National Director of Public Prosecutions v Salie and Another (384/2012) [2014] ZAWCHC 40; [2014] 2 All SA 688 (WCC); 2015 (1) SACR 121 (WCC) (26 March 2014)

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[2014] ZAWCHC 40
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National Director of Public Prosecutions v Salie and Another (384/2012) [2014] ZAWCHC 40; [2014] 2 All SA 688 (WCC); 2015 (1) SACR 121 (WCC) (26 March 2014)

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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NO: 384/2012
DATE:
26 MARCH 2014
In
the matter between:
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
........................................
Applicant
And
SELINA
SALIE
.............................................
First
Respondent
NICOLE
FERNANDEZ
..............................
Second
Respondent
Heard: 17 and 18 March 2014.
Reportable.
JUDGMENT: 26 MARCH 2014
BREITENBACH,
AJ:
1.
The National Director of Public Prosecutions (‘the
NDPP’) applies in terms of ss 48(1), 50(1)(a) and (b) and
53(1)(a)
of the Prevention of Organised Crime Act 121 of 1998
(‘POCA’) for an order declaring forfeit to the State
certain property
owned by the first and second respondents.
2.
The first respondent and the second respondent are
mother and daughter.
3.
The property concerned is the following:
3.1.
the money in the Standard Bank account numbers
2………… and 6……………..

in the name of the first respondent (‘the first respondent’s
bank accounts’);
3.2.
the money in the First National Bank account
numbers 6…………. and 6……………..

in the name of the second respondent (‘the second respondent’s
bank accounts’);
3.3.
an immovable property situate at 7… B….
Road, W…., also described as Erf 9…., W……..,
owned
by the first respondent (‘the Broad Road property’);
3.4.
an immovable property situate at 1…. P…..
Road, W….., also described as Erf 6…., W….,
owned by
the first respondent (‘the Perth Road property’);
3.5.
an immovable property situate at 7 C…..
Street, M….. P…., also described as Erf 7……,
M…….
P……, owned by the second respondent
(‘the Cuckoo Street property’); and
3.6.
a silver Toyota Rav 4 motor vehicle with
registration number CA 4… registered in the name of the
first respondent (‘the
Rav 4’).
4.
Section 48(1) of POCA provides that if a
preservation of property order is in force the NDPP may apply to a
Division of the High
Court for an order forfeiting to the State all
or any of the property that is subject to the preservation of
property order.
Since 17 January 2012 the property has been
subject to a preservation of property order made in terms of s 38(1)
of the Act
and under the control of a
curator
bonis
, Mr A C Van Heerden.
The
curator bonis
has
filed five reports, namely three reports in the ordinary course dated
1 March 2012, 2 May 2012 and 6 February 2013 respectively
and
two reports in response to a request by me dated 24 and 25 March 2014
respectively.
5.
Section 50(1)(a) and (b) of POCA provide that the
court shall, subject to section 52 (the provisions of which are not
relevant in
this matter), make an order applied for under s 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 of POCA or is the proceeds of unlawful activities.
6.
The NDPP contends that, on the probabilities, all
of the property is the proceeds of contraventions of ss 2
(keeping a brothel)
and 20(1)(a) (knowingly living wholly or in part
on the earnings of prostitution) of the Sexual Offences Act 23 of
1957 (‘the
Sexual Offences Act’).
7.
The NDPP further contends that, on the
probabilities, the Broad Road property and the Rav 4 are
instrumentalities of those offences,
which are offences referred to
in Schedule 1 of POCA.  Item 33 of Schedule 1 of POCA
refers to any offence punishable
by a period of imprisonment
exceeding one year without the option of a fine.  Section 22(a)
of the Sexual Offences Act provides
that a person convicted of
contravening s 2 or s 20(1)(a) is liable to be sentenced to
imprisonment for a period not
exceeding three years with or without a
fine not exceeding R6 000 in addition to such imprisonment.
In addition, item
11 of Schedule 1 of POCA refers expressly to a
contravention of s 20(1)(a) of the Sexual Offences Act.
See
National Director of Public
Prosecutions v Geyser
[2008] ZASCA 15
;
2008 (2) SACR
103
(SCA) (‘
Geyser
’
)
para 18 and
National Director of
Public Prosecutions v Bosch
2009
(2) SACR 547
(KZD) (‘
Bosch
’
)
para 38.  See generally
National
Director of Public Prosecutions v RO 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
’
)
para 42.
8.
The preservation of property order was duly served
on the respondents and published in the
Government
Gazette
.  Neither the respondents
nor anyone else entered an appearance in terms of s 39(3) of
POCA.
9.
However, on 8 May 2012 this Court (
per
Saldanha J) ordered that copies of the papers be
served on them and on their former attorney as well as on a
non-government organisation
known as the Sex Worker Education and
Advocacy Taskforce (‘SWEAT’).  The objectives of
SWEAT are the empowerment
of sex workers, the decriminalisation of
adult commercial sex work and the promotion of safer sex work
practices (see
S v Jordan and Others
(Sex Workers Education and Advocacy Task Force and Others as Amici
Curiae)
[2002] ZACC 22
;
2002 (6) SA 642
(CC) para
38 note 16).  The NDPP duly complied with the service order,
with the service on the respondents being personal
service.
10.
During the second half of 2012 this matter was
postponed on several occasions to afford the respondents an
opportunity to obtain
legal representation.  The last
postponement granted during 2012 was to 23 October 2013, subject to a
timetable which, amongst
other things, required the respondents to
file answering papers by 19 February 2013.
11.
Only the first respondent filed an answering
affidavit, which though undated appears to have been filed on 31 July
2013.
12.
As a result of the late filing of the first
respondent’s answering affidavit, the hearing of this
application was postponed,
yet again, this time to March 2014 with
the NDPP to file replying papers by 13 December 2014 and with
heads of argument to
be filed in accordance with the rules of this
Court, i.e. 10 days (the NDPP) and 5 days (the respondents)
before the date
of the hearing.
13.
The NDPP duly filed his replying papers and heads
of argument.
14.
Following a reminder from my registrar to the
first respondent’s attorney Mr William Booth, late on 17
March 2013, which
was the day before the hearing, counsel instructed
by him, Adv Anél du Toit, filed heads of argument and Mr Booth
delivered
an application for condonation for the late filing of the
first respondent’s heads.  The application for condonation

was not opposed by the attorney who appeared for the NDPP, Mr
Muhammed Kagee.  At the start of the proceedings on 18 March

2014 condonation was granted.
15.
As to the procedural history of this matter I
should also mention that, flowing from this Court’s order of 8
May 2012, on
9 July 2012 attorneys acting for SWEAT wrote to the
NDPP’s attorneys indicating that SWEAT intended applying for
admission
as an
amicus curiae
.
The attorneys indicated SWEAT’s intention to make submissions
concerning, amongst other things: (a) whether an order
declaring
forfeit to the State property acquired by sex workers using the
proceeds of unlawful activities would amount to an arbitrary

deprivation of property in contravention of s 25(1) of the
Constitution of the Republic of South Africa, 1996 (‘the
Constitution’)
and (b) whether the forfeiture of the immovable
properties would result in any sex workers living there being
evicted.  On
13 July 2012 the NDPP’s attorneys
responded saying the NDPP had no objection to SWEAT’s admission
as an
amicus curiae
.
On 4 September 2012, however, SWEAT’s attorneys delivered
a memorandum saying SWEAT would not be persisting with
its
application because on numerous occasions they had tried
unsuccessfully to contact the sex workers who had been residing at

the three premises described below and it appeared no sex workers
would be evicted if this application were to be granted.
16.
The second respondent has not delivered an
answering affidavit.  There was no appearance for her at the
hearing of this matter
on 18 and 19 March 2013.  The NDPP’s
application for the forfeiture of the property belonging to her is
therefore an
application for an order by default in terms of
s 53(1)(a) of POCA.  However, any order made under that
provision must
be one which the court could have made under s 50(1)
and (2).  It follows that as is the case with the property owned

by the first respondent, I cannot make a forfeiture order in relation
to the second respondent’s property unless I am satisfied
that
it is liable to forfeiture in terms of s 50(1).  In what
follows, therefore, I shall analyse the evidence relating
to the
offences and both the first respondent’s property and the
second respondent’s property.
The
offences
17.
As mentioned earlier, the NDPP contends that, on
the probabilities, all of the property is the proceeds of
contraventions of ss 2
and 20(1)(a) of the Sexual Offences Act.
The
relevant provisions of the Sexual Offences Act
18.
Section 2 of the Sexual Offences Act provides:
‘
2 Keeping a brothel
Any person who keeps a brothel
shall be guilty of an offence.
’
19.
Section 20(1)(a) of the Sexual Offences Act
provides:
‘
20 Persons living on
earnings of prostitution or committing or assisting in commission of
indecent acts
(1)
Any
person who-
(a)
knowingly lives wholly or in part on the earnings of prostitution; or
(b)
…;
(c)
…,
shall be guilty of an offence.
’
20.
Section 3 of the Sexual Offences Act adds that for
the purposes of s 2 the following persons, amongst others, shall
be deemed
to keep a brothel: ‘
any
person who manages or assists in the management of any brothel
’
(s 3(b)) and ‘
any
person who knowingly receives the whole or any share of any moneys
taken in a brothel
’
(s 3(c)).
21.
The Sexual Offences Act defines ‘
brothel
’
as including ‘
any
house or place kept or used for purposes of prostitution or for
persons to visit for the purpose of having unlawful carnal
intercourse or for any other lewd or indecent purpose
’
.
22.
The Sexual Offences Act defines ‘
house
’
widely as including ‘
a
dwelling-house, building, room, out-house, shed or tent or any part
thereof
’
; and it similarly
defines ‘
place
’
widely as including ‘
any
field, enclosure, space, vehicle, or boat or any part thereof
’
.
23.
There is no definition of the word ‘
keeps
’
as it appears in s 2 of the Sexual Offences
Act, or for that matter of the word ‘
kept
’
in the definition of ‘
brothel
’
in s 1.  In
S
v M
1977 (4) SA 886
(A) 896B,
however, Corbett JA held that the essential concept underlying the
‘
keeping
’
of
a brothel is that of exercising powers of management and control over
the brothel.  Corbett JA also said (895G-H) that where
the
definition of ‘
brothel
’
speaks of a house or place ‘
used
for purposes of prostitution
’ ‘
it
means a house or place which is consistently or habitually so used:
it does not refer to a house or place where a single act,
or a few
isolated acts, of prostitution may have taken place
’
.
24.
The Sexual Offences Act does not define
‘
prostitution
’
.
In
S v Jordan
,
supra,
paras 48-50, however, the
minority of the Constitutional Court (‘CC’), with whom
the majority did not differ on this
issue, held that for purposes of
the provision which is now s 20(1A)(a) of the Act (discussed in
paragraph 47
below), ‘
prostitution
’
must be restrictively interpreted to mean
‘
commercial sex, that is sex where
the body is made available for sexual stimulation on a paid basis
’
;
and consequently it does not extend to ‘
sexual
intercourse between consenting adults which does not constitute
prostitution or commercial sex
’
.
(See also
Geyser
,
supra
,
para 6.)  As nothing in the Act or its context indicates
otherwise, the word ‘
prostitution
’
in the definition of ‘
brothel
’
in s 1 and in s 20(1)(a) bears the same
meaning as it does in s 20(1A)(a).  (As to the presumption
that where
the legislature uses the same word in different places in
a statute it intends the word to have the same meaning, see
South
African Transport Services v Olgar and Another
1986
(2) SA 684
(A) 688G-H.)
25.
The Sexual Offences Act defines ‘
unlawful
carnal intercourse’
widely as
meaning ‘
carnal intercourse
otherwise than between husband and wife
’
.
26.
In
S v Jordan
,
supra,
paras 99-101, however, the
minority of the CC, with whom the majority agreed on this issue, held
that, when interpreted in conformity
with the rights to human
dignity, freedom and privacy in the Constitution of the Republic of
South Africa Act 2000 of 1993, the
part of the definition of
‘
brothel
’
(when
read with the definition of ‘
unlawful
carnal intercourse
’
) excluding
the last part (i.e. the words ‘
or
for any other lewd or indecent purpose
’
)
was, again, limited to a house or place kept or used for purposes of
commercial sexual intercourse and did not extend to a house
or place
kept or used for purposes of non-commercial sexual intercourse
between persons who were not husband and wife.  More
simply
stated, the expression ‘
unlawful
carnal intercourse
’
in the Sexual
Offences Act is confined to commercial sexual intercourse and,
despite its wide, literal wording, does not extend
to non-commercial
sexual intercourse between persons who were not husband and wife.
27.
The Sexual Offences Act does not define ‘
lewd
or indecent purpose
’
and the
meaning of this phrase is not discussed in
S
v Jordan
,
supra
,
either.  There are however several earlier cases which shed some
light on the meaning of this expression.
28.
In
S v H
1977 (2) SA 954
(A) it was common cause that the
performance of so-called pelvic massages (masturbation) by female
assistants employed by the appellant
at his massage salon constituted
a lewd or indecent purpose within the meaning of s 2 of the
Sexual Offences Act (then named
the Immorality Act).  (The
parties’ and the Court’s approach to the matter followed
findings to that effect in
S v P
1975 (4) SA 68
(T) and
S
v D
1975 (4) SA 835
(T).)  In
the course of his judgment Wessels JA added, without any elaboration,
that ‘
[t]here could no doubt be a
great variety of lascivious purposes which could be characterised as
being lewd or indecent within the
meaning of sec. 2 of the Act
’
.
29.
In
S v M
1977 (3) SA 379
(C) 381B-382C this Court (
per
De Kock J (Steyn J concurring)) held that s 2
of the (then) Immorality Act was contravened by a person (the
appellant) who
held shows at regular intervals at his house in which
women performed various acts before an audience of men.  In
reaching
the conclusion that s 2 had been contravened, this
Court rejected the appellant’s contention that by virtue of the
eiusdem generis
principle
of statutory interpretation the words ‘
or
for any other lewd or indecent purpose
’
must
be restrictively interpreted to refer only to a purpose that falls
under the same
genus
as
prostitution or unlawful carnal intercourse.  (A similar
argument was rejected in
S v P
,
supra
,
70B-71G.)
30.
However, one of the consequences of the meaning
ascribed to ‘
prostitution
’
and ‘
unlawful
carnal intercourse
’
in
S
v Jordan
, supra,
is
that a ‘
lewd or indecent purpose
’
falls within the definition of ‘
brothel
’
in s 1 of the Sexual Offences Act only if the
relevant act or event is performed or offered on a paid basis.
It does
not extend to non-commercial sexual acts or events.
31.
It follows that the offence created by s 2 of
the Sexual Offences Act is committed by a person who exercises powers
of management
and control over any building or place or any part
thereof which is habitually or consistently used:
31.1.
for purposes of prostitution, that is sexual
intercourse on a paid basis (commercial sexual intercourse), or
31.2.
for persons to visit for any other purpose which
is lewd or indecent on a paid basis, including so-called pelvic
massages (masturbation).
32.
It further follows that the offence created by
s 20(1)(a) of the Sexual Offences Act entails knowingly living
wholly or in
part on the earnings of commercial sexual intercourse.
The
NDPP’s evidence concerning the offences
33.
The evidence concerning the offences in the NDPP’s
affidavits may be summarised as follows.
34.
On 17 June 2010, acting on complaints and
information received about and observations of brothels operating
from three premises
in Cape Town, namely at 148 Belvedere Road
in Claremont (‘the Belvedere Road premises’), at
90 Constantia
Road in Wynberg (‘the Constantia Road
premises’) and at the Broad Road property, officers of the
‘Vice Squad’
of the City of Cape Town Specialised Law
Enforcement Services (‘the City’s Vice Squad’) and
of the South African
Police Service (‘SAPS’) raided those
premises.
35.
At the Belvedere Road premises, in the lounge, the
officers found four women, all of whom said they were sex workers and
worked
as masseuses there.  In one of the other rooms the
officers found a naked man and a naked woman, the man saying he was
there
as a first-time client.  The officers also found and
confiscated registers relating to the money the women had received at

