About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2012
>>
[2012] ZACC 12
|
|
Van der Burg and Another v National Director of Public Prosecutions (CCT 75/11) [2012] ZACC 12; 2012 (2) SACR 331 (CC); 2012 (8) BCLR 881 (CC) (12 June 2012)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 75/11
[2012] ZACC 12
In the matter between:
HILDA VAN DER BURG
….......................................................................
First
Applicant
EDWARD VAN DER BURG
…..............................................................
Second
Applicant
and
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
…..........................
Respondent
together with
CENTRE FOR CHILD LAW
…...................................................................
Amicus
Curiae
Heard on : 8 March 2012
Decided on : 12 June 2012
JUDGMENT
VAN DER WESTHUIZEN J (Mogoeng CJ, Yacoob ADCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Maya AJ, Nkabinde J, Skweyiya J and
Zondo AJ
concurring):
Introduction
In
this matter the constitutional imperative of law enforcement and
combating crime,
1
as given effect to in the forfeiture provisions of the Prevention
of Organised Crime Act
2
(POCA), must be balanced against the constitutional guarantee
against the arbitrary deprivation of property.
3
The best interests of children who may be affected by forfeiture,
or by the criminal environment giving rise to it, must also
be
considered.
It is an application for leave to appeal against a judgment of the
Full Court of the Western Cape High Court,
4
which dismissed an appeal challenging an order under POCA granting
the forfeiture of the residential property of the first
and second
applicants. The applicants want the forfeiture order to be set
aside. They argue that this Court should condone
the late lodging
of their application for leave to appeal, grant leave to appeal and
hold that the forfeiture provisions of
POCA do not apply to this
case and that forfeiture is disproportionate in the circumstances.
The respondent, the National Director
of Public Prosecutions
(NDPP), requests the dismissal of the application for leave to
appeal for lack of reasonable prospects
of success, alternatively,
that the appeal be dismissed.
The
Centre for Child Law was admitted as amicus curiae. The amicus
contends that the Constitution obliges a court to consider
the best
interests of the applicants’ children before a final
determination can be made on the forfeiture.
5
Thus the amicus requests the Court to appoint a curator ad litem to
prepare a report concerning the impact the forfeiture would
have on
the applicants’ children.
The
questions to be determined are whether―
the
forfeiture provisions of POCA apply to this case and in particular
to the criminal offence committed here;
the
forfeiture of the applicants’ property would be proportionate
or disproportionate in the circumstances; and
the
Constitution requires this Court to appoint a curator ad litem to
represent the interests of the children by filing a report
to be
taken into account in deciding the merits of the forfeiture order,
or to take alternative measures to ensure that the
best interests
of the children are duly considered under the circumstances.
Factual and litigation background
A
fairly detailed account of the factual and litigation history of
this matter is relevant to the determination of the issues.
The
applicants are a married couple with four children, three of whom
are minors.
6
They are registered owners of property they bought in November 2000
for R169 000.00. A mortgage bond for R135 000.00
was
registered against the property in favour of Standard Bank of South
Africa. The market value of the property at the time
of the
forfeiture application in 2006 was approximately R350 000.00.
In the same year Standard Bank obtained judgment
against the
applicants for payment of the amount of R139 538.43 plus interest
and an order declaring the property specially
executable.
The
property is situated at 25A Birdwood Street, Athlone, a residential
area in Cape Town. The building on the property –
a
semi-detached house – consists of an open-plan kitchen and
living area, three bedrooms, a bathroom and passage. A wooden
and
galvanised structure is attached to the right side of the house.
The applicants have been illegally running a shebeen
7
from the property for years. Liquor is ordered from and served in
the main house and the wooden structure is used as a service,
sale
and consumption area in the shebeen operation.
8
Police investigations on the property have revealed that the main
house, including its bedrooms and passage, is also used extensively
to store liquor. Indeed, it appears that a great deal of the
property is used for illegal shebeen activity.
St.
Raphael’s Primary School is about 30 metres from the
property. The entrance to the school is directly in line of sight
of the property. Next to the school, approximately 100 metres from
the house, is St. Mary’s Roman Catholic Church. About
900
metres from the property, also in Birdwood Street, is the Star High
School, whose learners use Birdwood Street to get to
the railway
station and thus have to pass the property.
Four
licensed liquor outlets exist within a radius of 400 metres of the
property. One of these has a bottle store licence and
the other
three liquor licences permitting liquor consumption on the
premises.
The
applicants unsuccessfully applied for a liquor licence in February
2002. It is not in dispute that the shebeen has been
operating
unlawfully from the property. In the Full Court decision it is
stated that the applicants have carried on their illegal
conduct
since 2000, when they bought the home.
9
The
money made by the applicants from trading liquor illegally is not
their only income. It would appear from the evidence that
the
applicants have earned at least R6 000.00 per month from two
fruit and vegetable stalls.
10
Neighbours
have repeatedly complained about the effects of the shebeen on
their children and neighbourhood. An immediate neighbour
has
written over 50 letters to various government departments in an
attempt to bring an end to the unlawful selling of liquor
from the
property. She has described how people enter the premises
throughout the day and night and leave with liquor purchased
there.
Patrons sit and drink in the carport and in the backyard, on
benches specifically put up for them. On many occasions
minors buy
liquor and drink it on the premises. The shebeen generates
undesirable noise. Physical fights break out regularly
between the
patrons; the applicants often join the fracas. Extremely vulgar and
abusive language is commonplace. Some of the
patrons become so
drunk that they collapse on the road on either Birdwood Street or
Carrington Street (the street that runs
perpendicularly off
Birdwood Street). Patrons hurl bottles at one another, as well as
against the walls surrounding the neighbours’
properties.
They urinate in full view of the public, in the yard of the
premises, on the street and against the boundary wall
and they
trespass on the neighbour’s property in order to gain access
to the shebeen.
There
have been more than 50 police actions on the property, including 18
arrests. The applicants have themselves been arrested.
11
In two of the cases in which arrests were made, the charges were
withdrawn, while admission of guilt fines were paid in the
other
16. In each instance there was no dispute that liquor was being
unlawfully sold on the property. The police gave oral
12
and written
13
warnings to the applicants on numerous occasions to cease the
unlawful selling of liquor. In addition to these arrests and
warnings, the police have seized vast amounts of liquor from the
premises, on various occasions.
14
These
police interventions have not stopped the criminal activity, which
continues day and night. It seems to be a large operation.
The
applicants have “runners” who do much of the wo
rk
for them. They seem to persist in the unlawful conduct because of
its profitability. Indeed, the police decided―
“
due
to lack of resources, to stop with further search and seizure
operations at the property as conventional law enforcement
strategies failed to have any effect on the [applicants].”
15
As a
result of these unsuccessful efforts the NDPP launched an
application for a preservation order in respect of the property.
A
provisional preservation order was granted in June 2006 and the
order was made final in October of that year. Despite the
preservation order, the applicants continued unabated with the
unlawful activity.
In January 2007 the NDPP applied to the High Court for a forfeiture
order against the property in terms of section 50(1)(a)
of POCA.
16
On 22 December 2008 Gassner AJ
17
granted the order after finding that the property was instrumental
to the commission of the crime of selling liquor without
a licence
and that forfeiture would be proportionate in the circumstances.
18
The
applicants appealed to the Full Court and argued that illegally
selling liquor is not an offence in terms of Chapter 6 of
POCA,
19
as POCA only relates to “organised crime offences” and
not to criminal activity by individuals. They argued that
the
property therefore could not be an instrumentality of an offence as
envisaged by POCA. They also contended that the forfeiture
of the
property is manifestly disproportionate to the offence they
committed.
