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[2013] ZAWCHC 206
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Imador v S (A167/2013) [2013] ZAWCHC 206; 2014 (2) SACR 411 (WCC) (19 December 2013)
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IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO: A167/2013
DATE:
19 DECEMBER 2013
In the matter
between
LUCKY
IMADOR
.............................................
Appellant
And
THE
STATE
....................................................
Respondent
JUDGMENT
DELIVERED ON
THURSDAY, 19 DECEMBER 2013
BLIGNAULT J:
[1] Appellant was
convicted on 13 August 2012 in the Regional Court at Bellville on a
charge of money laundering in contravention
of s 4 of the Prevention
of Organised Crime Act 121 of 1988 (‘POCA’). He was
sentenced to 5 years’ imprisonment.
[2] Section 4 of
POCA reads as follows:
‘4 Money
laundering
Any person who knows
or ought reasonably to have known that property is or forms part of
the proceeds of unlawful activities and-
(a) enters into any
agreement or engages in any arrangement or transaction with anyone in
connection with that property, whether
such agreement, arrangement or
transaction is legally enforceable or not; or
(b) performs any
other act in connection with such property, whether it is performed
independently or in concert with any other
person,
which has or is
likely to have the effect-
(i) of concealing or
disguising the nature, source, location, disposition or movement of
the said property or the ownership thereof
or any interest which
anyone may have in respect thereof; or
(ii) of enabling or
assisting any person who has committed or commits an offence, whether
in the Republic or elsewhere-
(aa) to avoid
prosecution; or
(bb) to remove or
diminish any property acquired directly, or indirectly, as a result
of the commission of an offence,
shall be guilty of
an offence.’
[3] Section 4 of
POCA must be read with the following definitions:
'proceeds of
unlawful activities' is defined as ‘any property or any service
advantage, benefit or reward which was derived,
received or retained,
directly or indirectly, in the Republic or elsewhere, at any time
before or after the commencement of this
Act, in connection with or
as a result of any unlawful activity carried on by any person, and
includes any property representing
property so derived;
'unlawful activity'
is defined as ‘conduct which constitutes a crime or which
contravenes any law whether such conduct occurred
before or after the
commencement of this Act and whether such conduct occurred in the
Republic or elsewhere.’
[4] Sub-sections
1(2) and 1(3) of POCA read as follows:
‘(2) For
purposes of this Act a person has knowledge of a fact if-
(a) the person has
actual knowledge of that fact; or
(b) the court is
satisfied that-
(i) the person
believes that there is a reasonable possibility of the existence of
that fact; and
(ii) he or she fails
to obtain information to confirm the existence of that fact.
(3) For the purposes
of this Act a person ought reasonably to have known or suspected a
fact if the conclusions that he or she ought
to have reached are
those which would have been reached by a reasonably diligent and
vigilant person having both-
(a) the general
knowledge, skill, training and experience that may reasonably be
expected of a person in his or her position; and
(b) the general
knowledge, skill, training and experience that he or she in fact
has.’
[5] The full charge
sheet reads as follows:
‘
PREAMBLE
TO CHARGE SHEET
Whereas at all
material times relevant to the charge sheet.
1. The accused is a
Nigerian, with a South African identity number 7………………,
and is self
employed
2. Izak Jacobus
Lintvelt (Hereinafter referred to as the complainant) responded to an
E-mail that he received on the 31st January
2008 from a person
unknown to him, who introduced himself as Barrister Tom Hickman
“Hickman”, a London legal practitioner.
3. Barrister Tom
Hickman told the complainant that he was the executor of the estate
of the late Randolf Lintvelt who passed away
in October 1989.
4. Hickman informed
the complainant that he, the complainant, was the only surviving
relative of the late Randolf Lintvelt and that
a sole beneficiary of
the estate worth thirteen million eight hundred pounds.
5. Hickman also
informed the complainant that he required him to make several
payments, which would be the following purposes:
• Legal and
consultation fees;
• Preparation
of various documentation;
• Revenue
charges,
6. Accused before
court approached a South African National by the name of LONWABO
MQONCI alias “Toto”, who at the time
worked as a teller
for ABSA to use his account number as a recepient (sic) of the money
from the complainant, in return LONWABO
MQONCI would leave an amount
of R100 00.00 (one hundred thousand rand) for his assistance, in his
bank account.
7. LONWABO MQONCI
then gave the two Nigerian nationals, one of which was the accused
before the court, his bank account details
to wit Absa savings
account number 9………...