the premises.  The registers showed a total income between
January and 17 June 2010 of R150 235.  While the officers

were at the premises the first respondent and her sister arrived in
the Rav 4.  The first respondent confirmed she was the
owner of
the business conducted at the premises.
36.
At the Constantia Road premises the officers were
admitted by the second respondent, who was the manageress of the
business.
There were five women there.  In one of the
rooms the officers found a man and a woman having sexual
intercourse.  In
the reception area the officers found and
seized a diary which had been maintained daily and showed how many
clients had been seen
by each of the women as well as the monies
paid.  It showed a total income between January and 17 June 2010
of R347 050.
The second respondent said the premises were
used as a massage parlour; when clients wanted sex this was provided
at a higher fee;
the money made by each woman was written next to her
name; and half of the money made by each of the women went to the
first respondent
who came every morning to collect her money.
37.
At the Broad Road property the officers found a
further five women.  The officers also found and seized another
2010 diary
containing the number of clients each woman had seen and
the amount of money each woman had made.  It showed a total
income
between January and 17 June 2010 of R254 600.
38.
All three premises had similar lay-outs.
There was a reception area and the rooms were equipped with, amongst
other things,
toilet paper, massage creams, condoms, towels and bins.
39.
The officers arrested the first and second
respondents on suspicion of brothel keeping, other offences under the
Sexual Offences
Act and ‘
human
trafficking
’
(presumably
trafficking in persons for sexual purposes by a person as
contemplated in
section 71(1)
or (2) of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
).
40.
Later that day, after the first and second
respondents had been warned of their constitutional rights, in
particular their right
to remain silent, both of them chose to make
signed written statements.
41.
The first respondent’s signed statement of
17 June 2010 reads as follows:
‘
I own the house at 18 Perth
road and I live there with my children.
I
also own 78 Broad road Wynberg, from where I operate one of my
businesses
.
I then rent
148 Belvedere road Claremont for about six months, from this address
I also run a business
.
I also rent
90 Constantia road Wynberg
.
I have 5
girls working from each one of the 3 business addresses
.
The girls all approach me from word of mouth and
I
provide them with a room and the agreement is that they can use the
room and everything they earn in the room I get 50%
.
Some of them are also paying a small rental to me.
I
am aware of them providing massaging and other services including
sex
.  I
can never be sure that I am getting my fair share.  I also want
to put it on record that I do not have all the details
or controls of
what happens behind the closed door.  The Constantia road trades
under the name of Aromatics Salon.  The
Belvedere road one is
Nikki’s Angels.  The Broadroad business is also called
Aromatics.
I
keep a book at each one of the businesses where I have them record
their work on a daily basis
.
I have a computer at 78 Broadroad, one at 90 Constantia and one at
home that I do not use for business.  The girls
are free to come
and go as they please.  When I interview them I enquire about
their work experience and they normally come
from another agency.
I want to put it on record that I have these girls living at these
mentioned business premises.
Ideally
the client arrives, selects a girl pays for what he wants, goes to a
room and gets what he paid for.  The charge R400
is for an hour
and three hundred for ½ hour.  The client can get
anything he wants for R400-00
.
My daughter is not a partner in the business except that the House at
Belvedere road is on her name and the business Nikki’s
Angels
is also her name.  The only other income I have besides the 3
venues is that I sell anything I can buy informally.
I declare
my income from the businesses and pay tax on it.  I therefore
believe that it is a legitimate businesses and
I do not think I am
doing anything wrong.  I was previously raided by the City law
enforcement and they did not close me down.
This happened about
3 months ago.  I am a family person who wants to make an honest
living.  I was going to close
down the business and start
up a new business soon.  The girls place adds in the papers and
pays for it.  Some of them
also advertise on the internet.
I passed standard 4 at school and worked at a number of places.
I started
these business about 4 years ago
.
When the
girls need to travel to clients I transport them myself
.
This seldom
happens
.
I use my
Toyota rav which I own to do the transport
.
This is a very unstable business.
My
share varies between R25 000 and R30 000 per month
.
I have a son of 10 years old and a daughter of 22 years.  I am
not married.  I do not force anyone to work
’
(my underlining).
42.
The underlined parts of the first respondent’s
statement strongly support the NDPP’s allegation that she is
probably
guilty of the offence of keeping brothels at 7... B......
Road, W...., 1... B..... Road, C...... and 9..... C...... Road,
W.......,
and of the offence of knowingly living on the earnings of
prostitution.
43.
The second respondent’s signed statement of
17 June 2010 reads as follows:
‘
I want to put it on
record that the address at 148 Belvedere road is leased in my name
and the business is called Nikki’s
Angels also after me
.
There are 2 girls that live at the house and they pay R250-00 per
week rent and 50% of their earnings.  My mother supply
them with
food and toiletries.
I help
my mother to run the businesses and she pays me R500 per week
whenever she can
.
My mother also has businesses at Broad road and Constantia road.
The girls
offer massage as well as sex to clients and my mother get 50% of
everything
.
My mother sends them for medical tests and drug tests.  I own a
Golf 4 valued at about R35 000 and I live with
my mother.
I do not think there is anything wrong with this business but my mom
was going to close it.  The girls can
leave whenever they want
to.
We
sometimes deliver girls to a client and it is called an out booking
.
This cost extra
’
(my
underlining).
44.
The underlined parts of the second respondent’s
statement strongly support the NDPP’s allegation that both
respondents
are probably guilty of the offence of keeping a brothel
at 148 Belvedere Road, Claremont, and of the offence of knowingly
living
on the earnings of prostitution.
45.
On 17 June 2010 the officers also obtained other
written statements, notably a statement from the man found having
sexual intercourse
at the Constantia Road premises and statements
from the fifteen women found at the three premises.
46.
In his statement to the SAPS the man said he first
became aware of the place two months earlier when he saw an advert in
a newspaper.
He said that on 17 June 2010 he had booked the
woman who he had dealt with on his only previous visit and he paid
her R300 for
sexual intercourse during a half hour session.
47.
Some of the statements by the fifteen women
implicated them in the offence in s 20(1A)(a) of the Sexual
Offences Act while
a few were exculpatory or at least partly so.
That section provides that any person 18 years or older who has
unlawful carnal
intercourse or commits an act of indecency with any
other person for reward shall be guilty of an offence.  As to
the restricted
meaning of ‘
unlawful
carnal intercourse
’
, namely it is
confined to commercial sexual intercourse, see the discussion in
paragraph 26
above.  The Sexual
Offences Act does not define ‘
act
of indecency
’
.  A
description
is not necessary for purposes
of this judgment because it undoubtedly includes the giving of
so-called pelvic massages (see
S v H
,
supra
,
S
v P
,
supra
and
S v D
,
supra
).
For present purposes it is also not necessary to describe in detail
the contents of all the women’s statements, which
are in the
form of affidavits.  Instead I shall give two excerpts from each
type of statement.  Together they give a
general idea of how the
women came to work at the first respondent’s businesses, the
nature of their work there and their
payment arrangements with the
first respondent.
48.
One of the statements implicating the person
making it in the offence in s 20(1A)(a) of the Sexual Offences
Act contains the
following:
‘
3.
Om en by 1 x maand gelede het ek ‘n advertensie in the Cape
Argus
gesien, “Ladies Required” ….
4.
Ek is na Bellverdere tr. nr. 148, Claremont waar ek ‘n k/v
[kleurling
vrou] ek kan nie haar naam onthou nie, my ontmoet het.
Sy het aan my verduidelik vir een uur vir ‘n massage en ‘n

happy ending.  Dit is pulvec massage.  R300-00 vir ‘n
half uur en R400-00 vir een uur.  R200-00 gee ek vir
die
besigheid en R200-00 hou ek vir my self.
5.
Om en by 3 weke gelede het Roxy oorgeneem as bestuurderes.  As
kliënte
na die huis skakel … vir ‘n afspraak.
As die kliënt daar opdaag, gaan hy na ‘n kamer.  Dan
gaan
die meisies een vir een na hierdie kamer.  Dan sal die
kliënt besluit wie hy wil hê.  Die kliënt betaal

die seks werker persoonlik na die diens. Dan sal die sekswerker weer
haar deel aan die bestuurderes betaal, nl 50%.  My ure
is sleg
vanag 09:00 tot 15:00 in die dag, en twee aande in die week tot
21:00.
6.
… Ek weet wat seks werk behels en ek doen dit uit my eie vrye
wil.
’
49.
Another of the statements implicating the person
making it in the offence in s 20(1A)(a) of the Sexual Offences
Act contains
the following:
‘
2.
Ek werk tans 3 maande as ‘n “masseuse” te 90
Constantiaweg,
Wynberg.  Dit behels sensuele massage, asook Body
to Body massage.  Bg. perseel behoort aan Selena Salie.  Ek
werk
vir haar.  My werk behels verder ook om seks met kliënte
te hê, op hul versoek teen vergoeding.
3.
Ek is oorspronklik van Namakwaland en het ongeveer 3 maande terug in
die
Argus gesien dat meisies benodig word vir ‘n
Massage-parlor.  Ek het toe die telefoonnommer wat ge-adverteer
was gekontak
en met ‘n vrou gepraat wat haarself bekend gestel
het as Selina.
4.
Sy het vir my gesê dat sy meisies benodig vir massage-werk en
dat
ek af moet kom Kaap toe sodat sy vir my kan sien.
5.
Toe in die Kaap aankom, het ek Selena gespreek, waarop sy my
ouderdom,
ID Boek gevra het en toe vir my gesê het dat ek reg
is vir die werk.
6.
Sy het toe vir my gesê dat die werk behels Body to Body
massages,
pelvis-massages ens.  Op die stadium het sy nie
melding gemaak dat ek seks met enige iemand moes hê nie.
7.
Ek het wel seks met kliënte gehad.  Selena het ook kennis
gedra
dat ek en die ander meisies seks met kliënte gehad het.
8.
My kliënte behels Internet- asook huiskliënte.  My
Internet-kliënte
het ek (R500) Vyfhonderd rand gevra en my
huiskliënte het ek (R400) Vierhonderd rand gevra.  Ek het
dan die helfte van
my inkomste vir Selena gegee.  Die res van
die geld was myne, wat ek gaan bank het.
9.
Ek moes verder R300 per week vir Selena betaal vir my verblyf,
toiletware
ens.  Ek moes my eie klere en kos koop.
’
50.
One of the statements which is exculpatory as far
as having sexual intercourse is concerned (but which includes an
admission of
giving so-called pelvic massages), contains the
following:
‘
2.
On July 2009 I picked an ad from either Cape Times, or Cape Argus
from
the adult entertainment section.  I then phoned a lady who
had advertised herself there and she gave me directions to no. 78