20
On
16 March 2011 the Full Court dismissed the applicants’
appeal. It held that the offence fell squarely within the ambit
of
POCA, that the property was a direct “instrumentality of an
offence” within the meaning of section 1 of POCA
21
and that the forfeiture was not disproportionate. The applicants
sought leave to appeal to the Supreme Court of Appeal. On
30 June
2011 their application was dismissed with costs.
The
applicants ask this Court for leave to appeal against the Full
Court decision. They submit that the interpretation of POCA
is a
constitutional issue and that this Court has recognised that
forfeiture affects constitutional rights.
Constitutional and statutory framework
The
general objectives of POCA – according to its long title –
are to combat organised crime, money laundering and
criminal gang
activities, to ensure recovery of the proceeds of unlawful activity
and to provide for the civil forfeiture of
criminal property that
has been used to commit an offence.
22
The forfeiture provisions in Part 3 of Chapter 6 of POCA lie at the
heart of this dispute. Section 50(1)(a) states:
“
The
High Court shall, subject to section 52, make an order applied for
under section 48(1) if the Court finds on a balance of
probabilities
that the property concerned is an instrumentality of an offence
referred to in Schedule 1”.
An
“instrumentality of an offence” is defined in section 1
of POCA as—
“
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”.
Section
48(1) of POCA empowers the NDPP to apply to a High Court for a
forfeiture order, where there is a preservation order
already in
force over the property sought to be forfeited.
23
This is so in this case.
Schedule 1 lists a number of offences for which forfeiture would be
a competent consequence. These include “any offence
the
punishment wherefore may be a period of imprisonment exceeding one
year without the option of a fine”, in Item 33.
The offence in this case, which has repeatedly resulted in police
action, is the selling of liquor without a license, criminalised
by
the Liquor Act.
24
Section 163(1)(a) determines its penal sanction:
“
Any
person who is guilty of an offence in terms of this Act, shall on
conviction be liable in the case of an offence referred
to in
section 154(1)(a) or (i) or 159(a), (b), (fA) or (i), to a fine or
to imprisonment for a period of not more than five years”.
The Constitution recognises the right not to be arbitrarily
deprived of one’s property.
25
This Court and the Supreme Court of Appeal have recognised that in
the consideration of forfeiture under POCA, a proportionality
enquiry has to be done, based on this right. In
Mohunram v
National Director of Public Prosecutions
26
Van Heerden AJ held that “the purpose of the proportionality
enquiry is to determine whether the grant of a forfeiture
order
would amount to an arbitrary deprivation of property in
contravention of section 25(1) of the Constitution.”
27
In the same case, Moseneke DCJ stated that:
“
[Courts]
have correctly held all requests by State prosecutors for civil
forfeiture to the standard of proportionality which amounts
to no
more than that the forfeiture should not constitute arbitrary
deprivation of property or the kind of punishment not permitted
by
section 12(1)(e) of the Constitution.”
28
(Footnote
omitted.)
The
applicants also rely on the constitutional recognition of the right
of access to adequate housing,
29
as well as the right not to be evicted from one’s home
without a court order, after a consideration of all the relevant
circumstances, recognised in the Constitution
30
and in the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act
31
(PIE). The applicants argue that this Court must not merely
consider the effect of forfeiture as a factor in assessing
proportionality.
It must approach the forfeiture as if it were an
eviction and consider all relevant circumstances, including the
rights and
needs of the elderly, children and others, when deciding
whether to grant the eviction order, as required by section 4(6) or
(7) of PIE.
The amicus’ contention – that the forfeiture should not
be granted until and unless a curator ad litem has been
appointed
to represent the children’s interests – is based on
section 28(2) of the Constitution. This provision
states that “[a]
child’s best interests are of paramount importance in every
matter concerning the child.”
The amicus also stresses the
children’s rights to family or parental care and to basic
shelter.
32
In this case, some of the provisions of the Children’s Act
33
may assist to protect the interests of the applicants’
children. Section 47(1) of this Act, which refers to the procedures
in Chapter 9 of the Act, provides:
“
If it
appears to any court in the course of proceedings that a child
involved in or affected by those proceedings is in need of
care and
protection as is contemplated in section 150,
34
the
court must order that the question whether the child is in need of
care and protection be referred to a designated social
worker for an
investigation contemplated in section 155(2).” (Footnote
added.)
Other provisions of the Act set out the procedures to be followed.
35
Condonation
Before
the questions central to this application are addressed, two
preliminary issues need to be resolved. The first is whether
condonation should be granted for the late filing of the
application for leave to appeal. The application should have been
filed by 21 July 2011, but was filed on 25 July. The application
was however served on the NDPP within time. The applicants
explain
that they lacked the financial resources to launch the application
timeously and required time to borrow money from
various sources.
It seems that no prejudice was suffered as a result of the delay.
The NDPP does not oppose condonation. It
is in the interests of
justice to grant condonation.
Leave to appeal
The second preliminary issue is whether leave to appeal should be
granted. It is in the interests of justice to grant leave,
because
the determination of the issues at stake will impact on the
constitutional rights mentioned
36
and especially on the best interests of the child. It cannot be
said that the application bears no prospects of success.
Are POCA’s forfeiture provisions applicable?
In
deciding whether forfeiture should be granted under section
50(1)(a) of POCA, the threshold question is whether the property
concerned constitutes an instrumentality of an offence referred to
in Schedule 1.
37
Before this Court the parties do not dispute that the property is
indeed the instrumentality of an offence: selling liquor
without a
license under section 154(1)(a) of the Liquor Act.
38
Two
questions then need to be answered. One concerns the applicability
of POCA’s forfeiture provisions to an offence not
created by
POCA itself; and the other the interpretation of Item 33 of
Schedule 1 of POCA.
39
On
the first, it must be determined whether section 50(1)(a)
40
should be interpreted to require that the relevant offence is
indeed one covered by POCA, even though this is not expressly
stated in the section or in Schedule 1. In
Mohunram
, which
concerned illegal gambling that occurred on the premises of a glass
and aluminium business, the amicus – although
it did not
contest the constitutional validity of section 50(1)(a) –
advanced precisely this:
“
[B]efore
the instrumentalities of wrongdoing can be declared forfeit, the act
or omission must be ‘an organised crime offence’
as
contemplated in POCA and,
in
addition
,
the ‘offence’ must be one referred to in Schedule 1.
Thus, the reference to Schedule 1 simply limits the ambit of
the
offences under POCA that can provide the basis for the grant of the
forfeiture order.
. . .
[The amicus] . . . contended
that there is no denying that the Legislature intended the
forfeiture to be obligatory once the requirements
of section 50 were
satisfied. Parliament could never have harboured such an intention,
the [amicus] submitted, unless it envisaged
that the only offences
for which an order of forfeiture based on instrumentality would be
competent would be those offences created
by POCA itself.”
41
Three
judgments were given in
Mohunram
. Van Heerden AJ rejected
the amicus’ argument and found that the forfeiture provisions
did apply to the offence in that
case.
42
Firstly, she relied on an amendment to POCA
43
which was enacted to make it clear that the provisions of Chapters
3, 5 and 6 are applicable in respect of instrumentalities
of
offences and proceeds of unlawful activities that occurred before
the commencement of POCA.
44
Therefore, because POCA as amended makes it clear that it applies
to offences committed before and after its commencement,
it “has
a wider ambit than that of offences that were ‘created’
by POCA, and which thus only existed from
its date of
commencement”.
