National Director of Public Prosecution v Addamo (791/2018) [2018] ZAECPEHC 62 (6 November 2018)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION – PORT ELIZABETH

Case No.: 791/2018

In the matter between:

NATIONAL DIRECTOR OF PUBLIC PROSECUTION Applicant

and

YIRGALAME AYELE ADDAMO

Respondent

JUDGMENT

REVELAS J:

1. The applicant, the National Director of Public Prosecutions, seeks an order in terms of section 50 (1) (a) of the Prevention of Organized Crime Act 121 of 1998 (POCA) declaring forfeit to the State, the respondent’s white Toyota Quantum panel van (‘the

van’)[1] seized on 8 January 2018, and, presently in the possession of the South African Police (the Police’). The relevant preservation order was granted on 13 March 2018.

2. The applicant contends that the van was used as an instrumentality to commit a burglary at a beverage and bottling facility called Henties, which is located in the Greenbushes industrial area. The respondent opposes the forfeiture application.

3. On Sunday 7 January 2018, the warehouse supervisor and manager of Henties discovered that a burglary was committed at the Henties

premises. The front and back doors were forced open. The alarm system’s consol was broken out of its bracket. In the administrative office, a large Chubb safe was missing. Cash in the amount of R100 000-00 was stored in the safe and accordingly also missing. Apart from the aforesaid, a desktop computer, 14 boxes of spices, 52 cases of juice bottles and 1 248 cans of grape juice were also stolen from a small shop area inside the same building. The total value of the stolen goods was R200 000-00.

4. Close Circuit Television Cameras installed at the premises of Henties revealed that the respondent, driving the van, entered the Henties premises early on Sunday morning 7 January 2018 at 06h52, with an unknown accomplice and left the premises at 07h35, in the same van. A guard at the boom gate had reported, surprisingly so, that he thought the two men were there on legitimate business.

5. On 8 January 2018, at about 22h50, after an All-Points Bulletin (‘APB’) was issued in respect of the van, it was noticed by a security guard at a Mill Park fast food outlet (KFC). The police was called and the respondent was arrested. A search of the van was conducted and the police found inter alia, an empty juice bottle and a crowbar inside the van.

6. The respondent admitted that the safe, laptop and other items belonging to Henties as listed above were loaded into his van. However, he maintains that he has a transport and delivery business and uses his van for that purpose. In the present incident, he alleges that he was merely performing a loading and delivery service for a man named Zola, who undertook to pay him R300-00 for picking up a load at Henties. The respondent alleges that he waited outside Henties while Zola went inside and loaded the goods into the van. According to the respondent he did not suspect that Zola was involved in anything untoward and he also never asked Zola, who was a regular client of his, about the nature of the job in question. After all the items in question were loaded onto the van, the respondent says he and Zola travelled to Deal Party in the van. There they were met by someone in a Nissan Truck. Zola then loaded all the items taken at Henties onto the Nissan truck. Thereafter Zola drove off in the Nissan truck, never to be seen again by the respondent, who alleges that he was never paid the R300-00 that Zola had promised him.

7. In the determination of whether in the circumstances, the van is an instrumentality in terms of the Prevention of Organised Crime Act[2] (“POCA”), and thus liable to be forfeited to the State, a restrictive interpretation of the concept of an “instrumentality” is called for.[3] To be an instrumentality of an offence the property concerned must by definition in POCA ‘be concerned in the commission of that offence and also facilitate the commission of the offence and be directly causally connected with it so that it is integral to the commission of the offence.[4] “A criminal conviction is not a condition precedent to forfeiture, and the property may be forfeited even where no charge is pending…. Where a forfeiture order is sought the Court thus undertakes a two-stage enquiry. In the first, it ascertains whether the property in issue was an “instrumentality of an offence.” At this stage the owner’s guilt or wrongdoing, knowledge lack of are not the focus. The question is whether a functional relationship between property and crime has been established. Only at the second stage, when (after finding that the property was an instrumentality) the Court considers whether certain interests should be excluded from forfeiture, does the owner’s state of mind come into play. Approached from a different perspective, the contextual and constitutional indicators pointing to a restrictive interpretation of “instrumentality” make it unnecessary to intrude the owner’s culpability in the first stage.”[5]

8. It is clear that the van was integral to the commission of the offence in question. Without it the burglary at Henties could not have been carried out in the circumstances.

