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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A2022/021718
In the matter between:
In the matter between:
ABDIWAHID TIFOW OMAR Appellant
and
NATIONAL DIRECTOR OF PUBLIC PROSECUTION Respondent
This Judgment is handed down electronically by email to the Applicant’s Legal
Representatives and the Respondent, and by publication on CaseLines and Saflii .
The date for the handing down is deemed to be 01 September 2026.
JUDGMENT
MUDAU, J: (MALINDI J AND SUBEL AJ CONCURRING)
Introduction
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
1 September 2026 __________________
DATE SIGNATURE
2
[1] This is an appeal against the forfeiture order granted by this Court on 6 March
2025 in terms of the Prevention of Organised Crime Act 121 of 1998
(“POCA”). The National Director of Public Prosecutions (NDPP) alleged in this
case that the property should be forfeited, and applied ex parte for, and
obtained, an interim preservation order in respect of it as a prelude to
forfeiture proceedings.
[2] In the forfeiture proceedings, the order obtained declared the appellant ’s truck
and trailer instrumentalities of the offence of robbery . It forfeited them to the
State in terms of section 50 (1) (a) of POCA . The property in question is a
2014 white Freightliner Argosy truck with registration number J […] , vehicle
identification number 1[…] , and engine number 7[…] , and a trailer with
registration number D […] (the truck and trailer), all of which belong to the
appellant. The appellant seeks to overturn that order, contending that he is an
innocent owner and that the truck and trailer were not used in the commission
of any Schedule 1 offence.
[2] The central question is whether the truck and trailer were used as
instrumentalities in the commission of an offence referred to in Schedule 1 to
POCA. The respondent pleaded robbery as the relevant offence. Taken
cumulatively, the facts support a finding that the vehicles were
instrumentalities of robbery, which is listed in Schedule 1. The use of the truck
and trailer w as not an afterthought or independent of the (undisputed)
robbery; they were integral to the original, pre- planned execution of the
robbery.
3
[3] The Preamble to POCA provides the legislative context and purpose. It
records, inter alia, that:
“WHEREAS there is a rapid growth of organised crime, money laundering and
criminal gang activities nationally and internationally and since organised crime
has internationally been identified as an international security threat;
AND WHEREAS organised crime, money laundering and criminal gang activities
infringe on the rights of the people as enshrined in the Bill of Rights;
AND WHEREAS it is the right of every person to be protected from fear,
intimidation and physical harm caused by the criminal activities of violent gangs
and individuals;
AND WHEREAS organised crime, money laundering and criminal gang
activities, both individually and collectively, present a danger to public order and
safety and economic stability, and have the potential to inflict social damage;
AND WHEREAS the South African common law and statutory law fail to deal
effectively with organised crime, money laundering and criminal gang activities,
and also fail to keep pace with international measures aimed at dealing
effectively with organised crime, money laundering and criminal gang activities;
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;
AND WHEREAS no person convicted of an offence should benefit from the fruits
of that or any related offence, whether such offence took place before or after the
commencement of this Act, legislation is necessary to provide for a civil remedy
for the restraint and seizure, and confiscation of property which forms the
benefits derived from such offence;
AND WHEREAS no person should benefit from the fruits of unlawful activities,
AND WHEREAS no person should benefit from the fruits of unlawful activities,
nor is any person entitled to use property for the commission of an offence,
whether such activities or offence took place before or after the commencement
of this Act, legislation is necessary to provide for a civil remedy for the
preservation and seizure, and forfeiture of property which is derived from
unlawful activities or is concerned in the commission or suspected commission of
an offence.”
[4] The Preamble underscores the constitutional imperative to combat organised
crime and to ensure that no person benefits from the fruits of unlawful
activities or uses property for the commission of an offence. Forfeiture under
POCA is a civil remedy designed to achieve these objectives. The Act must
be interpreted and applied in a manner that gives effect to its purpose, while
4
respecting the rights of property owners as envisaged in accordance with
section 25 (1) of the Constitution. The focus is on the property itself and its
role in the offence, not merely the moral culpability of its owner.
Condonation
[5] The appellant seeks condonation for a 3- day delay in filing the appeal record.
The delay is minimal, the explanation is reasonable, and the respondent does
not oppose. The issues raised are important, and no prejudice against the
other party has been shown. Condonation is granted.
The statutory framework
[6] Section 50 (1) of POCA provides:
“(1) 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—
(a) is an instrumentality of an offence referred to in Schedule 1; or
(b) ...”