45
Secondly,
she relied on the Supreme Court of Appeal decisions in
National
Director of Public Prosecutions v Van Staden
(which held that
the provisions of POCA are “designed to reach far beyond
organised crime and apply also to cases of
individual wrongdoing”)
46
and
National Director of Public Prosecutions v Cook Properties
(which held that POCA “is designed to reach far beyond
‘organised crime, money laundering and criminal gang
activities’”).
47
She concluded that the wording of POCA as a whole makes it clear
that its ambit is not limited to so-called “organised
crime
offences”.
48
Moseneke
DCJ and Sachs J, with majority support,
49
left the question open. Moseneke DCJ did so for three main reasons.
Firstly, the conclusion he reached on the proportionality
enquiry
did not compel a decision on the point.
50
Secondly, the issue was not properly before the Court.
51
Lastly, he held that the argument amounted to an impermissible
collateral challenge to the constitutional validity of section
50(1)(a).
52
Sachs
J remarked that “no bright lines can be drawn between
organised crime and private criminal activities”,
53
but agreed that the matter was not properly before the Court.
54
He accordingly dealt with the factors raised unsuccessfully by Mr
Mohunram in an attempt to exempt the property from forfeiture,
within the proportionality enquiry,
55
and assumed for the purposes of the judgment that “there is
no obligatory jurisdictional requirement that the instrument
of an
offence be shown to have a connection with organised crime”.
56
In
the current matter no constitutional attack – for example
based on over-breadth – was levelled against section
50(1)(a)
or any other provision of Chapter 6 of POCA. Moreover, unlike in
Mohunram
, no alternate construction of section 50(1)(a) was
advanced by any of the parties. To hold that section 50(1)(a) has
the additional
requirement that the crime is one specifically
covered by POCA would probably require a declaration of invalidity
or a reading-down
of the legislation. A decision on the
constitutional validity of the provision is not called for in this
case. Therefore, although
POCA does not explicitly identify the
unlawful activity or offence at issue in this matter, the facial
language of the statute,
as well as its aims, suggest that its
forfeiture provisions do apply to the property at which the
unlawful selling of liquor
occurs.
Relying
on decisions of this Court and the Supreme Court of Appeal, the
applicants further submit that
the
provisions of Chapter 6 of POCA are not applicable to this case
because they―
do
not form part of the ordinary strategies of law enforcement
57
and can only be used when the ordinary penalties are inadequate or
inappropriate to address crime;
58
are
intended to remove the incentive for crime
59
and are not punitive in nature even though their effects are;
60
and
are
not applicable when the offence, as is the case with selling liquor
without a licence, presents no difficulties to detect
and prosecute
and does not exhibit the same challenges ordinarily associated with
the combat of organised crime.
61
In
line with Sachs J’s reasoning above,
62
these are factors that are taken into account as part of the
proportionality analysis and not when deciding, as a matter of
principle, whether POCA’s forfeiture provisions are
applicable in a particular case. The proportionality issue is dealt
with below.
I
therefore conclude that the forfeiture provisions of POCA are
applicable to this case.
The
next question relates to the interpretation of Item 33. As
indicated earlier, the offence attracts a sentence of “a
fine
or . . . imprisonment for a period of not more than five years”.
63
The question is whether this penalty is covered by Item 33, which
mentions “any offence the punishment wherefore may
be a
period of imprisonment exceeding one year without the option of a
fine”.
64
In
their written submissions the applicants contend that the offence
of illegal dealing in liquor is not an offence referred
to in Item
33. Their counsel did not pursue this in oral argument. The points
raised in writing are therefore dealt with briefly.
Firstly,
the applicants submit that because the Liquor Act permits the court
to impose a fine, the offence does not fall within
the ambit of
Item 33. They argue that a construction of Item 33 covering a
legislative penalty that permits the court to impose
a fine,
renders the phrase “without the option of a fine”
redundant and would moreover render Items 1 to 32 of
Schedule 1
redundant. This they argue would violate the presumption against
legislative superfluity.
This
argument is unpersuasive. POCA clearly distinguishes penalty
clauses that empower a court to impose either a fine or
imprisonment without the option of a fine, on the one hand, from
those which impose a fine
and in default of payment thereof
a period of imprisonment, on the other. In the latter instances it
is only once the fine goes unpaid that a sentence of imprisonment
is triggered. Item 33 does not apply to the many statutes in the
last-mentioned category, but it does to the first.
Secondly,
the applicants argue that Item 33 applies only where there is a
mandatory sentence of imprisonment for a year or more
and where the
court is precluded from imposing a fine. This interpretation would
require reading the word “may”
in Item 33 as “must”,
which is plainly unconvincing as it is inconsistent with the clear
words of the statute.
A sentence of imprisonment for more than one
year without the option of a fine is competent, not mandatory.
65
This is supported by the Supreme Court of Appeal holding in
Van
Staden
that a section of the National Road Traffic Act,
66
which provides that a person who is convicted of driving under the
influence of intoxicating liquor is liable to “a fine
or to
imprisonment for a period not exceeding six years”,
67
fell within the ambit of Item 33.
68
I agree. Section 163(1)(a) of the Liquor Act is manifestly similar.
Thirdly,
the applicants contend that the provisions of POCA are draconian
and should be limited to property used in the commission
of
extremely serious offences. The NDPP retorts that Schedule 1 of
POCA is intended to cast the net “fairly widely”,
to
include all offences which may result in a sentence of imprisonment
for more than a year, without the option of a fine.
In
National
Director of Public Prosecutions v Vermaak
Nugent JA remarked:
“
[I]t
is now well established, and was repeated in
Van
Staden
,
that an order for forfeiture may be made only if the deprivation in
a particular case is proportionate to the ends at which
the
legislation is aimed, and distinctions between different classes of
offence will feature heavily in that part of the enquiry.
I might
add that I also think it is far more productive to make those
distinctions at that stage of the enquiry, when broadly
framed
distinctions will suffice, than at the jurisdictional stage, when
distinctions need necessarily to be precisely defined
and have the
real potential to produce anomalies. No doubt that is why, as has
already been found, the legislature did not contemplate
classes of
offences being distinguished at the jurisdictional stage.”
69
POCA
enables a court to consider variations in the seriousness of the
offence committed, on the one hand, and the manner and
circumstances in which it was committed, on the other, especially
given that the former often depends on the latter. This does
not
mean that the forfeiture provisions of POCA may not be applied to
offences that are not regarded as extremely serious.
It is indeed
the purpose of the proportionality enquiry to avoid arbitrary
deprivation of property and to ameliorate the potentially
unjust
consequences that could follow if the forfeiture is grossly
disproportional to the offence.
In
conclusion, under section 163(1)(a) of the Liquor Act a person who
is convicted of contravening section 154(1)(a) is liable
to a fine,
or to imprisonment for a period of not more than five years. The
sentence a court may impose is either a fine, or
imprisonment for
up to five years without the option of a fine. A period of
imprisonment exceeding one year without the option
of a fine is a
penalty a court can impose. This fits squarely within the ambit of
Item 33.
Proportionality
Three
aspects, raised by the applicants, are considered under this
heading. First, were the forfeiture provisions used abusively
or to
“top up” the ordinary criminal law enforcement
mechanisms and penalties contrary to the rationale and objectives
of POCA?