9. The next question is whether it is probable that the respondent was an entirely ignorant of the burglary. There are several reasons why that is not probable.

10. Firstly, it is highly improbable that a driver, such as the respondent says he was, would take no interest in a large safe, a computer and several other items being loaded onto his van early on a Sunday morning, when Henties was clearly not open for business.

11. Secondly, the crowbar found at the back of the van was orange in colour and the warehouse manager of Henties, Mr Christo Nel stated that paint markings of the same orange colour were found on the front and exit doors that were forced open. Orange markings were also found on the office door where the “big safe” and small shop was. According to Mr Nel, Henties did not own such a crowbar.

12. Also, it is highly unlikely that Zola would have been capable of carrying and loading such a large safe without assistance. If the respondent had helped Zola, which he probably must have done because the circumstances demanded it, he would have seen evidence of a burglary. Any alleged innocence or ignorance at that point was clearly willful and disingenuous.

13. The cumulative effect of the evidence against the respondent is overwhelming, and the probabilities indicate the respondent’s

involvement in the offence committed.

14. The question of proportionality should also be examined. The respondent’s business is transporting goods for customers in his van. He does not ask them any questions about the provenance of the items he transports no matter how suspicious the circumstances. That suggests repeated use of the van for nefarious purposes and that it was not a “once off” situation.

15. In the circumstances, and for the reasons set out above it must be concluded that forfeiture of the property in question is justified.

16. The following order is made:

(a) In terms of section 50 (1) (a) of the Prevention of Organized Crime Act 121 of 1998, the property of the respondent, namely, a white Toyota Quantum panel van with registration BD 58 YD GP, seized on 8 January and held by the South African Police under Kabega Park CAS 53/01/2018 is hereby declared forfeit to the State.

(b) In terms of section 50 (e) of POCA, paragraph 5 below shall take effect 45 days after publication of a notice thereof in the Government Gazette unless an Appeal is instituted before this time in which case this Order will take effect on the finalization of such Appeal.

(c) Sakhumzi Nonkasa (Nonkasa), who was appointed in the Preservation Order to take care of the property, be and is hereby directed to continue acting as such for the purpose of this order.

(d) Pending the taking effect of this order, the property shall remain in the custody of Nonkasa.

(e) On the date on which this Order takes effect, to whit 45 weekdays after publication in the Government Gazette, Nonkasa shall cause the property to be sold by public auction alternatively private treaty and deposit the proceeds of such sale to be deposited into the criminal Assets recovery Account.

(f) Nonkasa shall have the power to sign all the transfer and registration documents in relation to the property.

(g) The Applicant is directed to publish a notice of this Order in the Government gazette as soon as it is practicable.

(h) The Applicant is directed further to serve a copy of this order on the Respondent.

(i) The Respondent is to pay the costs of this Application.

E REVELAS

Judge of the High Court

Appearances:

For the Applicant: Adv Cubungu instructed by N E Mbewana Attorneys Inc, Port Elizabeth

For the respondent: Mr Myburg instructed by State Attorney, Port Elizabeth

Date heard: 18 October 2018

Date delivered: 6 November 2018

[1] With registration BD 58 YD GP

[2] Act 121 of 1998.

[3] NDPP Cook Properties (Pty) Ltd and Others 2004 (2) SACR 208 (SCA) at paragraphs 12 – 15; NDPP v Geyser and Another 2008 (2) SACR 103

[4] NDPP v R O Cook Properties; Mohunran v NDPP (Law Review Project as Amicus Curiae) 2007 (2) SACR 145 CC.

[5] NDPP v Seevnarayan 2004 (2) SACR 208 at226 paragraph [21]