Moore and Others v National Director of Public Prosecutions (CA&R 59/2022) [2024] ZANCHC 30 (28 March 2024)

Moore and Others v National Director of Public Prosecutions (CA&R 59/2022) [2024] ZANCHC 30 (28 March 2024)

The court found that the respondent failed to prove, on a balance of probabilities, that the Barkly West properties were proceeds of unlawful activities. The evidence relied upon by the respondent, specifically the statements of Mr Raadt and Mr Ellis, constituted inadmissible hearsay, as the deponents lacked personal knowledge and no confirmatory affidavits were obtained. The court held that it would not be in the interests of justice to admit such evidence. Furthermore, the redistribution agreement entitled the first appellant to deal with the Apian Way property, including selling it to Mr Raadt. The court rejected the respondent's argument that the first appellant could not sell the...

Citation
[2024] ZANCHC 30
Parties
Appellant: Henriëtte Cornelia Moore; Appellant: Christopher Ley Moore; Appellant: Roberto Jorge Mendonca Velosa; Appellant: The CM Property Trust; Respondent: National Director of Public Prosecutions
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
28 March 2024
Case Number
CA&R 59/2022
Procedural Posture
Civil Appeal / Appeal From the High Court Judgment and Order Under Case Number 628/2020, Following Leave Granted by the Supreme Court of Appeal.
Outcome
Appeal upheld with costs; forfeiture and preservation orders set aside.
Judges
Williams, Nxumalo, Tyuthuza
Legal Topics
Forfeiture of Property, Hearsay Evidence, Redistribution Agreement, Onus of Proof, Sale by Non Owner
Civil Procedure Land and Property Forfeiture of Property Hearsay Evidence Redistribution Agreement Onus of Proof Sale by Non Owner

Case Brief

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Parties

Henriëtte Cornelia Moore

Appellant

Christopher Ley Moore

Appellant

Roberto Jorge Mendonca Velosa

Appellant

The CM Property Trust

Appellant

National Director of Public Prosecutions

Respondent

Procedural Posture

Civil Appeal / Appeal From the High Court Judgment and Order Under Case Number 628/2020, Following Leave Granted by the Supreme Court of Appeal.

Legal Issues

  1. 1 Whether the Barkly West properties are proceeds of unlawful activities and liable to forfeiture under POCA.
  2. 2 Whether the evidence relied upon by the respondent amounts to inadmissible hearsay and should be excluded.
  3. 3 Whether the first appellant was entitled to sell the Apian Way property under the redistribution agreement.

Ratio Decidendi

The court found that the respondent failed to prove, on a balance of probabilities, that the Barkly West properties were proceeds of unlawful activities. The evidence relied upon by the respondent, specifically the statements of Mr Raadt and Mr Ellis, constituted inadmissible hearsay, as the deponents lacked personal knowledge and no confirmatory affidavits were obtained. The court held that it would not be in the interests of justice to admit such evidence. Furthermore, the redistribution agreement entitled the first appellant to deal with the Apian Way property, including selling it to Mr Raadt. The court rejected the respondent's argument that the first appellant could not sell the...

Court Disposition

Appeal upheld with costs; forfeiture and preservation orders set aside.

Orders

  • The appellants' appeal is upheld with costs.
  • The order granted by the Court a quo is set aside and replaced with: 1. The application for forfeiture under section 48 of the Prevention of Organised Crime Act 121 of 1988 is dismissed with costs. 2. The provisional preservation order granted on 20 March 2020 and varied on 24 July 2020 is discharged.