Broadway Road, Wynberg, which was where she worked from as a
masseuse.
3.
I then proceeded to the house as mentioned above and started to work
as
a masseuse and I was doing Indian head massage, Swedish massage,
Tantric massage and pelvic massage.  I did not get any training

because I had experience from where I was working before at Cupid,
Sea Point.
4.
The verbal agreement with the owner of the business is that you get
50%
of the service fee.  The amount clients pay for massage is
R300-00.  I got R150-00 and give the other R150-00 to
the
manager.
5.
I then became a manager in September 6, 2009 on a Sunday.  My
duties
consisted of collecting the owner’s share that is 50%
and answering the phone and writing up the book and make sure the
place
is neat and tidy.  I get paid R500-00 a week but must
still work for myself to make more money.
6.
The rule is that you charge the client R300-00 for massage and
whatever
else happens in the room like for example sex is between the
client and the girl.  The extra money the girl charged for sex

becomes hers and as the manager I am not interested to know how much
she got.  It is not condoned to charge for sex or have
sex but
it does happen.
…
.
11.
All the three places of Selina Salie, namely the Secrets, Nikkies and
Aromatic Salon
are massage parlours.  What the girls do extra
behind closed doors with clients remains their business.  Sex as
I have
mentioned before is not condoned even though in my
understanding it does take place.
’
51.
Another of the exculpatory statements contains the
following:
‘
2.
To get this place I read an article on the local newspaper Cape Times
and
the articles read as follows, ladies required for employment for
massage at Aromatic Salon and Secret.  I became interested

because I wanted the job.  I phoned the place and applied for
the job and was invited for interview.
3.
There I was interviewed by the owner of premises Selina and I went
alright
with my interview.  Selina showed me as to how they
operate and asked me if I would stay in the premises or I would stay
outside.
I told her that I also needed accommodation as well
because I didn’t have a place to stay.  I then went to
fetch my
belongings at my former boyfriend’s place at Table
View and I moved it.  Then I started operating massaging the
clients
and most of them are males.
4.
You would find clients who would during the process ask to have
sexual
intercourse with you.  It would depend to you whether you
do agree to have sexual intercourse with the man or not.  That

would be your extras and has got nothing to do with business.  I
never had sex with clients not at all.  We charge and
amount of
R300-00 massage for half an hour and R400-00 for an hour.  The
half of the amount I charge the client goes to Selina
the owner of
the house and the other half is mine.
’
The
first respondent’s answer to the NDPP’s evidence
concerning the offences
52.
In her answering affidavit the first respondent
denies that any of the property was bought with the proceeds of
unlawful activity
or was used as an instrument of the offences
because, she says, she was not complicit in keeping brothels at the
three premises
raided on 17 June 2010 in contravention of s 2 of
the Sexual Offences Act she did not knowingly live on the earnings of
prostitution
at those premises in contravention of s 20(1)(a) of
the Sexual Offences Act.
53.
The first respondent elaborated on her defence in
various passages in her answering affidavit, including (notably) the
following:
53.1.
‘
The business was run by my staff on the
premises and I would only be on the premises to collect my share of
the fees.  I cannot
comment on what the ladies do behind the
closed doors of the rooms as I have no knowledge regarding this.
’
53.2.
‘
The women were working as masseuses;
whatever they did for extra fees is their own business.
’
53.3.
‘
If the girls offered sex as an extra fee
I knew nothing about it and I received no portion of that fee.
’
53.4.
‘
The diaries show fees charged for the
massages; any extra fees the women had charged the clients for sex
would not be in the diaries
as I had nothing to do with that.
’
5
3.5.
‘
The R400 for an hour and R300 for half
an hour are the fees for a massage.
’
53.6.
‘
I very rarely interacted with the
masseuses at the premises, the only person I would interact with was
the manageress and that was
for a few minutes a day when I came to
collect my share of the massage fees.
’
53.7.
‘
Upon my arrival [at the Belvedere Road
premises on 17 June 2010] I told the police present that the business
was a massage parlour,
and if there were any other activities
happening on the premises I would have no such knowledge of it as it
would be the girls
themselves acting in their private capacity and
for their own personal gain.
’
53.8.
‘
I deny … that I used my Toyota
Rav to transport prostitutes to clients.  The ladies were, to my
knowledge, masseuses
and as far as I was concerned did not offer sex
to clients.  I rarely used my Toyota Rav to transport the ladies
home, or
to a taxi rank, or to provide them with a lift to the
shops.  Most of the ladies, however, had their own transport to
use
as they pleased.
’
53.9.
‘
The staff would use their own transport
to travel to clients.
’
54.
The gist of the first respondent’s defence,
therefore, is that she was running legitimate massage parlours at the
three premises,
she did not know whether any of the masseuses had
sexual intercourse with their clients for money, if they did that was
their private
business and had nothing to do with her and she never
used her Rav 4 motor vehicle to transport prostitutes to
clients.
55.
In
Fakie NO v CCII
Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) paras 55-56 Cameron JA described the modern approach to motion
proceedings where there are contradictory affidavits by applicants

and respondents, as follows:
‘
55.
That conflicting affidavits are not a suitable means for determining
disputes of fact
has been doctrine in this court for more than 80
years [
Frank
v Ohlsson’s Cape Breweries Ltd
1924 AD 289
at 294, per
Innes CJ].  Yet motion proceedings are quicker and cheaper than
trial proceedings and, in the interests of justice,
courts have been
at pains not to permit unvirtuous respondents to shelter behind
patently implausible affidavit versions or bald
denials.  More
than 60 years ago, this Court determined that a Judge should not
allow a respondent to raise “fictitious”
disputes of fact
to delay the hearing of the matter or to deny the applicant its order
[
Peterson v
Cuthbert & Co Ltd
1945
AD 420
at 428, per Watermeyer CJ].  There had to be “a
bona fide dispute of fact on a material matter” [
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1162-4, per Murray AJP].  This means that an
uncreditworthy denial, or a palpably implausible version, can be
rejected
out of hand, without recourse to oral evidence.  In
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984 (3) SA 623
(A) at
634-5, per Corbett JA], this Court extended the ambit of
uncreditworthy denials.  They now encompassed not merely those

that fail to raise a real, genuine or bona fide dispute of fact but
also allegations or denials that are so far-fetched or clearly

untenable that the Court is justified in rejecting them merely on the
papers.
56.
Practice in this regard has become considerably more robust, and
rightly so.
If it were otherwise, most of the busy motion
courts in the country might cease functioning.  But the limits
remain, and however
robust a court may be inclined to be, a
respondent’s version can be rejected in motion proceedings only
if it is “fictitious”
or so far-fetched and clearly
untenable that it can confidently be said, on the papers alone, that
it is demonstrably and clearly
unworthy of credence.
’
56.
In
Buffalo Freight
Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another
2011 (1) SA 8
(SCA) para 19 Shongwe JA, following
Truth Verification Testing Centre CC
v PSE Truth Detection CC and Others
1998
(2) SA 689
(W) 698H-J, held that if a respondent’s version is a
relatively detailed one, not just a bald and hollow denial, that is
no bar to the application of the ‘
robust
’
approach to the resolution of disputed issues on
paper (as to which see cases such as
Soffiantini
v Mould
1956 (4) SA 150
(E))
which is alluded to in
Fakie NO
,
supra
,
para 56.
57.
If, on the other hand, the respondent’s
allegations raise a genuine dispute of fact and are not so
far-fetched or clearly
untenable that they may be rejected on the
papers alone, the matter must be decided on one of two bases.
Either the court
must take the facts asserted by the respondent
together with the facts asserted by the applicant which are either
admitted or not
disputed by the respondent, or the disputed issue(s)
may be referred to oral evidence or the matter as a whole may be
referred
to trial under Uniform Rule 6(5)(g).  See
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 12 citing
Plascon-Evans
Paints Ltd
, supra,
634E-635C and
Ripoll-Dausa
v Middleton NO and Others
[2005] ZAWCHC 6
;
2005 (3)
SA 141
(C) 151A to 153C.
58.
To sum up on this aspect, subject to the
possibility of a referral to oral evidence or trial under Uniform
Rule 6(5)(g), an applicant,
like the NDPP, who seeks final relief on
motion must, in the event of a factual conflict, accept the version
set up by the respondent
unless the latter’s allegations are,
in the opinion of the court, not such as to raise a genuine dispute
of fact or are so
far-fetched or clearly untenable that the court is
justified in rejecting them merely on the papers.
59.
At the hearing Mr Kagee confirmed the NDPP was not
seeking a referral to oral evidence because, in his submission, the
first respondent’s
allegations in her answering affidavit are
indeed not such as to raise a real, genuine or
bona
fide
dispute of fact or they are so
far-fetched or clearly untenable that they should be rejected merely
on the papers.
60.
For the reasons which follow, I agree with this
submission.
61.
The main difficulties with the first respondent’s
defence are, firstly, that it is inconsistent with both her and the
second
respondent’s statements of 17 June 2010 and in her
answering affidavit she does not explain adequately why she and the
second
respondent said what they did on 17 June 2010 and, secondly,
it is inherently improbable.
62.
In her answering affidavit the first respondent
does not dispute that as a matter of fact she and the second
respondent made the
statements quoted in paragraphs 41
and
42
above.  On the contrary, she
‘
notes
’
the
contents of the paragraphs in the affidavit by the investigating
officer saying the respondents were warned of their constitutional

rights, particularly their right to remain silent, they chose to give
statements and their statements were reduced to writing and
are the
ones annexed to that affidavit.
63.
In her affidavit the first respondent also does
not dispute that she and the second respondent made the statements
freely and voluntarily.
Had she wished to do so, she would have
had to deal with the fact that the document containing each of their
statements includes
a pre-printed page in English and Afrikaans on
which their names have been added and which they have signed.
The form contains
the following declarations by each of them (I quote
the English statements in the form following the first respondent’s
statement,
striking through the words deleted in hand-writing on the
form):
63.1.
‘
I
was
/was
not assaulted or threatened in any way to induce me to make the above
statement and/or answer questions.
’
63.2.
‘
I
am
/am
not at present under the influence of any alcoholic beverage and/or
narcotic related substance.
’
63.3.
‘
I am/
am
not
satisfied that
everything I stated was noted down correctly
.’
63.4.
‘
I am/
am
not
satisfied that this
statement and/or answers reflect my version regarding the matter.
’
63.5.
‘
I
have
/do
not have objections to the manner in which the statement was taken
down and/or questions were put to me.
’
64.
The passages in the first respondent’s
affidavit in which she disputes her statement of 17 June 2010 read as
follows:
64.1.
‘
I never admitted to the police that I
knew the girls had sexual intercourse with the clients, neither did I
ever tell the girls
they must have sexual intercourse with the
clients.  I am disputing the statement allegedly made by me to
the police contained
as A19 of the police docket.
’
64.2.
‘
I deny that I ever claimed to know the
girls provided sexual intercourse for money.  The police officer
Mr Innes put that into
my statement without my consent.  I deny
that I ever claimed that I was worried that I was never getting a
fair share, my
take is from the massage and whatever the girls do
otherwise has nothing to do with me.
’
64.3.
‘
I never admitted to running a brothel
business.  As stated above, the businesses were massage
parlours.
’
65.
If the first respondent wants her version in her
answering affidavit to be believed, she cannot simply say in her
answering affidavit,
as she did in the passage quoted in paragraph
64.1
above, that she is ‘
disputing
the statement allegedly made by me to the police
’
,
without indicating the grounds on which she is doing so.
66.
The first respondent does not provide an adequate
answer to the obvious question arising from a comparison between her
version in
her answering affidavit and what is stated in her signed
statement of 17 June 2010.  Why did she sign her statement,
including
the pre-printed page with the declarations quoted in
paragraph 63
above, when it contained the
following series of admissions:  ‘
I
am aware of them [the women working in her businesses] providing
massaging and other services including sex
’
,
‘
The charge R400 is for an hour
and three hundred for ½ hour.  The client can get
anything he wants for R400-00
’
,
‘
I provide them with a room and
everything they earn in the room I get 50%
’
,
‘
When the girls need to travel to
clients I transport them myself
’
and
‘
I use my Toyota rav which I own
to do the transport
’
?
(Similarly, why too did the second respondent say in her statement
‘
The girls offer massage as well
as sex to clients and my mother gets 50% of everything
’
and ‘
We
sometimes deliver girls to a client and it is called an out
booking
’
?)
67.
The first respondent’s answer in her
answering affidavit appears from the passage quoted in paragraph 64.2
above.  It is that the police officer who
wrote out the statement wrongly inserted an admission she had not
made, namely that
she knew the women were providing sex for money.
The first respondent’s answer is inadequate because she does
not explain
why at the time she declared she was satisfied everything
she had said was noted down correctly and the statement reflected her

version regarding the matter.
68.
Turning to the inherent improbability of the first
respondent’s defence.  It will be recalled she says: she
was a fleeting
daily visitor to the three businesses; when she was
there she interacted with the manageress and only rarely with the
masseuses;
and she did not know what they did with their clients
behind closed doors and in particular whether any of them they had
sex for
money with their clients.  It is not plausible that the
first respondent’s involvement in the businesses was as limited

as she describes.  What did the manageress of each business,
including the second respondent (who is the first respondent’s

daughter), know about what was really going on?  And what did
they tell her about the businesses they were managing?
Given
the obvious risks posed to the first respondent and her businesses if
the women (on her version) offered sex for money in
addition to
legitimate massages, why did she not institute any controls aimed at
ensuring that nothing untoward happened while
the women were alone
with their clients in the rooms?
69.
The corollary of the first respondent’s
assertions that she did not know about any illegal activity is that
she believed her
businesses were legitimate, something which in fact
she asserted in her statement of 17 June 2010 with reference to her
tax affairs
(a matter to which I return below).  However, at
best for the first respondent, any such belief on her part (which I
strongly
doubt in fact has ever existed), is the result of her
deliberately turning a blind eye to what was really happening between
the
women and their clients.  As
Greenberg
JA said in
R v Myers
1948
(1) SA 375
(A) at 382, quoting
Halsbury’s
Laws of England
, a belief is not honest
which ‘
though in fact entertained
by the representor may have been itself the outcome of fraudulent
diligence in ignorance - that is, of
a wilful abstention from all
sources of information which might lead to suspicion, and a sedulous
avoidance of all possible avenues
to the truth, for the express
purpose of not having any doubt thrown on what he desires and is
determined to, and afterwards does
(in a sense) believe
’
.
70.
Turning to what the first respondent said about
her tax affairs in her statement of 17 June 2010, for the reasons
which follow it
is another pointer to her dishonesty as a witness.
It will also be recalled that in her statement the first respondent
gave
the following exculpatory explanation.  She said she
believed the businesses she was running at the three premises raided
that day were legitimate and she was not doing anything wrong because
she declared her income from the businesses and paid tax on
it.
71.
The NDPP’s founding papers however point out
that information concerning the respondents’ tax affairs was
requested
from the South African Revenue Services (‘SARS’)
in terms of s 71(1) of POCA.  According to an affidavit of