8. On the 06th March
2008 Izak Jacobus Lintvelt deposited an amount of R 789 300.00 (seven
hundred and eighty nine thousand three
hundred rand) into the LONWABO
MQONCI account with Absa, account number 9……………….
9. On the 08th March
2008 LONWABO MQONCI then made two consecutive withdrawals of R 290
000.00 (two hundred and ninety thousand
rand) each from his own bank
account 9………….. (sic) held with Absa
Bank.
10. At this stage
the accused was standing at the next teller and was waiting to
receive the money.
11. Accused is the
holder of an Absa bank account with account number 9………...
12. The accused then
deposited one of the R 290 000.00, that was withdrawn by LONWABO
MQONCI, into the account mentioned in para
11 supra, and the other
amount to another separate account.
13. From the 08th
March 2008, the money was deposited into the account mentioned in
para 11 supra, there has been numerous cash
withdrawals.
14. It is common
cause that LONWABO MQONCI was found guilty of section 5 (Assisting
another to benefit from proceeds of unlawful
activities) of the
Prevention of Organised Crime Act 121 of 1998
on the 28 January 2010.
15. The state
alleges that the accused actively acted in furtherance of a common
purpose in that he was actively involved in the
conspiracy to obtain
money from the complainant.
COUNT 1
MONEY LAUNDERING
CONTRAVENTION OF
SECTION 4 READ WITH SECTIONS 1 AND 8 OF THE PREVENTION OF ORGANISED
CRIME ACT NO 121 OF 1988, AS AMENDED.
IN THAT on or about
08 March 2009 at or near Sea Point in the Regional Division of the
Cape, the accused did unlawfully and intentionally
well knowing
and/or where he ought to have known that the funds mentioned in
paragraphs 11 supra of the preamble to this charge
sheet were and/or
formed part of the proceeds of unlawful activities; to wit fraud
and/or theft
(a) Enters into any
agreement or engages in any arrangement or transactions with anyone
in connection with that property, whether
such agreement, arrangement
or transaction is legally enforceable or not
Which has, or is
likely to have, the effect- Of concealing or disguising the nature,
source, location disposition or movement of
the said money or its
ownership or any interest which anyone may have in respect there of;
TO WIT by engaging
in the arrangement or transactions and or performing the following
acts;
• Casusing
(sic) or allowing cash money, to be fraudulently diverted or
misappropriated from the banking account of Izak Jacobus
Lintvelt
into his personal banking account as mentioned supra in para 11 of
the preamble to this charge sheet, misrepresented that
the monies
were due to him from Izak Jacobus Lintvelt.
• By spending
or utilization of the proceeds of the unlawful activities.’
[6] The first
witness for the State was Mr Lonwabo Mqonci (‘Mqonci’).
In January 2008 he was employed as a teller at
the Sea Point branch
of Absa Bank. He had his own personal bank account at Absa. He knew
appellant because he was a client of
Absa and he often came into the
bank to do transactions on his own account. He testified that
appellant approached him one day
and told him that he wanted to
deposit money in a bank account but he did not have one. He said that
he got the money from a job
but he did not specify what the job was.
[7] Mqonci said that
he agreed to allow appellant to use his account for making the
deposit. Appellant told him that the amount
involved would be R500
000,00 and that he (Mqonci) would receive a reward of R100 000,00.
He went with appellant to someone’s
house in Table View and he
gave appellant his bank account details. A few days later a sum of
about R700 000,00 was transferred
into his account. He assisted
appellant in withdrawing the money in the form of two amounts of R290
000,00 each. He gave R290
000 in cash to appellant. He (Mqonci)
received a reward of about R180 000,00 for his efforts.
[8] Under
cross-examination Mqonci denied that he was involved in the
transaction with four other Nigerians. He stated that he received
about R150 000,00 to R160 000,00 as his reward. He denied the
allegation that appellant withdrew only R290 000,00. He said that
he
met appellant only once after the transaction had been completed.
Appellant complained about the fact that he had not received
any
reward.
[9] Ms Annemarie
Niemand testified that she is a captain in the South African Police
Service. She was the investigation officer.
Her investigation
started in 2008 in respect of a complaint of Mr Sakkie Lynveld of
Ceres. He had received e-mails from London
in which he had been
promised a large inheritance. She established that he had paid an
amount of R789 300,00 into the bank account
of Mqonci. She examined
Mqonci’s bank statements and found that he had transferred the
money by way of two transfers of
R290 000,00 each, an amount of R290
000,00 to appellant’s account and the same amount to an account
of one Mohamed. She
examined appellant’s bank statements and
found that he received R290 000,00 and then, after about 19 days, he
started making
some withdrawals, some small, others bigger, over a
period of time.
