About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2012
>>
[2012] ZAWCHC 315
|
|
National Director of Public Prosecutions v Nnaemeka (6747/2011) [2012] ZAWCHC 315 (20 September 2012)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case No.: 6747/2011
In the matter
between:
THE NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
.................................................................................
Applicant
and
CHARLES NNAEMEKA
.............................................................................................................
Intervening
Party/Respondent
JUDGMENT delivered
on 20 SEPTEMBER 2012
MEER J.
[ 1 ] The applicant
applies in terms of Section 48( 1) of the Prevention of Organised
Crime Act No 121 Of 1998 (POCA) for a forfeiture
order over the cash
amount of R80 000.00 ("the property”) seized at 72 Arena
North, Royal Ascot (“the premises”)
by members of the
South African Police Services (“SAPS”) on 28 November
2007. The premises are owned by the respondent.
The applicant
contends that the property is the proceeds of unlawful activities or
an instrumentality of an offence as listed in
Schedule 1 of POCA. The
applicant contends moreover that the respondent acquired the property
unlawfully and that he knew that
the property was an instrumentality
of an offence.
Background Facts
[2] On 28 November
2007 members of SAPS went to the premises with a search warrant to
exercise a search for drugs and stolen property.
They showed the
warrant to the respondent and explained the purpose of their visit.
On the premises were 2 other men who identified
themselves as Adam
Chifula and Innocent Nnaemcka.
[3] The police
searched the premises and seized R80 000.00 in cash, laptop
computers, cellular telephones as well as acetone and
coffee filters,
commonly used in the manufacturing of methamphetamine (“tik”).
A scale believed to weigh drugs was
also found. The SAPS members
observed a yellow discolouration of the door to the garage of the
premises, which in their view is
a common indicator of tik
manufacturing.
[4] According to the
statement of Constable Pike, security officers at the entrance to the
complex informed Pike that they had observed
several vehicles coming
in and out of the complex at unusual hours of the night and early
morning. They also said that they observed
a strange smell of
chemicals emanating from the house. It is contended on behalf of the
applicant that this is indicative of drug
dealing/manufacturing
activities. According to the applicant the police provided the
respondent and the others present with an
opportunity to answer
questions about the cash and the other items seized, but they elected
to remain silent and provided no explanation
at the time.
[5] Constable Pike
arrested the respondent and the other 2 men on charges of
manufacturing methamphetamine and possession of suspected
stolen
property. The criminal charges were later withdrawn. One of the
laptops seized from the premises was found to be. stolen
from a
certain Ms Pauline De Kock and was returned to her.
[6] The substances
seized from the premises were analysed and Sergeant Bonga Mabhulu, a
forensic expert at the Forensic Science
Laboratory, found these to
contain methamphetamine (listed in part 3 of Schedule 2 of the Drugs
and Drug Trafficking Act 140 of
1992 (“the Drugs Act”),
acetone, (listed in part 1 of Schedule 2 of the Drugs Act) and
ephedra alkaloid, (listed in
Schedule d of the
Medicines and Related
Substances Act 101 of 1965
). The items are prohibited substances used
in the manufacturing of drugs.
[7]
On 31 March 2011 this Court granted a preservation order over the
cash amount of R80 000.00 which was under the control of Sergeant
Mabhulu. At the time of the seizure no persons claimed ownership of
the property and thus applicant did not cite a respondent in
the
preservation application. Applicant caused a copy of the preservation
order to be published in the Government Gazette of 15
April 2011.
Thereafter on 1 June 2011 the applicant commenced the forfeiture
application. Such application was postponed twice
so that attempts
could be made to locate any persons who may want to lay claim to
their cash. Thereafter a senior financial investigator
within the
National Prosecution Authority managed to locate the respondent on
whom the preservation order and forfeiture application
was served on
27 June 2011. On 29 July 2011 attorneys acting on behalf of the
respondent filed a notice to oppose the forfeiture
order and a notice
to intervene in the proceedings. By agreement between the parties the
forfeiture application w
r
hich
was enrolled for 3 August 2011 was postponed to 18 September 2012.
Respondents’version
as per his answering affidavit
[8] In his replying
affidavit the respondent states that he is a trader of goods imported
from elsewhere in Africa. He sells food
and cosmetics through N
Charles Import and Export CC of which he is the sole member and he
has two people working for him. His
place of business, he states is
in Mowbray. The respondent however provides no proof of his business.
[9] The respondent
does not deny that the cash or the other items seized were found on
the premises owned by him. He however denies
that he was ever part of
or had any knowledge of any unlawful activities on his premises. He
points out that the .incriminating
goods were found in the garage
which is separate from the house, the cash was found in his bedroom
inside the house and:that no
incriminating material was found in his
bedroom, linked to illegal drugs, thereby suggesting that the cash
was the proceeds of
unlawful activity. The cash, he explains was paid
to him on 27 November 2007 by a Mr Sunday Okonkwo as the purchase
price for a
black VW Polo which the respondent had sold to this
person. As it was a Sunday when the sale occurred, he could not bank
the money.