6 October 2010 from Mr R C Terblanche, a Senior Manager:
Enforcement Risk Planning at the SARS, the first respondent was
registered for income tax but her returns for the 2006 to 2009 tax
years were outstanding and she consequently had not declared
any
income to SARS.  Mr Terblanche added there is no record of the
second respondent on the income tax or value added tax
register.
72.
In her answering affidavit the first respondent
said because she left school in standard 4 and knew nothing about tax
matters, her
then partner, one Christopher Hannival, attended to her
tax affairs and she believed Mr Hannival ‘
had
dealt with everything
’
.  The
first respondent did not however put up an affidavit from Mr Hannival
explaining why no income tax returns for
the first respondent for the
2006 tax years onwards have been filed.  Moreover, in her 17
June 2010 signed statement the first
respondent said that she herself
had declared her income from her businesses and paid tax on it.
What the first respondent
noticeably fails to do is give any reason
why she said that.
73.
In my view by the time the first respondent came
to make her answering affidavit in these proceedings, which as stated
was in mid-2013,
she realised she and the second respondent had made
a tactical blunder by making the statements they did on 17 June 2010
in which,
in effect, they admitted running brothels at the three
premises which had been raided earlier that day and living off the
proceeds
of the prostitution at those brothels.  It appears she
then decided her best hope was to deny any knowledge of any of those

illegal activities.  However, the cumulative effect of the
problems with the first respondent’s factual allegations
in her
answering papers is that her version is clearly untenable.
THE
PROPERTY
The
NDPP’s evidence concerning the property
74.
The facts concerning each item of property which
the NDPP asks be declared forfeit to the State, as they emerge from
the NDPP’s
affidavits and the annexures supporting the
affidavits, are as follows.  (The evidence referred to below
concerning the values
of the immovable properties in March 2014, the
trade and retail values of the motor vehicle in February 2014 and the
outstanding
amounts on the loans secured by mortgage bonds over the
immovable properties in March 2014, comes from the reports dated 24
and
25 March 2014 by the
curator bonis
.
The parties were afforded the opportunity to make supplementary
written submissions regarding the contents of those reports.

Both of them elected not to do so.)
The money
in the first respondent’s Standard Bank account numbers
275 717 712 and 624 816 095
75.
The first respondent opened Standard Bank account
number 275 717 712 in January 2002.  Between 2002 and
2006 the
first respondent made relatively modest deposits into this
account, namely deposits totalling R28 150 (2002), R15 441

(R2003), R8 450 (2004) and R48 450 (2005).  From 2006
until mid-2010, i.e. which corresponds with the period of
about four
years during which according to the first respondent’s
voluntary statement she had been running the businesses
at the three
premises raided on 17 June 2010, the amounts deposited each year were
significantly higher.  There were deposits
totalling R189 610
(2006), R312 060 (2007), R386 402 (2008), R341 032
(2009) and R137 350 (1 January
to 12 June 2010), i.e.
R1 366 454.  The first respondent used debit orders
from this account to pay the monthly
loan repayments on the money she
had borrowed from Standard Bank and Absa Bank against the security of
mortgage bonds over the
Broad Road property and the Perth Road
property.  On 31 August 2010 the credit balance in this account
was R24 706.34.
When the preservation order was granted on
17 January 2012 the credit balance in this account was R17.40.
In his report dated
1 March 2012 the
curator
bonis
said he anticipated that amount
would be used by bank charges and the account would be closed.
Given that the bank service
fees on the statement for the month ended
31 August 2010 far exceed that amount, it is safe to assume that
has happened.
It follows that if a forfeiture order is
warranted, it cannot be made in respect of any money in this
account.  This was accepted
by counsel for the NDPP at the
hearing.
76.
The first respondent opened Standard Bank account
number 624 816 095 on 12 January 2010 by making a cash
deposit
of R20 000.  Following a series of further deposits
totalling R140 000 later in January and in February, March and

April 2010, the credit balance in this account on 30 April 2010 was
R160 881.  In his 1 March 2012 report the
curator
bonis
said this account had been closed
by 17 January 2012 when the preservation order was granted.
It follows that if a forfeiture
order is warranted, it cannot be made
in respect of any money in this account either.
The money
in the second respondent’s First National Bank account numbers
622 295 579 81 and 620 890 204 09
77.
The second respondent opened First National Bank
account number 6............... on 23 June 2009.  Between that
date and 31
August 2010 there were cash deposits into this account
totalling R80 500.  The second respondent used this account
to
pay the monthly loan repayments on the money she had borrowed from
the Standard Bank against the security of a mortgage bond over
the
Cuckoo Street property.  On 23 September 2010 the balance in
this account was R16.77.  In his 1 March 2012 report
the
curator
bonis
said the credit balance in the
account was R10.49, which would be used up by bank charges whereupon
the account would be closed.
For the reason given earlier, I
shall assume that has happened and if a forfeiture order is warranted
it will not extend to any
money in this account.  This too was
accepted by counsel for the NDPP at the hearing.
78.
The second respondent’s First National Bank
account number 6................... showed little activity and was
closed on 6
June 2009 with a nil balance.  Therefore any
forfeiture order will not extend to any money in this account either.
The Broad
Road property
79.
On 4 May 2004 the first respondent bought the
Broad Road property for R450 000.  On 25 August 2004 the
transfer to her
of the property was registered and a mortgage bond of
R300 000 over the property was registered.  On 25 May 2007
a new
mortgage bond over the property of R700 000 in favour of
Sanlam Home Loans Guarantee Co (Pty) Ltd (administered by Absa Bank)

was registered and the earlier bond was cancelled.  As stated
the first respondent used debit orders from her Standard Bank
account
number 2.................. to pay the monthly loan repayments on the
new mortgage bond account.  (There is nothing
in the record
about the monthly loan payments on the R300 000 mortgage bond
account or about the balance of that account when
it was replaced by
the new account.)  Between November 2007 and August 2009 (the
only period prior to 17 June 2010 for which
there are statements in
the record) the monthly repayments on the new mortgage bond account
ranged between R5 415 and R7 360.
In addition, in the
year ended 28 February 2009 the first respondent made additional
payments totalling R50 000 into this
bond account.
According to the bondholder, on 20 March 2014 the amount owing
on the new bond account was R599 261.
According to a
Windeed automated valuation report the property was worth R880 000
on 24 March 2014.  Therefore, the first
respondent’s
‘equity’ in the property is R280 739.
80.
The first respondent used the Broad Road property
for one of her three brothels.
The Perth
Road property
81.
On 18 January 2007 the first respondent bought the
Perth Road property for R1 350 000.  She paid a
deposit of R370 000,
part or perhaps all of which came from the
new mortgage bond registered over the Broad Road property in May 2007
(as to which see
the first respondent’s evidence about this
discussed in paragraph 88
below).  On
12 May 2008 the transfer of the Perth Road property to her was
registered and a mortgage bond over the property
of R980 000 in
favour of the Standard Bank was registered.  As stated the first
respondent used debit orders from her
Standard Bank account number
2............ to pay the monthly loan repayments on this mortgage
bond account too.  Between
April 2008 and October 2010 the
monthly repayments ranged between R8 741 and R12 440.
She did not make any additional
payments.  On 28 October 2010
the closing debit balance in this mortgage bond account was
R943 515.50.
According to the bondholder, on 24 March
2014 the amount owing on this mortgage bond account was R971 012.
According
to a Windeed automated valuation report the property was
worth R1 450 000 on 24 March 2014.  Therefore, the
first
respondent’s ‘equity’ in the property is
R478 988.
82.
No unlawful activity is known to have taken place
at the Perth Road property.
The Cuckoo
Street property
83.
On 25 February 2010 the second respondent bought
the Cuckoo Street property for R250 000.  She paid a
deposit of R50 000.
On 1 June 2010 the transfer to her of
the property was registered and a mortgage bond over the property of
R200 000 in favour
of the Standard Bank was registered.  As
stated the second respondent used debit orders on her First National
Bank account
number 6.......................... to pay the monthly
Standard Bank mortgage loan repayments.  The monthly payments
ranged
between R2 064 and R2 129.  According to the
bondholder, on 24 March 2014 the amount owing on this mortgage

bond account was R239 550.  According to a Windeed
automated valuation report the property was worth R350 000 on
24
March 2014.  Therefore, the second respondent’s ‘equity’
in the property is R110 450.
84.
The NDPP does not allege that any unlawful
activity has taken place at the Cuckoo Street property, which has
been the second respondent’s
home since she acquired it.
The Rav 4
motor vehicle
85.
In early 2005 the first respondent acquired the
Rav 4 motor vehicle for R174 264 using finance from Toyota
Financial Services.
With the exception of an initial debit
order of R3 227.12 paid on 1 May 2005, between May 2005 and
September 2007 the first
respondent made monthly cash repayments
ranging between R2 000 and R10 000 towards this loan.
Between October 2007
and August 2009 first respondent paid
monthly instalments of R3 227.12 by debit order from her
Standard Bank account number
2.................  By 25 August
2009 the first respondent had paid for the vehicle in full.  In
February 2014 the vehicle
had a trade value of R78 700 and a
retail value of R83 900.
The
first respondent’s answer to the NDPP’s evidence
concerning the property
86.
In her answering affidavit (which as stated
earlier was delivered in July 2013) the first respondent says she
resides at the Broad
Road property with her son, who she says was
twelve years old in July 2013 when she made her affidavit and suffers
from a learning
disability.  She then says the Broad Road
property should not be sold because she requires it for purposes of
housing for
herself and her son and if it is sold they will have
nowhere to go.  I note, however, that in the affidavit by a
candidate
attorney from the first respondent’s attorneys dated
17 March 2014 supporting the application for condonation for the

late filing of her counsel’s heads of argument, the deponent
says the first respondent is now residing in Gauteng after recently

getting re-married.  Her counsel repeated this in court at the
hearing of this matter.
87.
Further as to the Broad Road property, in her
answering affidavit the first respondent says at the time when she
acquired the Perth
Road property, which happened on 25 May 2007, she
was running a hair-dresser at the Broad Road property on a part-time
basis.
Once again, the first respondent has provided no proof
of her having run a hair-dressing business there.  She also does
not
mention receiving any income from a hairdressing business in her
statement of 17 June 2019 or in the parts of her affidavit dealing

with her sources of income.  I consequently do not accept first
respondent’s
ipse dixit
that the Broad Road property was used for a
part-time hairdressing business in 2007.  Instead, I shall
approach this matter
on the basis that the Broad Road property has
been used as a brothel from 2006 when, according to the first
respondent’s
statement of 17 June 2010, she started her
brothel-keeping business.
88.
In her answering affidavit the first respondent
alleges she took out a second mortgage bond of R500 000 over the
Broad Road
property and used the proceeds to purchase the Perth Road
property.  However, as appears from paragraph 79
above,
while it is correct the first respondent registered a new mortgage
bond over the Broad Road property on 25 May 2007 the amount
of the
new bond was R700 000 not R500 000 and the registration of
the new bond coincided with the cancellation of the
original bond of
R300 000 she had taken out on 25 August 2004.  It appears,
therefore, that part of the new bond (up
to R300 000) was used
to pay off the debt secured by the earlier bond.  Moreover, as
appears from paragraph 81
above, when on 18
January 2007 the first respondent bought the Perth Road property the
purchase price was R1 350 000,
she paid a deposit of
R370 000 and, thereafter, on 12 May 2008 she registered a
mortgage bond over that property of R980 000.