[10] Appellant
testified that he knew Mqonci as a bank teller and as a friend. He
himself owned a shop. One day four Nigerians
entered his shop and
bought certain articles. He did not know them but he knew that their
names were Slim, Morris, Hakeem and
Jude. They asked him whether he
had a cheque account to which he replied that he only had a savings
and a credit card account.
He asked them why they were looking for a
cheque account and they said they were expecting money from their
uncle overseas. He
said he would let them know when he found someone
with a cheque account.
[11] One day he met
Mqonci in Sea Point and he gave him a lift to town. He asked Mqonci
whether he had a bank account. Mqonci
replied that he had one. On
their way he told Mqonci about the Nigerians looking for a cheque
account. He phoned the one called
Slim and arranged that Mqonci
would meet them. A few days later he drove Mqonci to a house in
Parklands where they met the Nigerians.
He introduced Mqonci to Slim
and Mqonci gave his account number to Slim. He and Mqonci stayed
there for a while and then he took
Mqonci back to town.
[12] Two weeks later
he received a telephone call from Slim who told him that Mqonci was
not picking up the phone. He (appellant)
called Mqonci and told him
that the Nigerians had called to say the money had arrived ‘from
England.’ A couple of
hours later Mqonci telephoned back to
say the money had arrived in his bank account. Appellant called Slim
who sent him a SMS
that the money had to be paid into an account of a
person, as he recalls, with a Muslim name. He (appellant) went to
the bank
and gave that account number to Mqonci. Mqonci said he was
busy and that he would get back to him later. The Nigerians kept on
telephoning him on the same day to find out where the money was.
That evening he met Mqonci outside the bank. The Nigerians were
also
present. Mqonci told them he would transfer the money the next day.
[13] The next day he
went to see Mqonci at the bank. Mqonci told him that he had told the
Nigerians that the best thing would be
to split the money between two
accounts. Appellant telephoned Slim who told them that they could
pay R290 000 into his (appellant’s)
account. He went back into
the bank and spoke to Mqonci. Mqonci then transferred the money as
requested. Slim telephoned him
again and he told him that the money
had been transferred into the account of which he had given him the
number. He asked them
what reward they were going to give him. Slim
said he must talk to Mqonci about that.
[14] When appellant
approached Mqonci he told him that he (Mqonci) was not giving him any
money and that if he (appellant) paid
out all the money from his
account that would be his problem. He (appellant) then started to
give the money to the Nigerians bit
by bit. After a while Slim asked
him to help him to buy foreign currency. He asked for his reward and
Slim said that he would
get R5 000,00. They got into a big argument.
Slim then started to phone his wife and threaten her. He became
worried because
he had a small baby and he decided to change the
money in his account that he still owed Slim into dollars and gave it
to Slim.
Appellant was unable to explain why the withdrawals of the
money from his account were in small amounts over a period of about 6
months. At a later stage appellant went to see Mqonci in Mitchell’s
Plain but Mqonci told him that he had no money for him
and gave him
only a Coke and a pie.
[15] In his judgment
the magistrate discussed the facts of the case against the backdrop
of the provisions of the Act. He pointed
to various inconsistencies
and improbabilities in appellant’s version and concluded as
follows:
‘The court is
satisfied that the state proved beyond reasonable doubt that the
accused when engaging in this transaction had
knowledge that the
property, money to the value of R290 000,00 formed part of the
proceeds of unlawful activities. The way in
which the accused spent
and utilised the money over a period of six months clearly indicate
that he used it his leisure as his
own …’
[16] I agree with
the magistrate that appellant’s version of the facts falls to
be rejected outright. The improbabilities
and inconsistencies in his
evidence count heavily against him. These include the following
aspects:
(1) Appellant’s
dealings with four unknown persons who did not even own a bank
account between them.
(2) Appellant’s
apparent lack of interest in the source of the money.
(3) Appellant’s
decision to approach Mqonci, a person whom he did not know well at
all.
(4) The roundabout
manner in which money was transferred from account to account.
(5) The magnitude of
the reward ostensibly paid to Mqonci.
(6) The reason for
the payment of one half of the monies into his account and the other
into the account of an unknown person.