[10] Attached to the
respondent’s answering affidavit is a document which is alleged
to have been signed by both the respondent
and Mr Okonkwo confirming
the sale of the vehicle. The document is dated 27 November 2007. The
first respondent states that he
has recently tried to get in contact
with Mr Okonkwo to obtain a confirmatory affidavit. He believed that
Mr Okonkwo has left the
country and is currently residing in
Tanzania. The affidavit states that the respondent is not in a
position to confirm whether
he will be coming back any time soon.
Contrary to this, in argument at the hearing, the respondent who
represented himself stated
he was in regular telephonic contact with
Mr Okonkwo, who is his cousin, but could not explain the absence of
an affidavit from
this person.
[11] The respondent
further adds in his affidavit that all the tenants of the property
have a key to the garage where they stored
personal items in boxes.
He had never enquired from individual tenants as a matter of respect
for their privacy, as to what they
were storing in the boxes. In
addition the garage was used to hang washing and at all other times
the respondent’s car was
parked there.
[12] The respondent
goes on to state that when the items were found in the garage he had
explained to the police that he had no
knowledge of them, and that
they should question the tenants seeing that it was mostly their
items that were stored in the garage.
He also states that he
explained to the police at the time the money was discovered that it
was the proceeds of the sale of his
vehicle. Attached to his
affidavit is what he refers to as a print-out of the registration
details of the vehicle. He contends
from this that the purchaser did
not transfer the vehicle onto his, the purchaser's name but sold it
back “to the trade”
some months later.
[13] The respondent
challenges the evidence pertaining to the yellow discolouration of
the garage door on the basis that this was
not analysed. He denies,
that there were chemical smells emanating from the house and that
there was traffic at odd times at night.
He states that as the
evidence from the security guards, is hearsay, it should be rejected.
[14] The replying
affidavit of Advocate Van Zyl notes that a period of 3 years lapsed
before the respondent claimed the ownership
of the cash. He adds that
when Constable Pike showed the warrant to the respondent on arriving
at the house the respondent, without
further ado ran to the bathroom
as if to dispose of something. If the respondent had nothing to hide,
he would have not have acted
in this manner.
Finding Hearsay
Evidence
[15]
In respect of the evidence of the security guards as recorded in the
statement of Constable Pike which the respondent objects
to as being
impermissible hearsay evidence, it is trite that Section 3(1) of the
Law of Evidence Act 45 of 1988 provides a Court
with a discretion to
admit hearsay evidence. I am satisfied that regard being had to the
nature of these proceedings, the nature
of the evidence, the purpose
for which it was tendered, its probative value (emanating from a
statement by a police officer who
had no reason to implicate the
respondent in particular), and the interests of justice, that such
evidence should be admitted.
As was said by Conradie J in
Nyama
v
Gxalaba and Another
1990(1) SA 650 (C) at 653 J:
“
/
think
the correct way to treat the hearsay' part of the evidence is to
admit it as hewing sufficient probative value to qualify
it for
consideration and then to analyse it to see whether it has sufficient
cogency to warrant its acceptance."
Is the Property
an Instrumentality of an Offence/ Proceeds of Unlawful Activities
[[16] Section
50(l)(a) of POCA enjoins a High Court, upon application by the
National Director of Public Prosecutions in terms of
Section 48( 1),
to make an order forfeiting to the State property which it finds on a
balance of probabilities to be either an
instrumentality of a
Schedule 1 offence, or the proceeds of unlawful activities.
[17]
It is trite that when a forfeiture order is sought a Court undertakes
a two stage enquiry. See
National
Director of Public Prosecutions
v
R
O Cook Properties
2004(8) BCLR 844
(SC A) at page 853 paragraph 21. During the first stage of the
proceedings, the
onus
rests on the applicant to show on a balance of probabilities that the
property in question constitutes the proceeds and/or an
instrumentality of an offence.
[18] It is not
disputed that illegal chemical substances and stolen items were found
on the premises owned by the respondent. The
affidavit of Sergeant
Mabhulu the forensic expert attached to the Forensic Science
Laboratory makes clear that an analysis shows
that the substances
found were illegal. It is also the case that a yellow discolourant
associated by the police with the manufacture
of tik was found on the
garage door. The evidence of the security guards which I have found
to be admissible, is corroborative
of this activity.
[19]
The respondent relies on two documents for proof that the
money
emanated from the sale of his vehicle. The first document on the
respondent’s version is the purported deed of sale marked
Annexure “CUNT* dated 27 November 2007, the day before the
search and seizure. There is however no evidence to corroborate
the
sale of the vehicle, evidence which, given that the cash was seized
in incriminating circumstances, the respondent should have
produced.