Consequently, at most the first respondent used R370 000 of the
proceeds of the loan secured by the new bond over the Broad
Road
property towards her purchase of the Perth Road property.
89.
Turning to the first respondent’s evidence
in her answering affidavit about her sources of income, she says she
made the large
number of cash deposits into her Standard Bank
accounts using income she had received from selling bulk clothing and
from an ‘old’
business she had with Mr Hannival called C
& S Shuttle and Tour.  She adds that the money paid into one
of the second
respondent’s First National Bank accounts was the
proceeds of her and the second respondent’s selling of bulk
clothing,
perfume and ‘
GHD
products
’
and was also money
earned by the second respondent and her boyfriend who earned it from
working at the first respondent’s
businesses.  She also
says some of the money paid into that bank account was used by the
second respondent to purchase the
products to sell.  Finally she
says she used the proceeds of the sale of another vehicle (a
Volkswagen Golf 4) to pay the
deposit on the Rav 4 and some of the
instalments, and that the rest of the instalments were paid using
money she received from
selling the bulk clothing, perfume and ‘
GHD
products
’
.
90.
The first respondent has provided no evidence to
substantiate her allegations that she and the second respondent sold
perfume and
‘
GHD products
’
,
that she earned income from C & S Shuttle and Tour and that she
used the proceeds of the sale of the Volkswagen Golf 4 to
pay the
deposit on the Rav 4.  She has also given no explanation for not
providing that evidence or, for that matter, for
the absence of an
affidavit from the second respondent, the second respondent’s
boyfriend or Mr Hannival.
91.
The following remarks by this Court in
National
Director of Public Prosecutions v Van Der Merwe and Another
2011 (2) SACR 188
(WCC) paras 48-49 apply to the
first respondent’s failure to substantiate those allegations:
‘
48.
… the first respondent signally failed to say enough in his
affidavits to enable
the court to conduct a preliminary examination
and ascertain whether his denials, that the cash was the proceeds of
the drug-dealing
demonstrably carried on at the property, were not
fictitious.  He thereby failed to create a bona fide dispute of
fact on
the papers, in the sense famously described by Murray AJP in
Room Hire Co
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at
1165.
49.
As pointed out by Heher JA in
Wightman t/a JW Construction v
Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) ([2008]
2
All SA 512)
, para 13:
“
A real, genuine and bona
fide dispute of fact can exist only where the court is satisfied that
the party who purports to raise the
dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances
where a bare denial meets the
requirement because there is no other way open to the disputing party
and nothing more can therefore
be expected of him… When the
facts averred are such that the disputing party must necessarily
possess knowledge of them
and be able to provide an answer (or
countervailing evidence) if they be not true or accurate but, instead
of doing so, rests his
case on a bare or ambiguous denial the court
will generally have difficulty in finding that the test is
satisfied.”
The learned judge of appeal concluded that if the
content of answering   papers did not engage –
“
with facts which [the
respondent] disputes and reflect such disputes fully and accurately .
. . it should come as no surprise that
the court takes a robust view
of the matter”.
’
92.
The first respondent did however substantiate her
allegations concerning the bulk selling of clothing.  She did so
by attaching
a note from one Bronwyn Courie of BAT clothing which,
she said, confirmed she had bought clothing from Ms Courie.
The
note, which is not signed or dated and which does not refer to
the intervals between transactions, reads as follows:
‘
This is to certify that
Selena Salie has been buying stock from my clothing store from 2008
to the value of R5000.00 and up
’
.
93.
The NDPP obtained an affidavit dated 23 October
2013 from Ms Courie and filed it together with his replying
affidavit.
The relevant parts of Ms Courie’s
affidavit read as follows:
‘
2.
I have opened my business in 2000 and I buy and sell clothing.
I
have known Selena Salie since 2000.  Over this period up to
approximately four months ago, she has been buying clothes from
me.
3.
At times she would buy clothing totalling ±R5000 per month,
but
some months passed without her buying anything.
4.
Over the past three years she visited my business less frequently and
would
spend R200 to R300 once every three months.  I never got
the impression that she was buying clothing to re-sell.  She

would be selective in choosing garments that would fit her, whereas
my regular “bulk buying customers” would take more
of the
same item, but in different sizes.  My regular “bulk
buying” customers would also visit more frequently,
like weekly
and if I got in new stock.
5.
About three years ago Selena Salie enquired about the possibility of
buying
in bulk and selling clothing, but nothing further transpired
from that.  I have a discount system for my regular “bulk

buying customers”, but she was not one of them.
’
94.
Not only are the contents of Ms Courie’s
affidavit wholly inconsistent with the first respondent’s
version that the
money deposited into the bank accounts was income
from selling bulk clothing, but even if the first respondent had
bought approximately
R5 000 worth of clothing each month from Ms
Courie, who is the only supplier she identifies in her answering
affidavit, what
she does not explain is how she managed to translate
those relatively modest stock purchases into revenues in the four
years from
January 2006 to June 2010 totalling more than R1.5 million
(taking the deposits into her two Standard Bank accounts alone).

That she could do so is so implausible that without an explanation it
cannot be accepted as true.
95.
In this regard I also note that the deposits of
R1.5 million over that 54 month period translates into a monthly
average of just
over R27 500.  That is strikingly similar
to what the first respondent said in her statement of 17 June 2010
she earned
from the three businesses which had been raided that day.
She said her monthly share of the income of the women working there

‘
varies between R25 000 and
R30 000
’
.
96.
For these reasons I do not accept the first
respondent’s averment in her answering affidavit that the money
deposited into
her and the second respondent’s bank accounts
was income they derived from the bulk selling of clothes and other
items and
money she obtained from the C & S Shuttle and Tour
business.  The first respondent has put up no evidence to
substantiate
any of that income even though she was best placed to do
so, save for the evidence concerning the purchases from Ms Courie
which
Ms Courie in effect refuted in the affidavit she made at the
instance of the NDPP.
97.
There is no evidence from the second respondent
about her sources of income.
98.
I thus agree with the NDPP’s contention that
there is no evidence that, from 2006 onwards, either of the
respondents had any
income from legitimate sources with which to
service the loans they had taken to acquire the three immovable
properties and the
motor vehicle, and consequently the money they
used to make the necessary repayments emanated from the three brothel
businesses.
IS THE
PROPERTY THE PROCEEDS OF THE OFFENCES?
99.
The next issue for consideration is whether any or
all of the property is the proceeds of contraventions of ss 2 or
20(1)(a)
of the Sexual Offences Act.
100.
Section 1 of POCA defines ‘
proceeds
of unlawful activities
’
as
meaning ‘
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
’
.
101.
In
Cook
Properties
,
supra
,
para 64 Mpati DP and Cameron JA pointed out that in essence the
definition requires that the property in question be ‘
derived,
received or retained’ ‘in connection with or as a result
of’
unlawful
activities.  In para 66, applying
Lipschitz
NO v UDC Bank Ltd
1979
(1) SA 789
(A)
804C-G, they added that although the words ‘
in
connection with
’
may
literally have a very wide connotation, they are seldom used in
legislation in their wide, literal sense and they are not used
in
that sense in the definition of ‘
proceeds
of unlawful activities
’
.
When the judgment in
Cook
Properties
is
read as a whole, the implication is that the words ‘
in
connection with
’
in
the definition of ‘
proceeds
of unlawful activities
’
,
like the words ‘
concerned
in
’
in the
definition of ‘
instrumentality
of an offence
’
requires
a reasonably direct link between the crime committed and the property
to be forfeited.
102.
However, the definition of ‘
proceeds
of unlawful activities
’
makes it
clear that the connection between the proceeds and the unlawful
activities need not be direct.  The proceeds for instance

include benefits which someone legitimately acquired but retained by
or as a result of his or her offences.
103.
The NDPP submits that the first respondent was
able to retain the Broad Road property, the Perth Road property and
the Rav 4 motor
vehicle, and the second respondent was able to retain
the Cuckoo Street property, by using the proceeds of the three
brothel businesses.
104.
For the following reasons, I agree.  As
mentioned above, in her 17 June 2010 statement the first respondent
said she started
her ‘massage parlour’ businesses about
four years before then, i.e. sometime in 2006.  Although the
first respondent
acquired the Broad Road property and the Rav 4
vehicle before 2006 (in 2004 and 2005 respectively), she continued
repaying the
loans secured by those assets for several years after
2006.  In the case of the Broad Road property, which the first
respondent
refinanced in May 2007, the NDPP’s evidence shows
she continued with her monthly repayments until August 2009.  In
the
case of the Rav 4, the NDPP’s evidence shows the first
respondent continued with the monthly repayments until the loan was

paid off in October 2009.  The first respondent acquired the
Perth Road property in 2007 and continued with her monthly repayments

until October 2010.  The second respondent acquired the Cuckoo
Street property in early 2010 and thereafter made the required

monthly repayments.  It is reasonable to assume that had the
respondents fallen into arrears with the monthly repayments,
the
financial institutions from which they had borrowed the money would
have foreclosed and taken judgment against them for the
outstanding
amounts and, ultimately, succeeded in selling the immovable
properties in execution and, in the case of the motor vehicle,
taking
possession of it and selling it to repay the amount owing.
105.
I did not understand the first respondent’s
counsel to dispute that the NDPP has established that the three
immovable properties
and the motor vehicle are the proceeds of the
offences, if her client failed with her defences regarding the
offences and her other
sources of income.
106.
I conclude, therefore, that the Broad Road
property, the Perth Road property, the Cuckoo Street property and the
Rav 4 motor vehicle
are the proceeds of unlawful activities as
defined in POCA because they are assets which the respondents were
able to retain using
the money which they made in connection with or
as a result of the operation of the three brothels and their
consequent contraventions
of ss 2 and 20(1)(a) of the Sexual
Offences Act.
107.
In the light of this finding, it is not necessary
for me to consider whether the Broad Road property and the motor
vehicle are the
instrumentalities of those offences.
PROPORTIONALITY
108.
The first respondent’s counsel submitted
that even if the three immovable properties and the motor vehicle
were the proceeds
of the offences, none of them should be declared
forfeit to the State.  She submitted the forfeiture of any of
them would
be disproportionate and consequently infringe the right
not be arbitrarily deprived of property in section 25(1) of the
Constitution.
109.
The first question arising from this submission is
whether proportionality applies to the forfeiture to the State of the
proceeds
of unlawful activity under POCA.  As far as I am aware,
this question has not been squarely addressed in any judgment dealing

with Chapter 6 of the POCA because, as explained below, the
proportionality requirement was developed and has been applied in
cases in which the NDPP has sought the forfeiture to the State of
instrumentalities of offences not the proceeds of unlawful
activities.
110.
The second question arising from the submissions
concerning proportionality on behalf of the first respondent is
whether, if there
is a proportionality requirement for the forfeiture
to the State of the proceeds of unlawful activity under POCA, the
forfeiture
to the State of the property at issue in this matter would
meet that requirement.
Is
proportionality a requirement for the forfeiture of proceeds?
111.
The proportionality requirement was first
mentioned in
Cook Properties
,
supra
, by
the Supreme Court of Appeal (‘SCA’).  That judgment
related to three cases, all but one of which were confined
to the
forfeiture to the State of the instrumentalities of offences under
POCA.
112.
In the part of its judgment in
Cook
Properties
,
supra
,
paras 15-16 and 18 dealing with the forfeiture of instrumentalities
of property, the SCA made the general point that the forfeiture

provisions in Chapter 6 of POCA, including those relating to the
forfeiture of the proceeds of unlawful activities, must be
interpreted
consistently with the Constitution:
‘
15. … The Bill of
Rights provides that “no law may permit arbitrary deprivation
of property” [Bill of Rights
s 25(1): ‘No one may be
deprived of property except in terms of law of general application,
and no law may permit arbitrary
deprivation of property’.].
And a literal application of the provisions could well lead to
arbitrary deprivation.
The Constitutional Court has held that a
deprivation of property is arbitrary when the statute in question
does not provide sufficient
reason for the deprivation or is
procedurally unfair.  What “sufficient reason” is
may vary from statute to statute.
“Arbitrary”
deprivations are not limited to those that are non-rational: the
constitutional prohibition “refers
to a wider concept and a
broader controlling principle that is more demanding than an enquiry
into mere rationality”.
But the court held that
non-arbitrariness at any event requires a rational relationship
between the deprivation and the legislative
ends sought to be
attained through it. [
First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service and another
[2002]
ZACC 5
;
2002
(4) SA 768
(CC)
paras 61-66, 97-100.]  And in applying that standard, it is
apposite to bear in mind in the context of the forfeiture
legislation
that the aim of the property clause “is not merely to protect
private property but also to advance the public
interest in relation
to property”. [
First
National Bank
[2002]
ZACC 5
;
2002
(4) SA 768
(CC)
paras 50, 52, 64.]
This entails that the means
chapter 6 employs (forfeiture of instrumentalities of crime
and
proceeds of unlawful activities
)
must at the very least be rationally related to its purposes …
’
(my underlining)
.
113.
Later in the part of its judgment dealing with the
forfeiture of instrumentalities of property in
Cook
Properties
,
supra
,
the SCA described the purposes of Chapter 6 of POCA as ‘
complex
but inter-related
’
(para 16) and
then went on to say (para 18):
‘
The inter-related purposes
of chapter 6 … seem to us to include: (a) removing
incentives for crime; (b) deterring persons
from using or allowing
their property to be used in crime, (c) eliminating or incapacitating
some of the means by which crime may
be committed (“neutralising”,
as counsel put it, property that has been used and may again be used
in crime); and,
we would add, (d) advancing the ends of justice
by depriving those involved in crime of the property concerned
’
.
114.
In my view the purpose described in (a) relates to
the forfeiture to the State of the proceeds of unlawful activities
not the instrumentalities
of offences and the purpose described in
(d) includes both types of forfeiture.
115.
Finally as to the part of
its
judgment dealing with the forfeiture of instrumentalities of property
in
Cook Properties
,
supra
, the
SCA held that, in an application for the forfeiture of property as an
instrumentality of an offence, ‘
the
relationship between the purpose of the forfeiture and the property
to be forfeited must be close, that the purpose of the forfeiture