[7] Section 52 (2A) sets out the innocent owner defence. It reads:
“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 or property
associated with terrorist and related activities, 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
Schedule 1; ...”
5
[8] The onus is on the person claiming an interest to prove these elements on a
balance of probabilities. The court must be satisfied that the property was
acquired legally, and that the owner neither knew nor had reasonable grounds
to suspect that the property would be used as an instrumentality of a
Schedule 1 offence.
[9] Schedule 1 to POCA lists a wide range of offences. Items 6 and 17
respectively refer to offences relating to robbery and theft. More broadly,
robbery is a species of theft, aggravated by violence or threats of violence. It
is the violent dispossession of another ’s property with the intention to deprive
it permanently. The offence of robbery is therefore squarely within the ambit of
Schedule 1.
[10] The Preamble reinforces the purpose of the forfeiture provisions. It declares
that “no person should benefit from the fruits of unlawful activities, nor is any
person entitled to use property for the commission of an offence” . The
forfeiture of property used as an instrumentality of an offence is a direct
expression of this principle. The Act is not punitive; it is remedial. Its purpose
is to remove the means and fruits of crime, and to deter the use of property in
criminal activities.
The factual background
[11] The factual details are set out in the founding affidavit of Adv Chuma
Mtengwane, Deputy Director of Public Prosecutions, deposed to on 6
December 2023 in support of the forfeiture application and the appeal record.
The contents of this affidavit are not in serious dispute in this appeal. On 11
6
March 2022, a white MAN truck with registration number H […] and pulling two
trailers belonging to SF Logistics was hijacked along the R21 near Pomona,
Kempton Park, by unknown assailants who were impersonating officers from
the Ekurhuleni Metropolitan Police Department. At the time, the SF Logistics
truck was transporting a consignment of palleted Aquafresh toothpaste valued
at approximately R2,500,000.
[12] The driver, Andile Mzamo, was stopped by individuals dressed in EMPD
uniforms and driving a Volkswagen Polo bearing EMPD insignia. They
approached him, pretending to verify his driving license and the truck's license
disc. He was then accosted at gunpoint and bundled into the backseat of the
Polo. He was taken to a house at an unknown location, where he was forced
to consume alcohol at gunpoint before being released on the side of the road.
This demonstrates the violent and coercive nature of the offence and
underscores that the robbery was not a brief or isolated event, but a
continuing, calculated operation designed to incapacitate the driver and
prevent him from reporting the crime immediately.
[13] On the same day, Mr Suleyman Dickson, a security officer employed at the
warehouse complex at 1[…] A […] Road, later saw the SF Logistics truck enter
the premises. Mr Dickson observed the robbed goods being offloaded from
the SF Logistics truck and placed next to a unit being leased by Abdulahi
Guled Abdi (Guled). After the offloading was completed, the SF Logistics truck
left the premises. Crucially, about 10 minutes later, Mr Dickson observed a
“black Superlink” truck, whose driver was “a Somalian person [who] said he
[was there] to collect his load, ” arrive on the premises. The robbed goods
7
were loaded onto it under Guled’ s supervision, and it thereafter left the
premises with the goods. The proximity in time—a mere 10 minutes —strongly
suggests pre-arrangement and coordination.
[14] On 12 March 2022, Mr Ziad Limbada, a manager at Drink World Cash and
Carry in Crown Mines, Johannesburg, observed “ a white Freightliner truck
with blue curtains ” arrive at the premises with Guled. Guled sold the robbed
goods to Mr Limbada for R1,197,262. The purchase price was paid in
tranches: R350,000, R300,000, and R245,000 on 12 March 2022; and
R252,262 and R50,000 on 14 March 2022. It is common cause that the truck
and trailer were later booked into the police pound at Chamdor.
[15] The appellant admits that he used his truck with a driver to collect and deliver
the goods. His defence is that he was hired by his friend Hassan, did not know
the goods were stolen, and was merely conducting legitimate business.
However, the facts show that the appellant ’s truck and trailer were not
accidentally involved; they were essential to executing the robbers’ plan. The
abandonment of the original hijacked truck confirms that transferring the
goods to the appellant’s vehicle was the intended method of “safely” removing
and disposing of them.
[16] Additionally, the appellant was in constant telephonic communication for well
over an hour as he, on his version, was attending to the truck's tyre before
handing it over to the driver. This prolonged communication at the material
time is telling and supports the inference that the appellant was not a passive,
uninvolved owner but was actively engaged in the operation's logistics.