70
Linked to this question is the seriousness of the forfeiture
measured against the seriousness of the offence. Third, what is
the
relevance of the possible homelessness of the applicants and their
children and of section 26 of the Constitution –
and PIE,
prohibiting illegal evictions – to determining the
proportionality of the forfeiture?
On
the first aspect, the facts of this case show that the forfeiture
provisions were not used whimsically (or as a “top
up”)
to punish the applicants for activities which the ordinary criminal
law mechanisms were readily capable of curtailing.
The evidence of
all the arrests, admissions of guilt, seizures of liquor and
preservation order do not show a failure to employ
ordinary
criminal law instruments, but rather that the continuation of the
criminal conduct was more profitable, even with
the sanctions
imposed, than ceasing to engage in criminal conduct. In other
words, “crime pays”. The forfeiture
was sought as a
last resort to put an end to the criminality by removing the main
instrument used in its commission.
71
This is not an abuse of POCA or the criminal justice system and
does not offend the Constitution.
As
to the seriousness of forfeiture weighed against the seriousness of
selling liquor without a licence, the applicants’
reliance
upon
Van Staden
is not convincing. In that case it was
stated:
“
It
must be borne in mind that drunken driving, which does not
ordinarily result from organised illicit activity, and presents
no
special difficulties to detect and prosecute, can attract
substantial penalties, and the ordinary criminal law ought to be
the
first port of call to combat the evil. For the Act exists to
supplement criminal remedies in appropriate cases and not merely
as
a more convenient substitute.”
72
The
“ordinary criminal law” was indeed the first port of
call in this case, but has failed to deal with the evil.
The patent
and ongoing harm caused by the unlawful conduct requires
alternative measures, even if harsh, to bring the unlawful
activity
to an end. The property plays a major role in the ongoing
commission of the offence.
In
Mohunram
this Court endorsed the view that, where the
relationship between the illegal activity and the primary
objectives of POCA is
proximate, the court should more readily
grant a forfeiture order than in cases where the same relationship
is tenuous.
73
In
Vermaak
the Supreme Court of Appeal opined that the more
the offence is committed in the course of a broad and protracted
enterprise
of criminal activity, the more appropriate a forfeiture
order would be.
74
The
facts of this case show that the applicants have used the property
for their business of crime for more than six years.
Conventional
law enforcement strategies including almost 60 instances of police
action have failed to deter them. The same
applies to the
preservation order. The forfeiture is aimed at crippling or
terminating the criminal activity, not at achieving
a punitive
consequence. It is a good example of what forfeiture in POCA is
aimed at achieving by targeting the instrumentality
of crime.
Selling
liquor without a license is not necessarily organised crime, or
generally regarded as a crime as serious as murder or
rape or the
theft of millions. However, the manner in which it has been
committed, coupled with the patent harm that its commission
is
causing, must result in a conclusion that forfeiture is
proportionate and appropriate in this case. The applicants conduct
their illegal activity with barefaced disregard for the law. In
fact, the applicants’ counsel contended on their behalf
that
the forfeiture would be pointless since they would simply re-open
their shebeen elsewhere. The countless difficulties
that the police
have experienced in stopping their criminal conduct seem to give
them impetus to persist. Their use of “runners”
to
carry out the illegal activity from the property on their behalf
indicates the extent to which the conduct is part of a
co-ordinated
business to profit from criminal activity. This is precisely what
POCA targets.
75
The
negative consequences of selling liquor illegally might not be the
same as those of selling drugs like “tik”
in
Prophet
v National Director of Public Prosecutions
,
76
but very significant harm is being caused by the applicants’
conduct. This is clear from the response of neighbours and
the
proximity of schools.
77
As
to the third of the abovementioned aspects of the proportionality
analysis, the applicants submit that forfeiture would leave
them
and their children homeless. The proportionality requirement is
aimed, on the one hand, at balancing the constitutional
imperative
of law enforcement and combating crime and the seriousness of the
offence against, on the other, the right not to
be deprived
arbitrarily of property. But the possible homelessness of the
applicants and their children is a relevant factor
which may not be
overlooked.
78
For the purposes of forfeiture, it makes a difference whether the
property instrumental in crime is for example an uninhabited
factory building, or a home.
The
immediate question is of course whether the applicants and their
children will indeed be rendered homeless upon forfeiture
of the
property. The applicants’ bald allegation of homelessness
does not seem to be borne out by the facts. As found
by the Full
Court, the applicants have not shown that their monthly income is
insufficient to lease another home while supporting
their children.
In any event, the possibility of losing a home is certainly a
consequence worth considering when one persistently
uses it for a
criminal business venture.
The
applicants submit that the requirements for eviction under PIE
79
– which give effect to section 26(3)
80
of the Constitution – must be considered within the
proportionality enquiry under POCA. If the eviction is not just and
equitable, forfeiture will not achieve its purpose as the
applicants will be able to carry on with their unlawful activity
from the property, they argue. This argument is not convincing.
Forfeiture under POCA does not necessarily result in eviction.
PIE’s protection ensures that eviction may only be ordered
when it is just and equitable to do so, after a consideration
of
all the relevant circumstances. The trigger for eviction under PIE
is unlawful occupation. Once a forfeiture order is granted,
the
occupation may well become unlawful. But an enquiry under PIE still
has to take place, if and when an eviction order is
sought. The
forfeiture enquiry should not anticipate the eviction one; they are
separate and governed by two different statutes.
All the factors
relevant to the question whether eviction would be just and
equitable under PIE must be considered when a decision
on eviction
has to be taken. A decision on eviction under PIE is not the same
as a decision on forfeiture under POCA.
The
Full Court’s finding on proportionality cannot be faulted.
Forfeiture is not disproportionate in the circumstances
of this
case.
The children
Section
28(2) of the Constitution states that a child’s best
interests are of paramount importance in every matter concerning
the child. This Court has held that section 28(2), read with
section 28(1), establishes a set of children’s rights that
courts are obliged to enforce.
81
Law enforcement must always be child-sensitive and courts must at
all times show due regard for children’s rights.
82
To the extent that the
applicants’ children may be affected by the forfeiture order,
a court must consider their interests.
Providing guidelines for the
sentencing of a primary caregiver in
M
,
83
it was stated that constitutionally a child cannot be treated as a
mere extension of his or her parents, “umbilically
destined
to sink or swim with them.”
84
Children are vulnerable. Their needs and the impact of social and
economic circumstances on them will differ in degree to those
of
adults and deserve separate and focussed consideration.
The amicus emphasises the
importance of section 28(2) in these proceedings and submits that
when the High Courts granted the
forfeiture order, they failed
adequately to deal with the children’s best interests.
85
Therefore this Court must address the impact of the forfeiture on
the children. We were thus urged to appoint a curator ad
litem to
investigate this and file a report with this Court. Only then can
forfeiture be properly considered. The amicus submits
that we do
not have sufficient information to make a determination regarding
the children’s best interests, because the
children are not
separately represented.
Before the admission of the
amicus the issue of the best interests of their children was not
pertinently raised by the applicants.
During oral argument,
however, the applicants submitted that the NDPP is not an ordinary
litigant; therefore it has positive
obligations to protect and
promote the rights of children, contained in the Bill of Rights.
86
It was argued that the NDPP played an adversarial role against the
children in this matter and thus failed to meet its constitutional
duty. The applicants further argued that it would not be in the
best interests of the children if the family were to become
homeless.
The NDPP argued that in order
to determine whether separate representation – like the
appointment of a curator –
is necessary, one has to be
satisfied that the children have a distinct and discrete right or
interest, separate from the parents.