must be compelling and that a proportionality analysis may be
appropriate in which the nature and value of the property is assessed

in relation to the crime involved and the role it played in its
commission
’
(paras 30-31).
In support of this conclusion the SCA pointed out that the CC had
held in
First National Bank
,
supra
,
para 71 that there was ‘
broad
support in other jurisdictions for an approach based on some concept
of proportionality when dealing with deprivation of property’
(
Cook Properties
,
supra
,
para 30 footnote 35).
116.
Turning to the part of the SCA’s judgment in
Cook Properties
,
supra
,
dealing with the one case in which the NDPP had sought the forfeiture
of property contended to be the proceeds of unlawful activity,
the
SCA remarked that ‘
the risk of
unconstitutional application [of the definition of ‘proceeds of
unlawful activities’] is smaller
’
than
it is with the definition of ‘
instrumentality
of an offence
’
, which refers to
property ‘
concerned in
’
the commission or suspected commission of an
offence (para 66).  The SCA’s reason for considering there
is a lower risk
of the unconstitutional application of the definition
of ‘
proceeds of unlawful
activities
’
, as follows (also
para 66):
‘
As we showed earlier, the
forfeiture of a good deal of property that could literally be said to
be “concerned in” an
offence would run unconstitutionally
counter to the Act’s objectives of removing incentives,
deterring the use of property
in crime, eliminating or incapacitating
the means by which crime may be committed and at the same time
advancing the ends of justice.
In our view it is less likely
that forfeiture of benefits derived, received or retained ‘in
connection with or as a result
of any unlawful activity’ would
fail rationally to advance those objectives…
’
.
117.
The implication of this explanation is that in
some cases the forfeiture of the proceeds of unlawful activities will
fail rationally
to advance the objectives of Chapter 6 of POCA.
118.
The proportionality requirement for the forfeiture
to the State of the instrumentalities
of
offences under POCA was affirmed by the CC in
Prophet
v National Director of Public Prosecutions
2007
(6) SA 169
(CC) when it held (para 58):
‘
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 – weighing the severity of the
interference with individual rights to
property against the extent to
which the property was used for the purposes of the commission of the
offence, bearing in mind the
nature of the offence.
’
119.
In
Prophet
,
supra
, in
a generally-worded passage, the CC explained that a proportionality
requirement was necessary because the ‘
unrestrained
application of Ch 6 may violate constitutional rights, in particular
the protection against arbitrary deprivation of
property particularly
within the meaning of s 25(1) of the Constitution
’
(para 61).
120.
In my view there are three equivalences between
s 18(1) of POCA (which is located in Chapter 5) and s 50(1)(b)
of POCA
(which is located in Chapter 6) which, together, support the
proposition that proportionality is a requirement for the forfeiture

to the State of proceeds not just instrumentalities.
121.
Chapter 5 of POCA, more specifically s 18(1),
vests the criminal courts with a discretionary power to make a
confiscation order
against anybody convicted of any crime who
benefited from it or from a related offence.  When a defendant
is convicted of
a crime and the prosecutor applies for a confiscation
order, s 18(1) requires that the court first determine whether
the defendant
derived any benefit from the crime or from a related
offence.  If a court finds that the defendant has so benefited,
s 18(1)
confers on the court a discretion to make a confiscation
order against the defendant for payment to the state of ‘
any
amount it considers appropriate
’
over
and above the sentence it imposes on the defendant.  The
relevant part of s 18(1) reads as follows: ‘
the
court may, in addition to any punishment which it may impose in
respect of the offence, make an order against the defendant
for the
payment to the State of any amount it considers appropriate
’
.
122.
The purpose of a Chapter 5 confiscation order is
to deprive the defendant of the proceeds of the crime and any related
offences.
This appears from the ninth paragraph of the preamble
to POCA, which provides that ‘
no
person convicted of an offence should benefit from the fruits of that
or any related offence
’
.
A confiscation order also serves broader penal and public
purposes by ensuring and demonstrating that crime does not
pay.
Although its purpose is to deprive the defendant of the proceeds of
his or her crimes, it is not an order for the confiscation
of the
proceeds themselves.  Sections 18(1) and 23 provide that it is a
civil judgment for payment of an amount of money determined
with
reference to the value of, amongst other things, the defendant’s
proceeds of his crime.
123.
Sections 18(1) and (5) of POCA provide that an
application for a Chapter 5 confiscation order may only be made after
conviction
of the defendant.  An application for a confiscation
order is therefore an adjunct to the criminal proceedings against the

defendant.  This is one of the important differences between the
confiscation mechanism under Chapter 5 and the forfeiture
mechanism
under Chapter 6.  The latter provides for forfeiture by a civil
process which is separate from any criminal proceedings
and, as
s 50(4) necessarily implies, may be undertaken even in the
absence of any criminal proceedings.
124.
Chapter 6 of POCA, more specifically s 50(1),
provides for the forfeiture of property to the State in
special-purpose civil
proceedings like the present where it is
established on a balance of probabilities that the property is the
proceeds of unlawful
activities (s 50(1)(b)) or, another
difference from Chapter 5, an instrumentality of an offence referred
to in Schedule 1
(s 50(1)(a)).  (Section 50(1)(c), which
provides for the forfeiture to the State of property shown on the
balance of
probabilities to be property associated with terrorist and
related activities, is not relevant to the present matter.)
125.
The purpose of a Chapter 6 forfeiture order
appears from the tenth paragraph of the preamble to POCA, which
provides 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
’
.  Apart from
the absence of a reference to the person having been convicted, the
part of the preamble which explains the purpose
of Chapter 6
forfeiture orders in relation to the proceeds of unlawful activities
(‘
no person
should benefit from the fruits of unlawful activities
’
)
is essentially the same as part of the preamble which explains the
purpose of Chapter 5 confiscation orders in relation to the
benefits
of crime (‘
no
person convicted of an offence should benefit from the fruits of that
or any related offence
’
).
This is the first equivalence between ss 18(1) and 50(1)(b)
referred to above.
126.
On the face of things, unlike s 18(1), which
as explained confers on the court a discretionary power to make a
confiscation
order once the jurisdictional requirements are met,
s 50(1) is couched in peremptory language.  It provides
that a court
‘
shall
’
make a forfeiture order if it finds that the
property is the proceeds of unlawful activities.  However, as
pointed out in
Mohunram and Another v
National Director of Public Prosecutions and Another (Law Review
Project as Amicus Curiae)
[2006] ZASCA 12
;
2007 (4)
SA 222
(CC) para 121 by Moseneke DCJ, in one of two judgments for the
majority of the CC, ‘
courts have
consistently interpreted “shall” to mean “may”.
They 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
s 12(1)(e) of the Constitution
’
.
The discretionary nature of the power conferred on the court by
ss 18(1) and 50(1), including s 50(1)(b), is the
second
equivalence between those provisions referred to above.
127.
Another difference between the wording of ss 18(1)
and 50(1) is that whereas s 18(1) expressly confers on a court
which
decides to make a confiscation order a further discretion to
determine the amount (subject to the lesser of two maximum
limitations
imposed by s 18(2) the details of which are not
relevant for present purposes), s 50(1) does not confer a
discretion
regarding the extent of forfeiture.  However, as
explained by the SCA in
Cook
Properties
,
supra
,
para 74, s 50(1) must be read in conjunction with s 48(1),
which empowers the NDPP to apply for the forfeiture of ‘
any
or all
’
of property that is
subject to a preservation order.  Section 50(1) therefore
confers on the court a discretion to declare
forfeit less than all of
the property which it finds is the proceeds of unlawful activity or
the instrumentality of a relevant
offence.  This is the third
equivalence between the provisions of ss 18(1) and 50(1),
including s 50(1)(b).
128.
To sum up on the equivalences between ss 18(1)
and s 50(1)(b): both s 18(1) and s 50(1)(b) are
directed at preventing
people from benefiting from the fruits of
crime; and, once the jurisdictional requirements for a confiscation
order or a forfeiture
order relating to the proceeds of unlawful
activities are met, both of them confer on the court a discretion as
to whether or not
to make any such order at all and, if so, the
extent of the benefit to be confiscated or the property to be
forfeited to the State.
129.
In
S v Shaik and
Others
[2008] ZACC 7
;
2008 (5) SA 354
(CC) paras
68-71 the CC discussed three considerations relevant to the exercise
of the discretion conferred on the court by s 18(1)
of POCA.
It started by pointing out that the considerations it mentioned were
not comprehensive and added that ‘
the
enquiry as to whether proceeds of crime should be confiscated is not
the same enquiry as that to be undertaken to determine
whether an
instrumentality of an offence should be confiscated.  The
purpose of confiscating proceeds of crime is primarily
to ensure that
criminals do not benefit from their crimes.  Instrumentalities
of crime are confiscated for different reasons
and the considerations
are therefore not the same
’
(para
68).
130.
Turning to the considerations the CC said are
relevant to determining an appropriate amount as contemplated in
s 18, the first
consideration is ‘
all
the circumstances of the criminal activity concerned
’
(
S v Shaik
,
supra
,
para 69).
131.
The second relevant consideration is ‘
the
extent to which the property to be confiscated derived directly from
the criminal activities
’
(
S
v Shaik
,
supra
,
para 69).  The CC elaborated on this consideration as follows (
S
v Shaik
,
supra
,
paras 69-70):
‘
69. … In most
circumstances it will be entirely appropriate that all direct profits
of crimes of which the defendant has
been convicted be confiscated.
So, a bank robber caught red-handed in possession of R50 million
which he or she has just
stolen from the bank may quite appropriately
be required to pay that money back. In these circumstances, the
primary purpose of
the Act - to ensure that a criminal does not enjoy
the fruits of his or her crime - will be directly served.
On the other hand, the more
removed the derivation of the property from the commission of the
offence, the less likely it may
be that it will be appropriate to
order the full confiscation of the property.  In taking this
consideration into account,
however, a court must take care to
remember that often criminals do seek to disguise the profits of
their crime.  One of
the purposes of the broad definition of
“proceeds of unlawful activities” is to ensure that wily
criminals do not
evade the purposes of the Act by a clever
restructuring of their affairs.
’
132.
The third consideration is ‘
the
nature of the crimes that fall within the express contemplation of
the Act
’
(
S
v Shaik
,
supra
,
para 71).  The CC elaborated on this consideration as follows (
S
v Shaik
,
supra
,
para 71):
‘
The closer the crimes or
criminal activity concerned to the ambit of organised crime, the more
likely it will be that the appropriate
amount will constitute all the
proceeds of the unlawful activities as defined in the Act.  The
reason for this is that the
larger the value of the confiscation
order, the greater the deterrent effect of such an order.  The
Act clearly seeks to impose
its greatest deterrent effect in the area
of organised crime; and so where organised crime is involved, the
purpose of general
deterrence will often be best achieved by a
maximum confiscation order, although of course that will always be
subject to a full
consideration of all the relevant circumstances.
’
133.
It follows from the equivalences between ss 18(1)
and 50(1)(b) of POCA that the three considerations, identified and
discussed
in
S v Shaik
,
supra
,
relevant to the exercise by a court of its discretionary powers to
determine whether to make a confiscation order in terms of
s 18(1)
and, if so, to fix the amount that is appropriate, are also relevant
to the exercise by a court of its discretionary
powers to determine
whether to make an order for the forfeiture of the proceeds of
unlawful activities in terms of s 50(1)(b)
and, if so, to fix
the extent of the proceeds to be forfeited.
134.
That these three considerations are elements of a
proportionality enquiry, is underscored in a later passage in the
judgment in
S v Shaik
,
supra
,
concerning an argument by the appellants that the amount of the
confiscation order determined by the trial court was ‘
disturbingly
inappropriate
’
(that being the
standard for interference by a court of appeal with a confiscation
order made by a court of first instance).
The CC’s
discussion of this argument included the following statement of the
applicable general principles (
S v
Shaik
,
supra
,
para 79):
‘
Section 18 requires a court
to determine an appropriate amount. This exercise requires a court to
determine an amount in the light
of the direct relationship between
the proceeds and the criminal activity concerned, as well as the
nature of the criminal activity
and its closeness to the purposes of
the Act.  The question on appeal, as I have described above, is
whether the amount confiscated
by the court is disturbingly
inappropriate.  Clearly an amount that is disturbingly
inappropriate would be disproportionate
and an appeal court would
therefore interfere with such an order.
’
135.
I consequently conclude that proportionality is
indeed a requirement for the forfeiture to the State of the proceeds
of unlawful
activity under POCA.
136.
It is implicit in the passage from the CC’s
judgment in
S v Shaik
,
supra
,
quoted in paragraph 134
above that the
court must make an overall assessment of the appropriateness of
declaring forfeited to the State an asset with the
value of the
property which the NDPP has targeted.  This entails a comparison
between, on the one hand, the value of the property
or of the
interest of the owner in it (if someone else, e.g. a financial
institution with real security, also has an interest which
reduces
the economic value of the owner’s interest) and, on the other
hand, the value of the total benefit from the unlawful
activity.
The comparison is relevant because the wide definition of ‘
proceeds
of unlawful activities
’
may have
the result that a very valuable property is susceptible to forfeiture
even if, for example, it was retained by using the
direct profits of
crimes to make relatively modest repayments to a lender with real
security over the property.  (Cf.
Geyser
,
supra
,
paras 22-24 and
Bosch
,
supra
,
para 41.)
137.
There is however at least one other matter not
mentioned in
S v Shaik
,
supra
,
which must be considered in the proportionality enquiry.  It is
the use to which the property is being put.  If, for
example, a
criminal uses some of the profits of his crimes to build and endow a
crèche in a deprived area, the forfeiture
of the building and
the endowment will not advance the purposes of confiscating the
proceeds of crime.  As the CC pointed
out in
S v
Shaik
,
supra
,
para 68, the purpose of confiscation is primarily to ensure that
criminals do not benefit from their crimes.  In an earlier