8
[17] The tracking reports for the SF Logistics truck established that its tracking
device was disabled or its signal interfered with. However, the tracking device
on one of the trailers was active, allowing the movements to be traced to 1[…]
A[…] Road. On 16 March 2022, a security guard at the Crown Mines truck
depot called him and told him that members of the SAPS were searching for
the truck and trailer. He arranged with Hassan to go in his stead. Hassan later
called him and advised that he had been arrested in connection with the stock
that he had hired the truck and trailer to transport, as it was reportedly stolen.
Admissibility of evidence
[18] Before dealing with the substantive issues, it is necessary to address the
appellant’s complaints regarding the admissibility of certain evidence.
[19] In respect of Mr Ahmed’ s statement, the complaint was that it was
inadmissible against Mr Omar because of the exclusion under section 34 (3)
of the Civil Proceedings Evidence Act 25 of 1965 (CPEA). However, an
objective reading of the judgment of the court a quo clearly shows that the
court did not consider Mr Ahmed’ s evidence to be material to the decision.
The court a quo stated in paragraph 58 of its judgment: “ Even with the
exclusion of Ahmed’s evidence...” The appellant’s complaint in this regard is
therefore without merit.
[20] In respect of the statements of Messrs Dickson, Khan, and Limbada, the
complaint was that they were not commissioned, and, as such, they were
inadmissible hearsay evidence. However, a cursory reading of the statements
establishes that they were given under oath.
9
[21] It is trite, as was held in Schimper and Another v Monastery Diamond Mining
Corporation (Pty) Ltd and Another 1 that conditions for admissibility in terms of
section 34 of Act 25 of 1965 are not present if the deponent shows, inter alia,
that he had no personal knowledge as required by s ubsection (1) (a) (i). The
logical converse: admissibility is established (the conditions are present) when
personal knowledge is proven. The gen eral test for the admissibility of
evidence is whether such evidence is relevant and/or material to the
determination of the issues in dispute. In turn, section 34 (1) of the CPEA
provides that statements are admissible as evidence provided that the
deponent has personal knowledge of the contents thereof.
[22] Messrs Dickson, Khan, and Limbada’s statements are based on their personal
knowledge of the events they witnessed. They are relevant and material to
determining whether the truck and trailer were used to commit the robbery.
The complaint that they are inadmissible hearsay evidence is without merit
and falls to be rejected.
[23] The appellant also relies on the alleged dishonesty of Sergeant Matlala. This
argument is overstated. The spoliation court ’s finding concerned a different
truck (registration number T[…] ) and the inadmissibility of video footage, not a
finding of dishonesty. Noko J, in the reconsideration judgment, did not make a
finding that Sergeant Matlala was dishonest. At most, Noko J noted that the
appellant had raised concerns. The court a quo cannot be faulted for not
treating Sergeant Matlala’s evidence as inherently unreliable.
Ground 1: Involvement of the truck and trailer – the instrumentality enquiry
1 1982 (1) SA 612 (O).
10
[24] Section 1 of POCA defines ‘instrumentality of an offence’ 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'. To establish ‘instrumentality’, there must be
a scheduled offence. The test for instrumentality is settled. In National Director
of Public Prosecutions v RO Cook Properties (Pty) Ltd, 2 the Supreme Court of
Appeal held that the property must play a “reasonably direct role” in the
commission of the offence and must “ facilitate or make possible the
commission of the offence” . It must be instrumental in, and not merely
incidental to, the offence. The interpretation is independent of the property
owner's guilt or innocence.
[25] In National Director of Public Prosecutions v Kalmar Industries SA (Pty) Ltd, 3
the SCA emphasised that the focus is on the role the property plays in the
commission of the crime, not on the wrongdoer. There must be a functional
relation between the property and the offence.
[26] In Prophet v National Director of Public Prosecutions ,4 upheld on further
appeal to the Constitutional Court in Prophet v National Director of Public
Prosecutions,5 the following factors were found instructive: ‘ whether the use
was deliberate and planned or merely incidental; whether the property was
important to the success of the offence; the duration and extent of the illegal
use; whether the use was isolated or repeated; and whether the property was
acquired or maintained for the purpose of carrying out the offence.
2 [2004] ZASCA 86 at [31].
3 [2017] ZASCA 142; 2017 (2) SACR 593 (SCA) at [22].