The man who bought the vehicle according to the respondent is out of
the country. In argument the respondent said he
is in regular
telephonic contact with him, yet he could not explain why the
purchaser did not give a confirmatory affidavit; There
are also no
confirmatory affidavits from the witnesses to the document.
[20]
Respondent’s explanation as to why he had R80 000 in
:
cash
in his draw, namely that he received it on 27 November 2007, a
Sunday, when banks were closed, does not
:
pass muster, given that, as is pointed out by the applicant, that
particular date fell on a Tuesday in 2007. Importantly, the
respondent does not explain why, if indeed the cash was the proceeds
of the sale of his vehicle, and he had a deed of sale from
the day
before, he did not show this document to the SAPS members at the time
of the seizure. The applicant’s contention
in the circumstances
that the deed of sale was a fabrication for the purpose of these
proceedings, is understandable. Then there
is the absence of a
satisfactory explanation from the respondent as to why, if the cash
emanated innocently from the sale of the
vehicle, he did not lay
claim to it for three years and why he had to be tracked down by an
investigator.
[21] The second
document annexed to the respondent’s affidavit pertaining to
the transfer of the vehicle to Barons Gulcmborg,
does not assist in
proving that the property emanated from the sale of the vehicle as
alleged by respondent. The attachment certainly
does not provide
proof that the respondent received R80 000.00 for the sale of the
vehicle. There is moreover nothing from that
attachment to indicate
that the respondent sold the vehicle to Mr Okonkwo, (to whom the
vehicle on respondent’s own version
had not in fact been
transferred), or that the latter transferred it to Barons Culemborg.
In this regard there is some merit in
the applicant’s
contention that, it is only the respondent, who, as the registered
owner of the vehicle, could have signed
papers 'transferring
ownership to Barons. The second document does not in the
circumstances assist the respondent.
[22] The
respondent’s explanation of the origin of the money in all of
the circumstances lacks credibility, especially given
that the cash
was seized together with the undisputed illegal substances, stolen
property and ingredients used in the manufacturing
of
methamphetamine. Given the absencc of any other acceptable evidence,
applicant’s version must be accepted. I am satisfied
that the
applicant has shown on a balance of probabilities that the property
in question constitutes the proceeds of an offence
or is the
instrumentality of an offence.
Innocent Owner
Defense
[23]
Given my finding that the property in question constitutes the
proceeds of an offence/instrumentality of an offence, the
onus
now shifts to the respondent to establish the so-called “innocent
owner” defence. To this end the respondent was required
to
establish on a balance of probabilities that he acquired the property
lawfully and that he neither knew, nor had reasonable
grounds to
suspect that the property was an instrumentality of an offence. Given
my rejection of the respondent’s version
that the property
emanated from the sale of
his vehicle, tlie
respondent has not shown on a balance of probabilities that he
acquired the property lawfully.
[24] The evidence in
my view simply does not bear out the innocent owner defence, It is
hard to believe that the respondent was
unaware that ingredients used
to manufacture drugs were stored in his garage or of any activity
related thereto. The respondent
himself admits using the garage and
that his car was parked there. In the light of all the evidence the
respondent has in my view
not established on a balance of
probabilities the innocent owner defence namely that he acquired the
property lawfully and that
he neither knew nor had reasonable grounds
to suspect that the property was an instrumentality of an offence.
[25] In the
circumstances I am of the view that the applicant has shown oii a
balance of probabilities that the property seized
was either the
proceeds of or an instrumentality of an offence and that the
applicant is entitled to the forfeiture order it seeks.
I accordingly order
as follows:
1.
In terms of section 53 of the Prevention of Organised Crime Act 121
of 1998
(POCA)
the
cash amount of R80 000.00 seized on 28 November 2007 at 72 Arena
North, Royal Ascot, Milnerton by members of the South African
Police
Services
(SAPS)
is
declared forfeited to the State.
2.
Sergeant Bonga Precious Mabhulu
(Mabhulu)
of the SAPS Forensic Science
Laboratory
(FSL)
in
Delft:
2.1.
Is directed to hand the cash amount of R80 000.00 to Inspector
Charmaine Van Vuuren
(Van Vuuren)
of
the SAPS.
2.2. Van Vuuren is
directed to deposit the cash amount of R80 000.00 into the bank
account of the State Attorney held at ABSA bank,
account number
4051600990, branch code 632005 within 45 days of the granting of this
order.
2.3. The State
Attorney is directed to pay the R80 000.00 into the banking account
of the Criminal Asset Recovery Account held at
the Reserve Bank,
account number 80303056.
3. The Registrar of
this Honourable Court is directed to publish notice of this order in
the Government Gazette as soon as practicable
after the order is
made.
Y
S MEER
Judge of the High
Court