(7) The urgency with
which the Nigerians’ persisted him to be informed about the
receipt of the money / the urgency with which
the Nigerians enquired
about the receipt of the money.
(8) The absence of
any reward for appellant, compared to that of Mqonci.
(9) Appellant’s
lie about the existence of an account of his own into which the money
could have been paid.
(10) The mysterious
meeting with the Nigerians in the house at Parklands.
(11) The manner of
the subsequent withdrawal of the funds from appellant’s account
and his inability to explain it.
[17] A legal issue,
however, is whether it was incumbent upon the state to identify and
prove the exact nature of the alleged unlawful
activity. In the
present case the state did not do so. The evidence of Ms Niemand in
regard to the original crime was in our
view correctly rejected by
the magistrate on the basis that it was hearsay evidence.
[18] Counsel for
respondent referred us to the judgment of the England and Wales Court
of Appeal (Criminal Division) per Lord Justice
Latham in Anwoir &
Ors, R. v [2008] EWCA Crim 1354 (27 June 2008). Under consideration
was a statutory provision similar to
s 4 of POCA. The comparable
concept was ‘criminal property’. After examining a
number of previous judgments, Lord
Justice Latham said the following,
in para 21:
‘There is a
clear tension between these two paragraphs. Laws L.J. stated that the
issue was a pure matter of law. But it
is perhaps important to note
that NW was a case in which the prosecution's evidence was
essentially based upon the fact that NW
had no visible means of
support. That is quite a different case from the scenarios envisaged
by Sullivan J in paragraphs 33 and
34 of his judgment. We consider
that in the present case the Crown are correct in their submission
that there are two ways in which
the Crown can prove the property
derives from crime, a) by showing that it derives from conduct of a
specific kind or kinds and
that conduct of that kind or those kinds
is unlawful, or b) by evidence of the circumstances in which the
property is handled which
are such as to give rise to the
irresistible inference that it can only be derived from crime.’
[19] We find the
reasoning of Lord Justice Latham persuasive. It accords in our view
with a sensible interpretation of section 4
of POCA. In the present
case it is my view that the evidence of the circumstances (including
appellant’s own mendacity)
are such as to give rise to the
irresistible inference that he knew that the monies in question were
derived from an unlawful activity.
[20] I am
accordingly of the view that appellant’s appeal against his
conviction should be dismissed.
[21] A probation
officer’s report and a correctional services officer’s
report were placed before the magistrate for
purposes of sentencing.
Appellant’s personal circumstances appear from these reports
and were confirmed by him in evidence.
He was born on 10 September
1970 in Nigeria and he grew up in Nigeria. He fled Nigeria in 1996
due to political issues. He came
to South Africa and moved to Cape
Town. He has owned various small businesses including a clothes stand
from which he currently
earns about R10 000 per month. He was married
in 2007 and he has a 5 year old daughter. He is a South African
citizen as he has
been naturalised. Appellant has been described by
his wife as a caring family man. He resides in a three room apartment
in Milnerton.
[22] Appellant has
one previous conviction for producing false immigration papers,
committed in 2003. He was sentenced to a fine
of R4 000. He
expressed remorse for the crime committed by him in the present case
but it appears that the money was never recovered.
Appellant was
found to be a suitable candidate for correctional supervision.
[23] The magistrate
gave a balanced judgment on sentence. It is my view, however, that he
failed to give due weight to the principle
of consistency. See
Terblanche: A Guide to Sentencing in South Africa (second edition)
(2007) at 124-126. The author points out
that consistency in
sentencing is a worthy ideal, internationally and in South Africa.
It does not mean, however, that relevant
distinguishing features may
be ignored.
[24] Mqonci was also
convicted for his role in the crime but he was sentenced to 3 (three)
years’ imprisonment only. On the
face of it appellant’s
criminal conduct did not differ substantially from that of Mqonci.
Having regard to all the circumstances
of the case a sentence of 3
(three) years’ imprisonment would in my view be appropriate for
appellant.
[25] Appellant’s
sentence of 5 (five) years’ imprisonment should therefore be
set aside and replaced by a sentence of
3 (three) years’
imprisonment.
[26] In the result ,
I grant the following orders:
(1) Appellant’s
appeal against his conviction is dismissed. The conviction is
confirmed.
(2) Appellant’s
appeal against his sentence is upheld. His sentence of 5 (five)
years’ imprisonment is set aside and
replaced by a sentence of
3 (three) years’ imprisonment.
A P BLIGNAULT
NYMAN AJ: I
agree
R M NYMAN