passage in
S v Shaik
,
supra
, the
CC added the following (
S v Shaik
,
supra
,
para 52):
‘
From this primary purpose,
two secondary purposes flow.  The first is general deterrence:
to ensure that people are deterred
in general from joining the ranks
of criminals by the realisation that they will be prevented from
enjoying the proceeds of the
crimes they may commit. And the second
is prevention: the scheme seeks to remove from the hands of criminals
the financial wherewithal
to commit further crimes. These purposes
are entirely legitimate in our constitutional order.
’
138.
However, it also follows from the primary purpose
and the secondary purposes of confiscating proceeds of crime which
the CC identified
in
S v Shaik
,
supra
,
that full confiscation (Chapter 5) or forfeiture (Chapter 6) will be
the norm and an order refusing confiscation or forfeiture
or an order
granting only partial confiscation or forfeiture will be exceptions
to the norm.  The discretionary (proportionality)
enquiry under
ss 18(1) and 50(1)(b), is not an open-ended one.  Rather it
is aimed at determining whether, having regard
to all the relevant
considerations, the case at hand is an exceptional one in which there
should be no or only partial confiscation
or forfeiture.
139.
The approach to the discretionary
(proportionality) enquiry under ss 18(1) and 50(1)(b) of POCA,
outlined in the preceding
paragraph, is supported by
dicta
in two SCA judgments.
140.
The first is the statement in the
SCA’s
judgment in
Cook Properties
,
supra
,
para 66, discussed in paragraph 116
above,
that ‘
the risk of unconstitutional
application [of the definition of ‘proceeds of unlawful
activities’] is smaller
’
than
it is with the definition of ‘
instrumentality
of an offence
’
.
141.
The second is the following statements in the
SCA’s judgment in
National
Director of Public Prosecutions v Gardener and Another
2011 (4) SA 102
(SCA) paras 19 and 32 concerning
the granting of confiscation orders under s 18(1):
‘
19. In the exercise of its
discretion a court must bear in mind the main object of the
legislation, which is to strip sophisticated
criminals of the
proceeds of their criminal conduct.  To this end the legislature
has, in Ch 5 of POCA, provided an elaborate
scheme to facilitate such
stripping.  The function of a court in this scheme, as appears
from what I have said above, is to
determine the “benefit”
from the offence, its value in monetary terms and the amount to be
confiscated.  It is
undoubtedly so that a confiscation order may
often have harsh consequences, not only for the defendant, but also
for others who
may have innocently benefited, directly or indirectly,
from the criminal proceeds.  This is what the legislation
contemplates,
and a court may not, under the guise of the exercise of
its discretion, disregard its provisions — harsh as they may
be.
’
and
‘
32. This brings me to the
third stage of the enquiry, the amount of money that should
appropriately be confiscated from the respondents.
I have said
earlier that the rationale for the legislation is to deprive
offenders of the full extent of the benefit they have
received from
the commission of the offences.  This includes the value of the
appreciation of the assets that were acquired
with the criminal
proceeds, and not just the appreciation in the money benefit they
received.  This is what the legislation
requires and is what the
High Court ought to have ordered…
’
.
Proportionality
in this case
142.
When considering all the circumstances of the
criminal activity concerned it is necessary, first, to consider the
nature and inherent
seriousness of the offences of contravening ss 2
and 20(1)(a) of the Sexual Offences Act.
143.
As appears from the judgments of the CC in
S
v Jordan
,
supra
,
especially the minority judgment of O’Regan J and Sachs J,
these and several other related provisions in the Sexual Offences
Act
pursue an important and legitimate constitutional purpose, namely the
control (suppression) of commercial sex (
S
v Jordan
,
supra
,
paras 114-120;  see also
Geyser
,
supra
,
para 26).  Section 22(a) of the Sexual Offences Act provides
that a person convicted of an offence referred to in s 2
or
s 20(1)(a) is liable to imprisonment for a period not exceeding
three years with or without a fine not exceeding R6 000
in
addition to such imprisonment.  The offences of contravening
ss 2 and 20(1)(a) of the Sexual Offences Act must therefore
be
regarded as serious.
144.
The offences of keeping a brothel and knowingly
living on the proceeds of prostitution are however less serious than
many others.
An example of a far more serious offence is the
crime of corruption at issue in
S v
Shaik
,
supra
,
which the CC described as a very serious offence which is regarded as
such not only in South Africa but internationally because
of its very
harmful effect on the political and economic life of a nation (
S
v Shaik
,
supra
,
para 72).  By contrast, the action from which both the offences
in ss 2 and 20(1)(a) of the Sexual Offences Act ultimately

derive – prostitution in contravention of 20(1A)(a) of the
Sexual Offences Act – is, essentially, sexual intercourse

between consenting adults for money; and, as the minority pointed out
in
S v Jordan
,
supra
,
para 90:
‘
Open and democratic
societies vary enormously in the manner in which they characterise
and respond to prostitution.  Thus practice
in such countries
ranges from allowing prostitution but not brothel-keeping; to
allowing both; suppressing both; to setting aside
zones for
prostitution; and to licensing brothels and collecting taxes from
them.
’
145.
As appears from
S
v Jordan
,
supra
,
para 86, in that case the State argued that the prohibition on
prostitution (now located in s 20(1A)(a) of the Sexual Offences

Act), which for obvious reasons is closely related to the offences of
contravening ss 2 and 20(1)(a) of that Act, is motivated
by the
following eight factors:
‘
(a)
prostitution in itself is degrading to women;
(b)
it is conducive to violent abuse of prostitutes both by customers and
pimps;
(c)
it is associated with and encourages the international trafficking in
women, which South Africa is obliged by its international law
commitments to suppress;
(d)
it leads to child prostitution;
(e)
it carries an intensified risk of the spread of sexually transmitted
diseases,
especially HIV/AIDS;
(f)
it goes hand in hand with high degrees of drug abuse;
(g)
it has close connections with other crimes such as assault, rape and
even murder;
and
(h)
it is a frequent and persistent cause of public nuisance.
’
146.
These factors provide a helpful matrix for
assessing the facts and other circumstances of the present case.
147.
As to factor (a), in the light of the reasoning of
both the majority and the minority of the CC in
S
v Jordan
,
supra
,
I must accept that prostitution by women is inherently degrading to
them.  The majority said it agreed with the conclusion
by the
minority that by engaging in commercial sex work, all prostitutes,
male and female, ‘
knowingly accept
the risk of lowering their standing in the eyes of the community,
thus undermining their status and becoming vulnerable
’
(
S v Jordan
,
supra
,
para 16).  The minority said, amongst other things, ‘
[a]
woman who is a prostitute is considered by most to be beyond the
pale
’
(
S
v Jordan
,
supra
,
para 64) and that female prostitutes:
‘
are a marginalised group to
whom significant social stigma is attached. Their status as social
outcasts cannot be blamed on the
law or society entirely. By engaging
in commercial sex work, prostitutes knowingly accept the risk of
lowering their standing in
the eyes of the community. In using their
bodies as commodities in the marketplace, they undermine their status
and become vulnerable.
On the other hand, we cannot ignore the fact
that many female prostitutes become involved in prostitution because
they have few
or no alternatives...
’
(
S
v Jordan
,
supra
,
para 66).
148.
There is no evidence in the present matter that
the prostitution at the first respondent’s brothels was marred
by any of the
problems referred to in factors (b) to (g).
149.
On the contrary, the general impression created by
the NDPP’s evidence concerning the offences, especially the
descriptions
and photographs of the three brothels raided on 17 June
2010 and the contemporaneous statements by the second respondent and
the
fifteen women found working there, is that the brothels were
established, tidy and well-run places with no violent abuse of the

prostitutes, no pimps, no compulsion, no trafficking in persons for
sexual purposes, no child prostitution, no drugs on the premises
and
no connection with other crimes, and that care was taken to protect
the women against sexually transmitted diseases.
For instance,
in addition to what is said in the statements quoted in paragraphs 43
and 48
to 51
above, the woman in charge of the Belvedere Road
premises says in her statement that her duties were to make sure that
the house
is clean, taking care of the ‘
girls
’
,
making sure that they are safe and interviewing the clients;
and the woman in charge of the Constantia Road premises says
in her
statement that her duties included ensuring the place was clean from
possible drug use.  In addition, it appears from
several of the
statements that the first respondent also provides some of the women
with accommodation at the premises.
150.
As to factor (h), while the papers say the action
by the ‘Vice Squad’ and the SAPS followed, amongst other
things, anonymous
complaints from members of the public in the
vicinity of one of the brothels (the one at the Belvedere Road
premises), there is
no evidence about the nature and numbers of the
complaints.  There is no evidence showing that any of the
brothels was a frequent
and persistent cause of public nuisance.
On the contrary, the fact that the brothels were able to operate for
several years
without being ‘raided’ and shut down
suggests, that, in keeping with their being established, tidy and
well-run places,
they were not major public nuisances.
151.
Overall as to the first consideration identified
in
S v Shaik
,
supra
,
therefore, my assessment is that although contravening ss 2 and
20(1)(a) of the Sexual Offences Act must be regarded as serious,
the
commission of those offences in the present matter was not
accompanied by any aggravating factors and indeed there are a range

of notable mitigating factors.
152.
It is convenient to deal, next, with the third
consideration identified in
S v
Shaik
,
supra
,
namely how close or distant the contraventions of ss 2 and
20(1)(a) of the Sexual Offences Act in the present case are to

organised crime as envisaged in POCA.
153.
The contraventions in this case may well
constitute an organised crime offence specified in POCA, namely the
racketeering offence
created by s 2(1)(e) of POCA.  It
provides that ‘
[a]ny person who …
whilst managing or employed by or associated with any enterprise,
conducts or participates in the conduct,
directly or indirectly, of
such enterprise’s affairs through a pattern of racketeering
activity
’
is guilty of an
offence.
154.
The offence created by s 2(1)(e) of POCA
entails the existence of an enterprise, a pattern of racketeering
activity and a link
between them and the perpetrator.
155.
The word ‘
enterprise
’
is widely defined in POCA as including any
individual, partnership, corporation, association, or other juristic
person or legal
entity, and any union or group of individuals
associated in fact, although not a juristic person or legal entity.
As Cloete
JA pointed out in
S v
Eyssen
2009 (1) SACR 406
(SCA) para
6, a single person is covered as well as every other type of
connection between persons known to the law or existing
in fact.
He held that all that is required for a group of individuals
associated in fact, is that the association would at
least have to be
conscious; that there would have to be a common factor or purpose
identifiable in the association; that the association
would have to
be ongoing; and that the members would have to function as a
continuing unit.  In my view these requirements
are met in
relation to the brothels at issue in the present case.
156.
The term ‘
pattern
of racketeering activity
’
is also
defined widely in POCA as meaning the planned, ongoing, continuous or
repeated participation or involvement in any offence
referred to in
Schedule 1, provided it includes at least two offences referred to in
Schedule 1, of which one of the offences occurred
after the
commencement of POCA (on 21 January 1999) and the last offence
occurred within 10 years (excluding any period of imprisonment)
after
the commission of the prior offence.  In
S
v Eyssen
,
supra
,
para 5 Cloete JA held that the relevant meaning of the word
‘
planned
’
,
which qualifies ‘
ongoing,
continuous or repeated
’
, is
‘
pattern
’
,
which in turn means a pattern of behaviour.  Consequently, a
pattern of racketeering activity cannot be established by unrelated

instances of proscribed behaviour nor an accidental coincidence
between them.  In the present case the first respondent’s

participation in the offences formed part of a pattern of behaviour.
157.
Turning to the link between the enterprise, the
pattern of racketeering activity and the perpetrator, in
S
v Eyssen
,
supra
,
para 5 Cloete JA said ‘
[t]he
essence of the offence in ss (e) is that the accused must
conduct (or participate in the conduct) of an enterprise’s