4 2006 (1) SA 38 (SCA) at [27].
5 [2006] ZACC 17; 2007 (2) BCLR 140 (CC); 2006 (2) SACR 525 (CC).
11
Importantly, ‘a court must be able to conclude, after considering the totality of
the circumstances, that the property was a substantial and meaningful
instrumentality in the commission of the offence(s)’.
[27] In National Director of Public Prosecutions v Parker,6 the court held that, when
enquiring whether a property is an instrumentality of an offence, the court
must consider the whole picture and determine, from the totality of the
circumstances of the case, whether the property played a substantial and
meaningful role in the commission of the offence.
[28] Applying these principles to the facts, the evidence establishes that:
a) The truck and trailer arrived at 1[…] A[…] Road within approximately
10 minutes of the hijacked SF Logistics truck leaving. This suggests
pre-arrangement and coordination. The use of the truck and trailer
was pre-arranged when Hassan spoke to the appellant about needing
it to transport the goods. The use was deliberate and planned, not
spontaneous or incidental . It was part of the original robbery scheme
to switch vehicles.
b) The SF Logistics truck was abandoned after the robbery. This clearly
indicates that the robbers never intended to use that truck for the final
transport or disposal of the goods. The appellant's truck was the
designated getaway and transport vehicle from the outset. Without the
appellant's vehicle, the robbery would have been incomplete, and the
goods would have remained vulnerable at 1[…] A[…] Road.
6 [2005] ZASCA 124; [2006] 1 All SA 317 (SCA); 2006 (3) SA 198 (SCA); 2006 (1) SACR 284 (SCA) at [18].
12
c) The goods were bulky (palletised toothpaste) and required a large
transport vehicle. Without the truck and trailer, the perpetrators could
not have removed the goods from the storage location or transported
them to the buyer. The vehicles were essential to the robbery's
success. The theft of the goods via violence would have been
substantially less effective, if not impossible, without the use of such a
vehicle to complete the transportation (carrying away) and disposal.
d) The illegal use extended over two days, including an overnight
parking at City Deep Truck Depot , with the loot from Drinkwater Cash
and Carry being found to have closed on the evening before. The
truck was not used only briefly at the scene; it was integral to the
entire post -taking phase of the robbery. The overnight storage
facilitated the concealment of the goods and reduced the risk of
detection, ensuring the success of the criminal enterprise.
e) T he circumstances of this incident —its planning, execution, and
duration—justify a finding of instrumentality. The use was not an
isolated, incidental act but a central component of the criminal
enterprise.
[29] I am satisfied that the truck and trailer were instrumentalities of the offence of
robbery, as listed in Schedule 1 to POCA. The functional relation between the
vehicles and the robbery is clear. The vehicles made the robbery more
effective and profitable by enabling the perpetrators to take physical control,
13
remove, conceal, and sell the stolen goods. The connection between the
property and the offence is reasonably direct, and the vehicles were
instrumental in committing the robbery . The property owner's guilt or
innocence is irrelevant to this inquiry; the focus is on the property's role.
Ground 2: Whether the robbery was continuing or a continuous transaction
[30] The appellant relies on Olivier and Another v S (Appeal) 7 for the proposition
that robbery is not a continuing offence. In Olivier, the Northern Cape Full
Bench stated: “Robbery, unlike theft, is not a continuing crime. It is complete
once a contrectatio is effected. ” The appellant contends that because the
violence occurred on the R21, the robbery was complete at 1[…] A[…] when
the robbers left the scene at that, and the later use of the truck cannot be part
of the robbery.
[31] I have considered Olivier carefully. That case concerned the alleged
duplication of convictions for counts of robbery and kidnapping arising from an
incident where several violent acts occurred. The court concluded that:
“The robbery was therefore no longer in progress when the appellants, together
with the complainant and one Lerato , drove to a different spot in the veld where
the victims and two of the robbers (including the second appellant) were left.
That at the said scene one of the robbers still had the firearm and the
complainant’s hands and feet were fastened to make sure he was unable to get
away.”8
[32] There, the court held that the robbery was complete once the contrectatio was
effected; however, the fact that the complainant was deprived of his freedom
7 [2024] ZANCHC 60 at [24].
8 Id at [21].
14
of movement after the robbery is a clear indication that a new intent was
formed to continue with the kidnapping and t herefore the appellant was
properly convicted of counts of robbery and kidnapping. The judgment did not
deal with the question of whether a vehicle used during the transportation
phase of the robbery is an instrumentality of that robbery. That case is
distinguishable on its own peculiar facts.