The NDPP submitted that this
test was met in
M
, because the matter dealt with the issue
of a caregiver losing her liberty by being sentenced to prison and
the right of the
children to parental care. The NDPP submits that
the children’s right to shelter and the applicants’
rights regarding
housing and not to be arbitrarily deprived of
their property are inseparable and indistinguishable in this case;
therefore
they do not need separate representation. According to
the NDPP, the High Court decisions dealt sufficiently with the
children’s
interests and concluded that the children would
not be rendered homeless, because the applicants have sufficient
income to
fund accommodation for themselves and their children.
Following from these
submissions, three questions present themselves: Who should raise
the interests of children who may be
affected in forfeiture
proceedings under POCA – the NDPP as applicant, the parents,
or the court? Should a consideration
of the interests of the
children form part of the proportionality enquiry, as suggested
during argument? Does this case require
the appointment of a
curator to ensure separate representation of the children’s
interests and an assessment of their
situation before a decision
can be reached on the forfeiture?
Who must raise the children’s interests?
Of course it is expected that
parents must invoke the interests of their children in proceedings
like these and it is important
that they do so. But state
institutions bear a responsibility to address this issue, even when
the parents have not raised
it. The High Court is not only the
upper guardian of children, but is also obliged to uphold the
rights and values of the Constitution.
In all matters concerning
children, including applications for the forfeiture of property
which provides a home or shelter
to children, it is the duty of the
court to consider the specific interests of the children. In this,
officers of the court
like the NDPP are expected to assist the
court to the best of their ability with all relevant information at
their disposal.
87
The failure of parents to emphasise the interests of their
children, or the possible manipulation of the children’s
situation to suit the objectives of parents, may not be held
against the children.
How must the children’s interests be considered?
It is necessary to determine
where the consideration of the interests of the children fits into
proceedings like the present
under POCA. Should it be during the
proportionality enquiry, or is a separate further enquiry
necessary? The proportionality
analysis essentially balances the
seriousness of the crime against the loss of the property. The
proportionality requirement
is specifically aimed at ameliorating
the harsh effects that forfeiture may have on the right not to be
deprived arbitrarily
of property, but, as indicated above, the
possibility of homelessness may also be a relevant fact. Therefore
the circumstances
of children in this case necessarily play a role
in the proportionality enquiry.
However, the interests of the
children are also a separate and important consideration and cannot
merely be dealt with as one
of several factors weighed on the
proportionality scale. As is shown below, the interests of the
children may require steps
to be taken independently of the
conclusion reached on forfeiture at the end of the proportionality
enquiry. In my view the
children’s interests require specific
and separate consideration, in addition to the attention they might
get in the
proportionality analysis.
88
Should this Court appoint a curator?
I am
not persuaded by the NDPP’s attempt to distinguish this case
from
M
as far as the discrete or distinct interest test is
concerned. The NDPP’s view that the children’s right to
shelter
and the parents’ rights regarding property and
housing are inseparable and indistinguishable in this case is, in
my view,
too rigid and simplistic. Of course the interests of the
applicants and their children necessarily overlap. But the
children’s
interests may well differ from the parents’
in a case like this. The children primarily need a home, a roof
over their
heads, in addition to parental care. Although they have
a home, a shebeen may not necessarily be the best home for them.
The
parents wish to keep the house, presumably for them and their
children to live in, but certainly also to continue with their
illegal dealing in liquor. There may thus be a significant
difference and even a conflict between the parents’ and the
children’s interests.
The
critical question is rather whether the information before the High
Courts was sufficient to consider the interests of the
children, or
whether the appointment of a curator to present this information is
necessary. In exceptional circumstances –
where there is
insufficient information about the children, or where the
information before the Court leaves some doubt regarding
the
children’s well-being – the Court may need to appoint a
curator to conduct an independent assessment of the
children’s
interests.
In
this case the High Court gave due consideration to the question
whether the forfeiture would result in the family becoming
homeless. The court was satisfied that the applicants and their
children would not be left destitute.
89
The Full Court noted that the applicants never raised the issue
that their children would be rendered homeless if the forfeiture
were granted, but only that it would affect their inheritance. It
also considered the impact of the forfeiture on the children,
found
the applicants to be business-orientated individuals and concluded
that they would not be rendered homeless because they
have the
income from the fruit and vegetable stalls and they could find
alternative accommodation for themselves and their
children.
90
Neither the applicants nor the
amicus could advance hypothetical facts that could conceivably
impact on the forfeiture order.
As far as the possibility of
homelessness resulting from forfeiture is concerned, the High Court
benches dealt with the concerns
about the children adequately. The
information before them was not insufficient for this purpose.
There is no need for the
appointment of a curator in this case.
Enquiry under the Children’s Act
The potential effects of a
forfeiture order on the children are not the only aspect of their
situation that requires the attention
of this Court, though.
Another perhaps more important and urgent concern presents itself.
As stated above, there is a significant
potential tension between
the interests of the children and those of their parents. The
parents’ desire to continue to
deal in liquor illegally from
the property may well conflict with the children’s interest
in residing in a safe and secure
environment where their basic
needs are met. The children have been growing up in a rowdy shebeen
for years and it appears
that this will continue –
ironically, especially if forfeiture is not ordered. What kind of
parental care and shelter
have the children had? One has to take a
serious look at the environment they are exposed to as a result of
ongoing criminal
activity. A house from which a shebeen –
with all the activities referred to in this case – is run
hardly seems
like a proper home in which to raise children. The law
in many cases forbids the admission of children to places where
liquor
is sold and consumed, to protect them from an environment
that could harm them. The facts reported by neighbours and referred
to earlier in this judgment are stark indeed and do not paint a
consoling picture as far as the best interests of the children
are
concerned.
In short, the situation of the
applicants’ children may well require special attention,
besides in the consideration of
the forfeiture order. Chapter 9 of
the Children’s Act, referred to above, assists in this
regard. Section 47(1) enjoins
a court to refer the question whether
a child is in need of care and protection under section 150 to a
designated social worker
for investigation, when it appears to the
court that the child is in need of care and protection.
91
It
appears that the applicants’ children “[live] in or
[are] exposed to circumstances which may seriously harm [their]
physical, mental or social well-being”.
92
They may be in need of care and protection. This Court therefore
has a duty to order an investigation to be undertaken by a
designated social worker to determine the question whether the
applicants’ children are in need of care and protection,
under section 47(1).
Section
155 of Chapter 9 of the Children’s Act sets out the process
to be followed, before and after the Children’s
Court decides
whether a child is in need of care and protection. It starts with
the compilation of the social worker’s
report. If the report
concludes that the child is not in need of care and protection,
then the report is to be submitted to
the Children’s Court
for it to review the reasons for the finding. If the report
concludes that the child is in need
of care and protection, the
child must be brought before that Court, which will make a final
determination.
93
The
children’s best interests would be served best by this Court
setting in motion the Chapter 9 process for a proper
investigation
to be conducted regarding the impact on them of the shebeen
activity in their home. The Children’s Court
is best suited
to make a determination as to the children’s fate, as a
specialist court created for these matters.
Conclusion
It
follows that a case has not been made out to set aside the
forfeiture order. The applicants’ argument that the
forfeiture
provisions of POCA and specifically Item 33 do not apply
to the offence of selling liquor without a license is unconvincing.
The forfeiture is also not disproportionate. The children’s
interests were considered by the High Courts in the granting
of the
forfeiture order. The appeal must fail. But an order in terms of
the Children’s Act must be made to safeguard
the best
interests of the children, given the environment in which they have
been living.
