Nationa Director Public Prosecutions v Maisela (28844/09) [2009] ZAGPPHC 360 (17 December 2009)

Nationa Director Public Prosecutions v Maisela (28844/09) [2009] ZAGPPHC 360 (17 December 2009)

The court found that the applicant failed to establish on a balance of probabilities that the blue Toyota Hilux was an instrumentality of the offence of corruption. The evidence did not show a reasonably direct link between the use of the vehicle and the commission or success of the alleged unlawful activities. The vehicle was not specifically adapted or essential for the crime; any vehicle or public transport could have sufficed. The use of the vehicle was for convenience and did not play a functional or substantial role in facilitating the offence. Accordingly, the requirements for forfeiture under section 48(1) of the Prevention of Organised Crime Act were not met.

Citation
[2009] ZAGPPHC 360
Parties
Applicant: National Director Public Prosecutions; Respondent: Eliot Maisela
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 December 2009
Case Number
28844/09
Procedural Posture
Forfeiture Application / Application for Forfeiture Order Following Preservation Order
Outcome
Application for forfeiture order dismissed.
Judges
Omar, AJ
Legal Topics
Prevention of Organised Crime Act, Instrumentality of Offence, Forfeiture Orders, Corruption, Burden of Proof
Criminal Law Civil Procedure Prevention of Organised Crime Act Instrumentality of Offence Forfeiture Orders Corruption Burden of Proof

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Parties

National Director Public Prosecutions

Applicant

Eliot Maisela

Respondent

Procedural Posture

Forfeiture Application / Application for Forfeiture Order Following Preservation Order

Legal Issues

  1. 1 Whether the blue Toyota Hilux motor vehicle was an instrumentality of an offence as contemplated by the Prevention of Organised Crime Act.
  2. 2 Whether the applicant proved on a balance of probabilities that the vehicle was used to facilitate the commission of corruption.
  3. 3 Whether the vehicle should be forfeited to the State under section 48(1) of the Act.

Ratio Decidendi

The court found that the applicant failed to establish on a balance of probabilities that the blue Toyota Hilux was an instrumentality of the offence of corruption. The evidence did not show a reasonably direct link between the use of the vehicle and the commission or success of the alleged unlawful activities. The vehicle was not specifically adapted or essential for the crime; any vehicle or public transport could have sufficed. The use of the vehicle was for convenience and did not play a functional or substantial role in facilitating the offence. Accordingly, the requirements for forfeiture under section 48(1) of the Prevention of Organised Crime Act were not met.

Court Disposition

Application for forfeiture order dismissed.

Orders

  • The application for a forfeiture order in respect of the blue Toyota Hilux motor vehicle is dismissed.
  • No order as to costs.