[33] The contrectatio in theft or robbery does not merely mean the initial grabbing
of the property. As our courts have long recognised, the contrectatio includes
the act of transportation—the carrying away of the property. The carrying
away is an integral part of the taking. In this case, the taking was not complete
when the SF Logistics truck was hijacked on the R21. The hijackers merely
obtained de facto control there. Full exercise of control, and the successful
completion of the robbery, required transferring the goods to the robbers'
designated mode of transport and moving them to a place of safety and
disposal (Drinkwater Cash and Carry).
[34] The evidence shows that the truck switch was pre- planned. The appellant ’s
truck arrived within 10 minutes of the departure of the hijacked SF truck. The
original SF truck was abandoned. This demonstrates that the robbers ’ plan
was not merely to take the truck, but rather to seize the specific cargo and
transport it away using a different vehicle. The violence used on the R21 was
the means to seize the property. The subsequent loading onto the appellant ’s
truck and the transport to the buyer was the consummation of the robbery.
The violence and the theft were part of a continuous, unbroken transaction.
15
The theft could only be achieved by the initial use of violence during the
transit.
[35] In S v Yolelo ,9 the court held that robbery requires a close link between the
theft and the violence, so they can be regarded as connected components of
one action. If the violence and the taking are closely connected in time and
place, the offence is robbery. Here, the violence (hijacking at R21), the
kidnapping of the driver and forcing him to drink liquor, the transport to A […]
Road, the immediate loading onto the appellant's truck, and the transport to
the buyer are so closely connected in time and as part of the same plan that
they constitute one continuous action. The violence set the entire chain of
events in motion. The robbery was not complete until the goods were safely in
the buyer’s hands and the proceeds were realised.
[36] In Madlala v S ,10 the court held that robbery continues if the perpetrators
remain in possession of the stolen property. The Constitutional Court
in Prophet also emphasised that a court must consider the "totality of the
circumstances". Considering the totality here—the pre- planning, the 10-
minute interval, the abandonment of the original truck, the overnight storage,
the kidnapping and incapacitation of the driver, and the final sale—the robbery
was a continuing, uninterrupted transaction. The truck and trailer were integral
to that transaction from its inception.
[37] I therefore find that the truck and trailer were used as a part of the process to
commit and perpetuate the robbery. They were not used after the robbery was
9 1981 (1) SA 1002 (A).
10 2015 (2) SACR 247 GJ at [29].
16
complete; they were used to execute the very plan of the robbery —to violently
seize property and transport it to a destination where it could be converted to
cash. The fact that the robbery was meticulously planned and executed in
stages does not sever the link between the violence and the taking; it confirms
the premeditated nature of the crime.
Ground 3: The innocent owner defence under section 52 (2A)
[38] The appellant bears the onus of proving, on a balance of probabilities, that he
acquired the truck and trailer legally, and that he neither knew nor had
reasonable grounds to suspect that they would be used as instrumentalities of
a Schedule 1 offence. Section 52 (2A) sets out the elements of the defence
clearly: the applicant must prove both legal acquisition and the absence of
knowledge or reasonable grounds to suspect. This was not seriously dealt
with in argument, but in the heads of argument.
[39] The appellant’s version is that Hassan, a friend, contacted him and wanted to
hire the truck for R10,000. He sent his driver to collect goods from Hassan
and to deliver them at a particular destination. The driver found the premises
closed and parked the truck overnight at a different location, City Deep .
Delivery was completed the following day. The appellant denies any
knowledge that the hire of his truck was for purposes of transporting the
stolen goods.
[40] The test under section 52 (2A) is objective. In terms of section 1 (3) of POCA,
a person “ ought to have known” if the existence of the relevant fact could
17
easily be ascertained by a reasonably diligent person regarding an offence
referred to in Schedule 1.
[41] Several factors, considered cumulatively, lead to the inference that the
appellant knew or ought reasonably to have known of the purpose for which
the truck and trailer were to be used. First, the appellant is a businessman in
the logistics industry. It is standard practice to know what goods are being
transported, for insurance and liability purposes. He did not enquire about the
nature, quantity, or source of the goods. That is not the conduct of a
reasonably diligent businessman in the ordinary course. A responsible owner
of a commercial vehicle would ordinarily insist on documentation, particularly
for a hire arrangement.