Costs
The
NDPP sought a costs order against the applicants if the appeal were
to fail. However, in view of the general practice in
this Court as
to litigation to vindicate constitutional rights, no costs order is
made.
According
to the applicants, they have no funds and did not have money to
secure counsel to represent them in this application.
This Court
requested the Cape Bar Council to assist the applicants. In
response, three counsel graciously stepped in. The applicants’
attorneys of record also continued to assist them, despite the
drying up of funds. We express our appreciation and gratitude
to
the Cape Bar, counsel and the attorneys for supporting our
constitutional democracy by helping litigants to raise their
rights
for consideration in this Court.
Order
The
following order is made:
Condonation
is granted.
Leave
to appeal is granted.
The
appeal is dismissed.
The
National Director of Public Prosecutions is ordered to engage a
designated social worker as contemplated by the Children’s
Act 38 of 2005 to undertake an investigation as envisaged in
section 47(1) read with section 155(2) of that Act, to determine
whether the first and second applicants’ minor children are
in need of care and protection and to recommend and take
appropriate action, if necessary, in terms of that Act.
There
is no order as to costs.
For
the Applicants: Advocate A Katz SC, Advocate H Slingers and Advocate
M Bishop instructed by Derris Attorneys.
For
the Respondent: Advocate G Budlender SC and Advocate H Cronje
instructed by The State Attorney.
For
the Amicus Curiae: Advocate R Keightley and Advocate A Skelton
instructed by the Centre for Child Law.
1
In
F v Minister of Safety and Security and
Others
[2011] ZACC 37
;
2012 (1) SA 536
(CC);
2012 (3) BCLR 244
(CC) at para 138 Froneman J noted that “[i]t
is accepted in our law that there is a constitutional duty on the
police to
prevent, combat and investigate crime and to protect the
inhabitants of the Republic.” See also
Carmichele
v Minister of Safety and Security
and
Another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10)
BCLR 995
(CC)
. Section 205(3) of the Constitution states:
“
The objects of the police
service are to prevent, combat and investigate crime, to maintain
public order, to protect and secure
the inhabitants of the Republic
and their property, and to uphold and enforce the law.”
2
121
of 1998.
3
See
below n 25 for the wording of section 25(1) of the Constitution.
4
Van
der Burg and Another v National Director of Public Prosecutions
[2011] ZAWCHC 75
(Full Court decision).
5
See
[27] below for the wording of section 28(2) of the Constitution.
6
The
High Court decision below n 17 at para 10, handed down in December
2008, mentioned that all the children were minors. The
applicants’
written submissions before this Court state that three of the four
children are minors. In her answering affidavit
before the High
Court, deposed to in February 2007, the first applicant referred to
her affidavit filed in the proceedings relating
to the preservation
order which was granted in October 2006. At the time the latter
affidavit was drafted the applicants’
children were 5, 7, 10
and 17 years of age, respectively.
7
A
“shebeen” is an unlicensed liquor outlet.
8
In
the Full Court decision above n 4 at para 5, Le Grange J found that
there is a wooden and galvanised structure attached to
the right
side of the house and also that liquor was ordered from and served
in the main house and the wooden structure. In their
founding
affidavit before this Court the applicants submit that the Full
Court took little notice of their submission that the
wooden and
galvanised structure was non-existent by the time the matter went to
trial. In the same affidavit, it is submitted
further that the
storing of liquor in the house no longer took place by the time the
matter went to trial.
9
Above
n 4 at para 8.
10
It
is not entirely clear how much the applicants earn from these
stalls. Before the High Court the applicants, in their answering
affidavit, averred that they earn R500.00 per week per stall from
the rental of their stalls and an additional R500.00 per week
per
stall from their share in the profits generated from the stalls.
This would seem to amount to R8 000.00 per month. The
court
calculated an amount of R6 000.00. In the High Court decision
below n 17, Gassner AJ stated that the applicants make
R500.00 per
week from the rental of the stalls and R500.00 per week per stall
from the profit share. Le Grange J, in the Full
Court decision above
n 4, accepted the R6 000.00 amount. In their founding affidavit
before this Court, the applicants aver
that both lower courts
improperly latched onto these facts, which date back to 2002 and did
not exist when the matter went to
trial. They moreover state that
the lower courts were incorrect to find that they would not be left
destitute and that they could
find alternative accommodation if
their property was forfeited. Also, they aver that because of the
financial difficulty experienced
by the Athlone CBD, their stalls
suffered a “huge financial dip” and that this dip is the
reason they defaulted on
their mortgage bond payments. It seems that
the applicants are approbating and reprobating on this point.
11
Also,
according to the Full Court decision above n 4 at para 38, “an
employee of the [applicants] was brutally murdered
in the house and
both [applicants] were arrested for this crime.”
12
According
to the Full Court decision above n 4 at para 13, an oral warning was
given on 18 April 2002. According to the High Court
decision below n
17 at para 15, oral warnings were issued on 23 November 2002, 1
October 2003, 1 February 2003, 3 July 2003 and
22 February 2004.
13
In
both Full Court and High Court decisions above n 4 at para 13, and
below n 17 at para 15, respectively, it is stated that written
warnings were given on 2 September 2003, 11 November 2003, 18
November 2003, 21 November 2003, 17 December 2003, 6 January 2004,
28 June 2004, 28 June 2005, 8 November 2005 and 1 February 2006.
According to the Full Court decision above n 4 at para 13, written
warnings were also given on 23 April 2002, 1 May 2002, 22 October
2002, 10 January 2003, 23 January 2004, 21 April 2004 and 8
June
2005 and according to the High Court decision below n 17 at para 15,
written warnings were also given on 21 January 2004
and 23 April
2004.
14
According
to the High Court decision below n 17 at para 19, the police seized
liquor at the property on 5 August 2006, 9 August
2006, 28 September
2006 and 21 November 2006.
15
Full
Court decision above n 4 at para 14.
16
See
[20] below for the wording of section 50(1)(a)
.
17
National
Director of Public Prosecutions v Hilda Van der Burg and Another
(CPD) Case No 5597/06, 22 December 2008,
unreported (High Court decision).
18
Id
at paras 29 and 39.
19
See
below [20]-[23] for an explanation of the forfeiture process under
section 50(1)(a) of POCA.
20
Full
Court decision above n 4 at para 17.
21
See
[21] below for the definition of “instrumentality of an
offence”, as defined in section 1.
22
The
long title of POCA states:
“
To introduce measures to combat organised crime,
money laundering and criminal gang activities; to prohibit certain
activities
relating to racketeering activities; to provide for the
prohibition of money laundering and for an obligation to report
certain
information; to criminalise certain activities associated
with gangs; to provide for the recovery of the proceeds of unlawful
activity; for the civil forfeiture of criminal property that has
been used to commit an offence, property that is the proceeds
of
unlawful activity or property that is owned or controlled by, or on
behalf of, an entity involved in terrorist and related
activities;
to provide for the establishment of a Criminal Assets Recovery
Account; to amend the
Drugs and Drug Trafficking Act, 1992
; to amend
the International Co-operation in Criminal Matters Act, 1996; to
repeal the
Proceeds of Crime Act, 1996
; to incorporate the
provisions contained in the
Proceeds of Crime Act, 1996
; and to
provide for matters connected therewith.”
23
Section
48(1)
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.”
24
Section
154(1)(a) of the Liquor Act 27 of 1989 states:
“
Any person who sells any
liquor otherwise than under a licence or an exemption by or under
section 3 or 4 shall be guilty of an
offence.”