affairs.  Actual participation is required (although it may be
direct or indirect
’
.  Cloete
JA added (also at para 5) that the offence in s 2(e) ‘
covers
a person who was managing, or employed by, or associated with the
enterprise… “Manage” is not defined
and therefore
bears its ordinary meaning, which in this context is: 1 be in charge
of; run. 2 supervise (staff). 3 be the manager
of (a sports team or a
performer)”
‘
.  In the
present case the first respondent was the overall manager of the
enterprise’s affairs.
158.
The first respondent’s involvement and
criminal conduct is not dissimilar from that of the accused in
S
v Dos Santos and Another
2010 (2)
SACR 382
(SCA) who conducted an illegal diamond dealing enterprise
and was convicted of the offence under s 2(e) of POCA.  In
dismissing the accused’s appeal in that matter, Ponnan JA
reasoned as follows (
S v Dos Santos
,
supra
,
para 38):
‘
The affairs of the
enterprise entailed [the accused] purchasing unpolished diamonds from
people who were not entitled to possess
them.  All five of the
offences of dealing in unpolished diamonds in contravention of the
Diamonds Act, of which the [accused]
was convicted, constituted
participation in such affairs. And all occurred after the
commencement of POCA. None of them was an
unrelated instance of
proscribed behaviour nor an accidental coincidence with any of the
others (see
Eyssen
para 8)
’
.
159.
Although the second respondent played a lesser
role in the commission of the offences, she was nevertheless the
manager of one of
the brothels and was paid for her services by the
first respondent from the proceeds of the prostitution there.
160.
It is common cause that, following their arrest on
17 June 2010, the respondents are currently on trial in a Regional
Court on a
range of charges, including a charge of contravening
s 2(1)(e) of POCA.  This charge reads as follows:
‘
Contravention of section
2(1)(e) read with sections 1, 2(2), 2(3) and 3 of Act 121 of 1998:
Conducting an Enterprise through a pattern
of racketeering activities
(Accused 1 and 2)
IN THAT prior to January 2010, the
exact date being unknown, and up until 17 June 2010, and at or
near Wynberg in the Regional
Division of the Cape, accused 1 and 2
wrongfully and unlawfully whilst managing or employed by or
associated with the enterprise
to wit the brothels situated at 78
Broad Road; 148 Belvedere Road and 90 Constantia Road as described in
the preamble above, conducted
or participated in the conduct,
directly or indirectly, of such Enterprises’ affairs through a
pattern of racketeering activity
’
.
161.
The third relevant consideration identified in
S
v Shaik
,
supra
,
is whether the property at issue derived directly from the criminal
activities and, if not, how far its derivation is removed
from the
commission of the offences.  As explained in paragraphs 103
to 106
above, although
none of the property derived directly from the commission of the
offences, all of it comprises assets which the
respondents were able
to retain – i.e. keep from being sold to satisfy their debts to
the financial institutions from which
they had borrowed to acquire
the assets – using money which they had made from the
commission of the offences.  There
is therefore a relatively
close connection between the property and the commission of the
offences.
162.
This brings me to a comparison between the value
of the respondents’ interest in the property and the value of
the proven
total benefit from the unlawful activity.
163.
As appears from paragraph 79
above
the Broad Road property is worth R880 000 and the value of the
first respondent’s interest in the Broad Road property
is
R280 739;  as appears from paragraph 81
above
the Perth Road property is R1 450 000 and the value of the
first respondent’s interest in the Perth Road property
is
R478 988;  as appears from paragraph 83
above
Cuckoo Street property is worth R350 000 and the value of the
second respondent’s interest in the Cuckoo Street
property is
R110 450;  and as appears from paragraph 85
above
the value of the Rav 4 motor vehicle is R83 900.  Therefore
the total value of the property is R2 763 900
and the total
value of the respondents’ interests in the property is
R954 077.
164.
Turning to the respondents’ proven benefit
from the three brothels, the relevant evidence is the income entries
in the 2010
diaries found at the three brothels on 17 June 2010
and the cash deposits into the respondents’ bank accounts from
2006
onwards.  As appears from paragraphs 35
to
37
above, according to the diaries the
total takings from the women’s work at the brothels between
1 January and 17 June
2010 was R751 903.  The first
respondent’s 50% share of that was R375 951.50.  As
appears from paragraph
75
above, between
2006 and 12 June 2010 there were deposits into the first
respondent’s Standard Bank account number 2....................

totalling R1 366 454, which reduces to R1 229 104
if the 2010 deposits of R137 350 are left out of account;

as appears from paragraph 76
above, between
12 January 2010 (when the account was opened) and 30 April 2010 there
were deposits into the first respondent’s
Standard Bank account
number 624 816 095 totalling R160 000;  and as
appears from paragraph 77
above, between 23
June 2009 (when the account was opened) and 31 August 2010 there
were deposits into the second respondent’s
First National Bank
account number 6................ totalling R80 500.  As
most of the deposits during 2010 probably
derive from the first
respondent’s brothel income in that year, when calculating the
proven income they should be left out
of consideration in favour of
the first respondent’s 50% share of the brother income.
On that basis, and leaving aside
the money deposited into the second
respondent’s account, the proven brothel income between 2006
and 17 June 2010 is R1 605 055.50.
165.
Therefore, the total value of the respondents’
interest in the property (R954 077) is less than the proven
brothel income
(R1 605 055.50) and the proven total brother
income is a significant percentage (58%) of the total value of the
property
(R2 763 900).  As a result, the present is
not case where the forfeiture to the State of the whole of the
property
would be disproportionate when viewed in monetary terms.
In saying that I am mindful of the fact that the Broad Road property

and the Rav 4 vehicle stand on a somewhat different footing to the
Perth Road property and the Cuckoo Street property, because
the first
respondent acquired the former assets before she started the brothel
businesses in 2006.  However, as explained
in paragraph 104
above, she continued repaying the loans secured by
those assets for several years after 2006.  She also refinanced
the purchase
of the Broad Road property in May 2007.
166.
Finally, as to use to which the property is being
put, prior to the granting of the preservation order all of the
immovable properties
and the motor vehicle were being used by or for
the benefit of the respondents.  Since the granting of the
preservation order
the
curator bonis
permitted the first respondent and her son to live
in the Broad Road property and he has also permitted her to use the
Rav 4 vehicle.
(Incidentally, in her written submissions Adv.
Du Toit makes something of the lengthy period during which the
property has been
subject to the preservation order, but as appears
from paragraphs 8
to 12
above
that is due to this Court and the NDPP affording the respondents a
further opportunity to oppose and to obtain legal representation
and
to the late delivery of the first respondent’s answering
affidavit.)
167.
When all of the considerations discussed above are
weighed together, then, in my judgment, even though the commission of
those offences
in the present matter was not accompanied by any
aggravating factors and even though there are a range of notable
mitigating factors,
the forfeiture to the State of all of the
property is justified.  The contraventions may well constitute
the racketeering
offence created by s 2(1)(e) of POCA, albeit
not the large-scale racketeering to which the offences in Chapter 2
of POCA are
primarily directed (
National
Director of Public Prosecutions and Another v Mohamed NO and Others
[2002] ZACC 9
;
2002 (4) SA 843
(CC) paras 14-15).  There is
a relatively close connection between the property and the commission
of the offences in ss 2
and 20(1)(a) of the Sexual Offences
Act.  The total value of the respondents’ interest in the
property is far less than
the proven brothel income and the latter is
a significant proportion of the total value of the property.
Before the property
was placed under the control of the
curator
bonis
all of it was being used by or
for the benefit of the respondents.
168.
The case at hand is therefore not an exceptional
one in which an entire forfeiture, as opposed to a partial forfeiture
or no forfeiture,
will constitute an arbitrary deprivation of
property in contravention of s 25(1) of the Constitution.
ANCILLARY
RELIEF AND COSTS
169.
The NDPP sought ancillary orders providing for the
following: (a) the continuation in office of the
curator
bonis
; (b) the regulation of the sales
of the property; (c) the utilisation of the proceeds of the sale to
pay, first, the fees and expenditure
of the
curator
bonis
as approved by the Master of the
High Court and, secondly, in the case of the immovable properties, to
pay the outstanding balances
of the mortgage bonds registered over
those properties; (d) the payment of the balance of the proceeds
into the Criminal Assets
Recovery Committee established in terms of
s 65 of POCA; (e) the submission by the
curator
bonis
of a final report on his
administration of the property and compliance with the terms of the
forfeiture order; and (f) the publication
of the forfeiture order in
the
Government Gazette
by
the Registrar of this Court as required by s 50(5) of POCA.
170.
With three exceptions, I shall grant the ancillary
relief sought by the NDPPP with certain minor modifications discussed
with Mr
Kagee and Adv. Du Toit at the hearing.
171.
The first exception is the NDPP’s request
for the inclusion in the order of a provision that the
curator
bonis
shall continue in office.
In
Mazibuko and Another v National
Director of Public Prosecutions
2009
(6) SA 479
(SCA) para 57 Nugent JA held such an order was not
necessary as the continuation in office of the
curator
bonis
follows as a matter of law.
This means that the
curator bonis
continues to be subject to the provisions of the
preservation of property order which are appropriate to the final
phase of the
process which shall start upon the making of the order
in the present matter, including paragraph 6 of the preservation of
property
order which requires that he exercise his powers and perform
his duties subject to the provisions of POCA, the provisions of the
Administration of Estates Act 66 of 1965
and the supervision of the
Master of the High Court.
172.
The second exception is the NDPP’s request
for the inclusion in the order of a provision that the
curator
bonis
may deduct and pay from the
proceeds of the sale of the forfeited property his fees and expenses
approved by the Master.  In
Mazibuko
,
supra,
Nugent JA held (also in para 57)
that such an order was not competent because ‘
[t]he
incidence of the costs and expenses arising from a forfeiture order
is regulated by
s 57(5)
of POCA, which requires those costs and
expenses to be defrayed from moneys appropriated for that purpose by
Parliament
’
.
173.
The third exception is the NDPP’s request
for the inclusion in the order of a provision that the
curator
bonis
shall deduct from the proceeds of
the sale of the forfeited property and pay over to the mortgage
bondholders the outstanding amount
of the loans secured by their
bonds, before paying the proceeds into the Criminal Assets Recovery
Account.  (The mortgage
bondholders are Sanlam Home Loans
Guarantee Co (Pty) Ltd (administered by Absa Bank) in the case of the
mortgage bond over the
Broad Road property and the Standard Bank in
the case of the mortgage bonds over the Perth Road property and the
Cuckoo Street
property.)  In
Mazibuko
,
supra
,
Nugent JA further held (once again in para 57) that an order of that
sort is not necessary because ‘
[t]he
rights that vest in the curator bonis are necessarily subject to
other real rights in the property and will be accounted for
in the
ordinary course upon transfer of the property
’
.
This means that, before paying the proceeds of the sales of the
forfeited property into the Criminal Assets Recovery Account,
the
curator bonis
must
in any event deduct and pay over to the mortgage bondholders the
outstanding amounts of the loans secured by their bonds.
174.
The NDPP sought costs in the event of unsuccessful
opposition.  As the first respondent has unsuccessfully opposed
this forfeiture
application, I shall order that she pays the NDPP’s
costs in this application.
ORDER
175.
I make the following order:
175.1.
The immovable property owned by the first
respondent situate at 78 Broad Road, W…., namely Erf 9….,
W….
and the immovable property owned by the first respondent
situate at 18 P…. Road, W…., namely Erf 6….,

W…. are declared forfeited to the State in terms of
sections
48(1)
and
50
(1)(b) of POCA.
175.2.
The immovable property owned by the second
respondent situate at 7 C…. Street, M….. P….,
namely Erf 7……,
M…. P…, is declared
forfeited to the State in terms of
sections 48(1)
,
50
(1)(b) and
53
(1)(a) of POCA.
175.3.
The silver Toyota Rav 4 motor vehicle with
registration number CA 420 441 registered in the name of
the first respondent
is declared forfeited to the State in terms of
sections 48(1)
and
50
(1)(b) of POCA.
175.4.
The
curator bonis
appointed by this Court on 17 January 2012 is
authorised and directed to:
175.4.1.
as soon as possible but not later than 45 calendar
days after the granting of this order, sell the said motor vehicle on
auction
or by private sale, at best;
175.4.2.
as soon as possible but not later than 180
calendar days after the granting of this order, sell the said
immovable properties on
auction or by private sale, at best;
175.4.3.
as soon as possible but not later than 210
calendar days after the granting of this order, or such longer period
as the Master of
the High Court may on good cause allow, pay the nett
proceeds of such sales into the banking account of the Criminal
Assets Recovery
Account, namely account number 8…….
held at the South African Reserve Bank; and
175.4.4.
as soon as possible but not later than within a
period of 240 days after the granting of this order, or such longer
period as the
Master of the High Court may on good cause allow, file
with the applicant and the Master a report indicating the manner in
which
he has completed his administration of the property subject to
the preservation of property order of 17 January 2012 and
complied
with the terms of this order.
175.5.
The Registrar of this Court is directed to publish
a notice of this order in the
Government
Gazette
as soon as possible.
175.6.
The first respondent shall pay the applicant’s
costs of suit in the forfeiture application.
BREITENBACH,
AJ
For the Applicant:

Mr Muhammed Kagee
Office of the State Attorney, Cape Town
For the First Respondent:
Adv. Anél du Toit
Instructed by William Booth Attorneys, Cape Town