[42] Second, the timing was suspicious. The goods were collected late in the day,
and the driver found the intended destination premises closed. The truck was
parked elsewhere overnight with the goods on board. This is not the normal
course of business for a legitimate logistics operation. A legitimate client
would typically arrange for delivery during business hours and would not leave
goods unattended overnight.
[43] Third, the appellant was in constant telephonic communication for well over
an hour as he, on his version, was attending to the truck ’s tyre before handing
it over to the driver. This prolonged communication at the material time is
telling and supports the inference that the appellant was not a passive,
uninvolved and ignorant owner but was actively engaged in the operation’s
logistics.
18
[44] Fourth, no records were kept of the supposed hire transaction. No invoice,
delivery note, or written contract existed. This is inconsistent with the conduct
of a reasonably diligent businessman. In the logistics industry, documentation
is essential. The absence of any paperwork strongly indicates that the
transaction was (to the appellant’s knowledge) not legitimate.
[45] Fifth, the appellant knew Ahmed, who was directly involved in the robbery.
Ahmed admitted that on 11 March 2022 he was called by the appellant to
bring a mechanic and a tyre to 1 […] A […] Road. The appellant cannot
credibly claim total ignorance of the criminal network. If Ahmed had falsely
implicated Mr Omar, he had every opportunity to claim his innocence by
approaching the SAPS immediately and at Chamdor , as the court a quo
correctly found.
[46] Sixth, the appellant’s conduct in avoiding consultation with the police, when
requested, is telling. He only came forward after a warrant was issued ,
months later. This suggests consciousness of guilt. An innocent person would
typically cooperate with the authorities to clear his/her name.
[47] The court a quo found that the appellant ’s version was “highly improbable”. I
agree. The appellant ’s bare denial is insufficient to discharge the onus. In
Wightman t/a J W Construction v Headfour (Pty) Ltd and Another ,11 the court
held that a party who raises a dispute of fact must do so seriously and
11 [2008] ZASCA 6; 2008 (3) SA 371 (SCA) at [13].
19
unambiguously. The appellant ’s denials are not sufficient to raise a genuine
dispute.
[48] The appellant also relies on the alleged dishonesty of Sergeant Matlala and
Mr Abdul ’s statement. This argument is overstated. The spoliation court ’s
finding concerned a different truck previously owned by the appellant and the
inadmissibility of video footage, not dishonesty. Noko J, in the reconsideration
judgment, did not make a finding that Sergeant Matlala was dishonest. At
most, Noko J noted that the appellant had raised concerns. The court a
quo cannot be faulted for not treating Sergeant Matlala’ s evidence as
inherently unreliable.
[49] I am satisfied that the appellant has failed to establish the innocent owner
defence under section 52 (2A). At best, he ought reasonably to have known
that the truck was being used for criminal purposes. At worst, he knew and
turned a blind eye. In either case, the defence fails.
Proportionality
[50] The appellant argues that forfeiture would be arbitrary and disproportionate,
as the truck is his only means of earning a living. Section 25 of the
Constitution protects against arbitrary deprivation of property.
[51] The proportionality inquiry requires a balancing of the public interest in
forfeiture against the owner ’s right not to be arbitrarily deprived of property.
In Van der B urg and Another v National Director of Public Prosecutions and
20
Another,12 the court held that forfeiture must not be arbitrary or unjust. There
must be a rational connection between the ends sought and the means used.
[52] The Preamble to POCA emphasises the public interest in combating
organised crime and ensuring that no person benefits from the fruits of
unlawful activities or uses property to commit an offence. The Act’s purpose is
primarily deterrent. It seeks to prevent people from using their property to
commit offences.
[53] In Mohunran and Another v National Director of Public Prosecutions and
Another,13 the Constitutional Court held that the closer the criminal activities
are to the primary objectives of POCA, the more readily should a court grant a
forfeiture order.
[54] In this case, the truck was used deliberately and in a planned manner to
transport stolen goods. The truck was essential to the robbery ’s success.
Without it, the perpetrators could not have executed their plan to remove the
goods from the storage location or transport them to the buyer. The public
interest in forfeiture is substantial: it deters owners from allowing their property
to be used for criminal purposes and ensures that crime does not pay.
[55] The Prophet factors weigh in favour of forfeiture. The use was deliberate and
planned, the truck was important to the success of the offense, the use
extended over two days, and the truck was used to carry out the offense.