25
Section
25(1) of the Constitution states:
“
No one may be deprived of
property except in terms of law of general application, and no law
may permit arbitrary deprivation
of property.”
26
Mohunram
and Another v National Director of Public Prosecutions and Another
(Law Review Project as amicus curiae)
[2007] ZACC 4
;
2007 (4) SA
222
(CC);
2007 (6) BCLR 575
(CC) (
Mohunram
).
27
Id
at paras 56. See also
Mohunram
id at para 130.
28
Id
at para 121. See also
Prophet v National Director of Public
Prosecutions
[2006] ZACC 17
;
2007 (6) SA 169
(CC);
2007 (2) BCLR
140
(CC) (
Prophet
) at para 58;
National Director of Public
Prosecutions v Vermaak
[2008] ZAGPHC 86
;
2008 (1) SACR 157
(SCA) (
Vermaak
)
at para 9;
National Director of Public Prosecutions v Van Staden
and Others
2007 (1) SACR 338
(SCA) (
Van Staden
) at paras
4-6;
Prophet v National Director of Public Prosecutions
2006
(1) SA 38
(SCA) at paras 30 and 37;
National Director of Public
Prosecutions v Mohunram and Others
[2006] ZASCA 12
;
2006 (1) SACR 554
(SCA) at
para 5 and
National Director of Public Prosecutions v R O Cook
Properties (Pty) Ltd; National Director of Public Prosecutions v 37
Gillespie
Street Durban (Pty) Ltd and Another; National Director of
Public Prosecutions v Seevnarayan
2004 (2) SACR 208
(SCA) (
Cook
Properties
) at para 15.
29
Section
26(1) states:
“
Everyone has the right to
have access to adequate housing.”
30
Section
26(3) states:
“
No one may be evicted from
their home, or have their home demolished, without an order of court
made after considering all the
relevant circumstances. No
legislation may permit arbitrary evictions.”
31
19
of 1998. See section 4(6) and (7) of PIE. The text of section 4(7)
is quoted below n 79.
32
Section
28(1) provides, in relevant part:
“
Every
child has the right―
. . .
(b) to family care or parental care, or to appropriate
alternative care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care
services and social services”.
33
38
of 2005.
34
Section
150(1) of the Children’s Act lists certain circumstances
which, if found to inhere in the child’s case, render
the
child in need of care and protection. It states, in relevant part:
“
A child is in need of care
and protection if, the child—
. . .
(f) lives in or is exposed to circumstances which may
seriously harm that child’s physical, mental or social
well-being”.
35
Section
155 explains the procedures to be followed, before and after the
Children’s Court decides either that the child
is or is not in
need of care and protection. Firstly, under section 155(1)—
“
[a] children’s court
must decide the question of whether a child who was the subject of
proceedings in terms of section
47, 151, 152 or 154 is in need of
care and protection.”
Secondly,
in addition to the requirement of reporting the matter to the
relevant provincial department of social development under
section
155(3), section 155(2) provides:
“
Before the child is brought
before the children’s court, a designated social worker must
investigate the matter and within
90 days compile a report in the
prescribed manner on whether the child is in need of care and
protection.”
In
the case that the report concludes that the child is not in need of
care and protection, section 155(4)(a) requires that the
report
indicates the reasons for the conclusion and gets submitted to the
Children’s Court for review. Under section 155(4)(b),
the
report must also indicate recommendatory measures to assist the
family, “where necessary”.
In the case that the report concludes that the child is
in need of care and protection, section 155(5) requires that the
child
be presented before the Children’s Court. Section 155(6)
empowers the Children’s Court to make certain orders while
it
decides whether the child is in need of care and protection. Section
155(7) empowers the Children’s Court to make any
order under
section 156 where it finally decides that the child is in need of
care and protection. Section 155(8) lists the orders
the Children’s
Court is empowered, in certain circumstances, and obliged, in
others, to make once it has decided that the
child is not in need of
care and protection. Under section 155(9) the Children’s Court
must have regard to the report of
the designated social worker when
deciding the question of whether a child is in need of care and
protection.
36
In
Prophet
above n 28 at para 46-7 this Court held that section
39(2) of the Constitution enjoins courts to interpret POCA in light
of section
25 of the Constitution and, as such, constitutes a
constitutional issue.
37
Section
50(1)(a) of POCA, quoted in [20] above. In
Prophet
above n 28
at para 58, Nkabinde J stated:
“
The general approach to
forfeiture
once the
threshold of establishing that the property is an instrumentality of
an offence has been met
is to embark upon a proportionality enquiry”. (Emphasis
added.)
38
Above
n 24.
39
See
Chapters 2, 3 and 4 of POCA, entitled “Offences relating to
racketeering activities”, “Offences relating
to proceeds
of unlawful activities” and “Offences relating to
criminal gang activities”, respectively.
40
See
[20] above for the wording of section 50(1)(a) of POCA.
41
Mohunram
above n 26 at paras 16 and 20.
42
Id
at para 34 where Van Heerden AJ, after her deliberation on this
point, declared:
“
I remain unconvinced by the
[amicus’] contention that Chapter 6 of POCA can reasonably be
interpreted so as to apply only
to so-called ‘organised crime
offences’.”
Langa
CJ, Madala J, Van der Westhuizen J and Yacoob J concurred in the
judgment of Van Heerden AJ.
43
Prevention
of Organised Crime Second Amendment Act 38 of 1999 (Amendment Act).
44
Mohunram
above n 26 at para 21.
45
Id
at para 24.
46
Van
Staden
above n 28 at para 1. (Footnote omitted.)
47
Cook
Properties
above n 28 at para 65.
48
Mohunram
above n 26 at para 25.
49
Mokgoro
J and Nkabinde J concurred in the judgment of Moseneke DCJ and
Kondile AJ and O’Regan J concurred in the judgment
of Sachs J.
50
Mohunram
above n 26 at para 114. Moseneke DCJ concluded that forfeiture would
not be proportionate in the circumstances at para 137.
51
Id
at para 114, Moseneke DCJ stated that:
“
[T]he proper scope of civil
forfeiture in Chapter 6 and particularly the proper scope of section
50(1) and the attitude of the
Supreme Court of Appeal on these
matters were not debated before the High Court or the Supreme Court
of Appeal. They were raised
for the first time in this Court.”
52
Id.
53
Id
at para 140.
54
Id.
He stated that “[n]o challenge was made to [the]
constitutionality [of Chapter 6 of POCA] and we are obliged to apply
the provisions on the assumption that they are constitutional.”
55
Id
at para 141.
56
Id
at para 140.
57
Id
at para 72 where Van Heerden AJ held:
“
There is no justification for
resorting to the remedy of civil forfeiture under POCA as a
substitute
for the effective and resolute enforcement of ‘ordinary’
criminal remedies.”
58
Van
Staden
above n 28 at para 7.
59
National
Director of Public Prosecutions and Another v Mohamed NO and Others
[2002] ZACC 9
;
2002 (4) SA 843
(CC);
2002 (9) BCLR 970
(CC) at para
15.
60
Mohunram
above n 26 at para 42.
61
Van
Staden
above n 28 at para 7.
62
Mohunram
above n 26 at para 141. See [37] above.
63
[24]
above.
64
This
is because the property must be the “instrumentality of an
offence
referred to in Schedule 1
”, under section
50(1)(a) of POCA. (Emphasis added.)
