises, and whether the drug-dealing that took
place there so characterised them that the property can be said to have
been instrumental in it. Here the fact that the house is owner-occupied,
and that the owner’s son exercises pe rsonal control a nd supervision over
it on her behalf is significant, for it leads to the unavoidable inference that
his control and supervision embr aces not only who resides on the
property, but what activities are c onducted on them. Henry Parker’s
presence on the property as a resident , his family relationship with the
owner, the supervision he exercises on her behalf, and his oversight over
the premises establishes a feature that was found lacking in the particular
circumstances of the Cook Properties hotel – central organisational
36
control of the premises and what was happening on them. This in turn
reveals the instrumental relation of the property to the dealing.
[42] For it is from the control that wa s exercised over the premises that
the import of the sustained drug dealing conducted from the property
must be gauged. The repeated drug sa les were not incidental occurrences
that happened to take place there. The element of personal supervision
and control leads to the inference that the trade in drugs was associated
with the property itself in that its lo cation and existence enabled them to
occur. The brazen dealing in othe r words represents a pattern of
sustained activity that reveals the use to which the premises were put and
their instrumental character in the crimes committed there.
[43] To return to the notion of a ‘drug shop’. A ‘shop’ is a building or
part of a building where goods or se rvices are sold (Concise Oxford
Dictionary). It is a place that is used to conduct trade. Given the
personal control and supervision exercised over these premises, the extent
and openness of the deali ng show that the property itself was used to
37
conduct a trade in drugs. The permissive relation between the
controlling resident and the dealing conducted from the premises shows
that they were utilised as a place of trade. The deals were in other words
so extensive and so connected with the occupation of and control over the
premises that they establish the char acter of the premises as a criminal
instrumentality.
[44] The fact that no drugs were f ound on the premises the police
attribute to the juxtaposition of th e vacant municipal stand next door,
which the dealers calculatedly used to store their stock. The entrapment
evidence shows that on the overwhelm ing majority of occasions the
dealer would move from the property to the adjacent stand, where the
drugs were procured (apparently from a car wreck or a shack). Police
later found drugs stored in quantity th ere. This does not detract from the
character of the property as a place of trade. To operate a trading
business it is not necessary to keep stock on site.
38
[45] I would add that the fact that th e property was widely reputed to
be a drug outlet does not in my view add to its character as a criminal
instrumentality. It is true that th e property’s reputation as a known drug
outlet led directly to the commissi on of offences there, since the
reputation drew purchasers to the locati on. But that is the point: they
were drawn by the reputation, not by anything in the character of the
premises. Here the house boat case, alluded to in Cook Properties (para
34), is different, since it was the character of the premises, as conveyed to
the victims, that lured them there as sexual prey.
[46] I therefore agree that the NDPP es tablished that the property was a
criminal instrumentality and with the order proposed.
E CAMERON
JUDGE OF APPEAL
CONCUR:
HOWIE P
MLAMBO JA
COMBRINCK AJA
NKABINDE AJA