12 2012 (2) SACR 331 (CC) at [58].
13 CCT 19/06 4 [2007] ZACC 4; 2007 (4) SA 222 (CC); 2007 (6) BCLR 575 (CC) at [146].
21
While there is no evidence of prior use, the circumstances of this case justify
forfeiture.
[56] The fact that the truck is the appellant ’s means of earning a living is relevant .
However, it is not determinative. The appellant ’s failure to exercise
reasonable diligence in stewarding his property weighs heavily against him.
Owners have a duty to exercise responsible stewardship and to prevent their
property from being used for criminal purposes. This duty is implicit in the
Preamble, which declares that no person is entitled to use property for the
commission of an offence.
[57] As the SCA pointed out in RO Cook Properties,14 ‘a criminal conviction is not
a condition precedent to forfeiture, and property may be forfeited even where
no charge is pending… the guilt or wrongdoing of owners or possessors of
property is not primarily relevant to the proceedings.
[58] I am satisfied that the forfeiture order is proportionate and does not constitute
an arbitrary deprivation of property. The balance between the public interest
and the appellant ’s rights tips in favour of forfeiture. The vehicles were
instrumental in a serious, pre- planned robbery, and their forfeiture serves a
legitimate purpose under POCA.
[59] As the Constitutional Court stated in National Director of Public Prosecutions
and Another v Mohamed NO and Others:15
14 See n2 at [20].
15 [2002] ZACC 9; 2002 (9) BCLR 970 (CC); 2002 (2) SACR 196 (CC) at [17].
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“… f orfeiture in circumstances where it is established, on a balance of
probabilities, that property has been used to commit an offence, or
constitutes the proceeds of unlawful activities, even where no criminal
proceedings in respect of the relevant crimes have been instituted.”
Costs
[60] Costs are within the court's discretion. The general principle is that costs
follow the result. The successful party is ordinarily entitled to costs. The
appellant relies on the Biowatch principle, which provides that persons should
not be deterred from enforcing their rights because they fear that they will
have to pay costs if unsuccessful. In Biowatch Trust v Registrar, Genetic and
Others,16 the court held that costs should not ordinarily be awarded against an
unsuccessful litigant in constitutional litigation.
[61] However, the Biowatch principle is not absolute. In Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others ,17 the court held that
costs may be awarded against the NDPP where it ac ted vexatiously or
unreasonably. Similarly, costs may be awarded against a private litigant
where the proceedings are not genuinely constitutional or where the litigant
has acted unreasonably.
[62] In this matter, the appellant has not established that the respondent acted
vexatiously or unreasonably. The respondent ’s decision to pursue forfeiture
was justified on objective facts. The evidence, considered cumulatively,
16 [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC) at para 24.
17 [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 a [64].
23
supported the conclusion that the truck and trailer were instrumentalities of
the robbery. The appellant had a full opportunity to present his case, and his
defence failed.
[63] The appellant is a private litigant. The respondent is a public functionary
executing a constitutional obligation. However, the appellant ’s defence was
not primarily a constitutional challenge; it was a factual defence based on his
alleged lack of knowledge. The Biowatch principle is less compelling in such
circumstances.
[64] In the exercise of my discretion, I consider it appropriate that the appellant
pay the costs of the appeal. The respondent has been successful, and there
is no reason to depart from the general principle that costs should follow the
result. The appellant’s failure to establish the innocent owner defence and his
reliance on an untenable version of events justify a costs order against him.
Conclusion
[65] The appeal is meritless. The forfeiture order is confirmed, on the basis that
the truck and trailer are instrumentalities of the offence of robbery (a Schedule
1 offence). The innocent owner defence under section 52 (2A) has not been
established. The forfeiture is proportionate. The appellant is liable for the
respondent’s costs.
Order
[66] In the result, the following order is made:
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1. Condonation for the late filing of the appeal record is granted.
2. The appeal is dismissed with costs.
___________________________
TP MUDAU
JUDGE OF THE HIGH COURT
JOHANNESBURG
I agree
___________________________
PG MALINDI
JUDGE OF THE HIGH COURT
JOHANNESBURG
I agree
A SUBEL
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
25
Appearances:
For the Appellant: Mr M Sithole
Instructed by: Lesika Molefi Attorneys
For the Respondent: Mr A Dabula
Instructed by: State Attorneys, Johannesburg
Date of Hearing: 12 August 2026
Date of Judgment: 01 September 2026