65
This
conclusion is bolstered by the approval in
National Director of
Public Prosecutions v Engels
2005 (3) SA 109
(CPD), at para 33,
of a holding in the unreported judgment of
National Director of
Public Prosecutions v Christopher Patterson and Another
CPD Case
No 12100/99, 24 April 2001, unreported:
“
[T]he pattern to be deduced
from items 1-32 of the Schedule is that the Legislature had not
curtailed the sentence options to
those providing for unsuspended
imprisonment only. This also means, impliedly, that the most severe
offences or sentences are
not limited to (only) unsuspended
imprisonment without the option of a fine. Why then, when
interpreting item 33, should one
hold that in that item, only Acts
not allowing fines to be imposed should be capable of forming a
basis for forfeiture under
POCA?” (Footnote omitted.)
66
93
of 1996.
67
Section
65(1) read with section 89(2).
68
Van
Staden
above n 28 at para 10. See also
Cook Properties
above n 28 at para 42, where the Supreme Court of Appeal held:
“
The NDPP pinned this part of
the forfeiture case to section 20(1) of the Sexual Offences Act. And
keeping a brothel is made an
offence not by section 20(1), but by
section 2. The Act’s Schedule does not specifically mention
section 2. That is a scheduled
offence only through the oblique
route of item 33 (‘any offence the punishment wherefore may be
a period of imprisonment
exceeding one year without the option of a
fine’). Punishment for contravening section 2 is imprisonment
for a period not
exceeding three years with or without a fine not
exceeding R6 000 in addition to such imprisonment. So on this basis
keeping
a brothel does fall within the Schedule.”
69
Vermaak
above n 28 at para 9.
70
In
Mohunram
above n 26 at para 152, Sachs J held:
“
POCA was not adopted with a
view to providing either a substitute for, or a top-up of, ordinary
forms of law enforcement. It has
its own rationale and its own
objectives, which should be jealously guarded.”
In
Van Staden
above n 28 at para 7, Nugent JA opined:
“
Incursions upon conventional
liberties that are justified by the particular difficulties
encountered in the detection and successful
prosecution of organised
crime are not similarly justified in cases of ordinary crime that do
not present those difficulties.
I do not think it is permissible to
look to one threat that the Act aims at combating (the threat posed
by organised crime) in
order to justify its application in relation
to a quite different threat (the threat that is posed, for example,
by drunken driving)
that does not present the same challenges.”
71
The
affidavit of Mr Van Lill, submitted with the papers of the
respondent, explains the three-pronged approach to bringing illegal
shebeens in line with the Liquor Act and the law. The first leg is
to encourage shebeen owners to comply with the law and apply
for
licenses. The second leg (“the co-operative approach”)
is to promote a “culture of compliance” by
shebeen
owners who have not yet brought themselves in line with the Liquor
Act. The third or “hard approach” is reserved,
inter
alia, for shebeens “where there are community complaints about
public disturbances, due to noise levels, loitering,
drunk and
disorderly behaviour, etc. Here the strategy is to conduct focussed
police activity with the main objective of closing
the premises down
permanently.”
72
Van
Staden
above n 28 at para 7 (noted in
Mohunram
above n 26
at para 153).
73
Mohunram
above n 26 at para 145 where Sachs J held that—
“
the closer the criminal
activities are to the primary objectives of POCA, the more readily
should a court grant a forfeiture order.
Conversely, the more remote
the activities are from these objectives, the more compelling must
the circumstances be to make such
an order appropriate.”
Moseneke
DCJ “join[ed] Sachs J in emphasising that the more remote the
offence in issue is to the primary purpose of POCA,
the more likely
it is that forfeiture of the instrumentality of the crime is
disproportionate”, at para 126.
74
Vermaak
above n 28 at paras 11-3.
75
The
preamble to POCA states, for example:
“
AND BEARING IN MIND that it
is usually very difficult to prove the direct involvement of
organised crime leaders in particular
cases, because they do not
perform the actual criminal activities themselves, it is necessary
to criminalise the management of,
and related conduct in connection
with enterprises which are involved in a pattern of racketeering
activity”.
76
See
Prophet
above n 28 at para 68 where Nkabinde J commented:
“
The illicit production and
use of these substances undermines the legitimate economy and
threatens the national stability and
security of the country. In
addition, they pose a serious threat to the health, welfare and
safety of human beings, particularly
young people and children, and
adversely affect the social and economic foundations of our society.
The rapid expansion of drug
markets in small residential
laboratories creates immeasurable social problems. The sexual abuse
of young children, domestic
problems, violence inside and outside of
the home, health and instability in the Western Cape are
attributable in part to the
use of ‘tik’ and the
prevalence of mini-laboratories in residential areas.”
77
See
the High Court decision above n 17 at para 12, where it was observed
that the “Concerned Residents of Athlone also stated
that the
‘neighbourhood experiences problems associated with alcohol
and drug abuse, violence, child and woman abuse’.”
78
In
Prophet
above
n 28 at para 67 Nkabinde J, in the proportionality assessment, took
account of the fact that “[t]he forfeiture will
. . . not
leave [Mr Prophet] destitute because he receives rentals from
immovable property in another area.” (Footnote
omitted.)
79
Section
4(7) of PIE provides:
“
If an unlawful occupier has
occupied the land in question for more than six months at the time
when the proceedings are initiated,
a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do
so, after considering all
the relevant circumstances, including,
except where the land is sold in a sale of execution pursuant to a
mortgage, whether land
has been made available or can reasonably be
made available by a municipality or other organ of state or another
land owner for
the relocation of the unlawful occupier, and
including the rights and needs of the elderly, children, disabled
persons and households
headed by women.”
80
Section
26(3) of the Constitution states that no one may be evicted from
their home without a court order after consideration
of all the
relevant circumstances. See above n 30.
81
S
v M (Centre for Child Law as amicus curiae)
[2007]
ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) (
M
)
at para 14. See also
Minister of
Welfare and Population Development v Fitzpatrick and Others
[2000] ZACC 6
;
2000 (3) SA 422
(CC);
2000 (7)
BCLR 713
(CC) at para 17.
82
M
above n 81 at para 15.
83
I
d
at para 36.
84
Id
at para 18 Sachs J noted:
“
Every child has his or her own dignity. If a
child is to be constitutionally imagined as an individual with a
distinctive personality,
and not merely as a miniature adult waiting
to reach full size, he or she cannot be treated as a mere extension
of his or her
parents, umbilically destined to sink or swim with
them.”
85
See
[27] above for the text of section 28(2) of the Constitution.
86
Section
7(2) of the Constitution.
87
See
M
above n 81 at para 36 where Sachs J held that “[t]he
prosecution should also contribute what information it can; its
normal
adversarial posture should be relaxed when the interests of
children are involved.”
88
See
M
id at para 109, where Madala J held that the sentencing
judicial officer should be guided by the well-known triad of factors
in
Zinn
, namely the crime, the offender and the interests of
society (
S v Zinn
1969 (2) SA 537
(A) at 540G-H) but that the
process does not stop there in a case where a primary caregiver’s
sentence is being considered.
The sentencing officer must go beyond
these factors and also take into account the impact of imprisonment
on the dependants.
89
High
Court decision above n 17 at para 31.
90
Full
Court decision above n 4 at para 37.
91
See
above [28] for the text of section 47(1).
92
As
per section 150(1)(f) of the Children’s Act, above n 34.
93
See
above n 35 for a more detailed explanation of the process from the
time the designated social worker compiles his or her report
to the
time the Children’s Court makes a final determination as to
whether the child is in need of care and protection.