National Director of Public Prosecution v Ncongwane and Others (84/04/01) [2005] ZAKZHC 5; 2005 (2) SACR 377 (N) (20 May 2005)

REPORTABLE JUDGMENT

IN THE HIGH COURT OF SOUTH AFRICA

NORTH EASTERN CIRCUIT LOCAL DIVISION

CASE NO : 984/2004

In the matter between :

THE NATIONAL DIRECTOR OF

PUBLIC PROSECUTIONS Applicant

and

ISAAK NCONGWANE First Defendant

THEMBA ZWANE Second Defendant

CHRISTOPHER DLAMINI Third Defendant

SIPHO MAKHOBA Fourth Defendant

TEFO LENGENE Fifth Defendant

BHEKI SHANGE Sixth Defendant

SIBONISO INNOCENT GUMEDE Seventh Defendant

___________________________________________________

J U D G M E N T

MSIMANG, J

This is an application for a Confiscation Order in terms of section 18(1) of the Prevention of Organised Crime Act, 121 of 1998 (the Act). The first five and the seventh defendants were convicted of, inter alia, the crime of robbery by this Court, sitting with assessors on the North Eastern Circuit. The erstwhile sixth defendant (who formed part of the convicted accused in the criminal trial) has since been deceased and, after his death, the applicant made an application for an order substituting his name with that of a duly appointed representative of his interstate estate. The said application was duly granted and his name was duly substituted with that of Siboniso Churchill Shange, the present sixth defendant in these proceedings.

The facts found as proven and which sustained a conviction in the criminal matter, in so far as they may be relevant to the present proceedings, are as follows :-

1. The first five defendants and the erstwhile sixth defendant (the six defendants) formed part of a larger group which, on the morning of 5 August 2002 and at or near the Inkwalini-Melmoth Road, attacked a vehicle belonging to Fidelity Cash Management Services and robbed the occupants of a sum of R1 200 000.00 in cash as well as a firearm, to wit, a CZ 75 pistol;

2. After the robbery had been committed the group separated and the six defendants sped away in a red Caravelle VW Combi which was intercepted by the Ulundi police officers. Upon the said interception the vehicle and the occupants were searched but no cash could be found either in the vehicle or on the persons of the defendants;

3. The six defendants were accordingly arrested and taken into custody and remained in custody until their conviction;

4. The seventh defendant was accused No 7 in the criminal trial and formed part of the accused convicted of the crime of robbery. However, though he had not been present when the robbery had been executed, he participated in the planning of the same;

5. The rest of the group as well as a total of

R1 200 000.00 cash disappeared from the scene of the robbery and those members of the group have to date not been apprehended neither has the said money been recovered and returned to the rightful owners. The criminal court accordingly inferred that the money had been taken by those members and that the defendants were guilty of the crime of robbery as they had formed part of the same group.

It is on the basis of this synopsis that the applicant launched the present application in terms of section 18(1) of the Act for the first order, namely, for the Court to enquire into any benefit which any of the defendants may have derived from the said crime of robbery and, if so, for the second order, namely, that the defendants did in fact benefit from the said crime and to make the necessary confiscation orders.

The application was opposed initially by all the defendants. However, on 2 March 2004 the second, third, fourth and fifth defendants and, on 26 March 2004, the seventh defendant withdrew their opposition to the application and intimated that they no longer wished to take any part in the proceedings. This then left the first and sixth defendants in the fray and Mr Slabbert appeared for both of them while Mr Van Zyl argued the case for the applicant.

On 16 August 2004 Mr Slabbert gave notice that he wished to argue a point in limine and I permitted him to argue the same. He contended that on the papers filed by the applicant, the Court could not entertain an application in terms of section 18(1) of the Act. He submitted that the applicant bore the onus to show that the defendants had derived a benefit from the crime of which they had been convicted. All the applicant stated in the founding affidavit was that the defendants had been convicted of the crime without mentioning the benefit any one of them had derived from it. Failure to specify such benefit was fatal to the application, the argument concluded.

As I concluded that the argument was bad in law, I, on 3 September 2004, handed down a judgment dismissing the same and ordering that the Court should proceed with the inquiry into any benefit which the defendants may have derived from the crime. It therefore came as a surprise when in paragraph 10 of applicant’s founding affidavit it was alleged that, on 3 September 2004, I had ruled that the defendants had received such benefit. The same allegation was repeated in paragraph 5 of the affidavit filed by the first defendant on 12 November 2004. As I doubted the accuracy of this allegation I took the matter up with Counsel when the matter was down for argument on 22 March 2005 and on that date it was agreed that the matter be adjourned to enable the parties to obtain a transcript of my judgment of 3 September 2004. The said transcript was subsequently obtained and it confirmed my misgivings regarding the allegation. It is clear from the transcript that the Court had dismissed the point in limine and ordered that the Court proceed with the inquiry into any benefit which the defendants may have derived from the crime.

Inspite of this apparent misunderstanding, applicant’s Counsel, Mr Van Zyl, submitted that sufficient allegations had been made in the papers to sustain a finding that the defendants had derived a benefit from the crime of robbery of which they were convicted. He accordingly proclaimed his willingness and preparedness to argue applicant’s case on the papers before Court. While he acknowledged that the six defendants had been intercepted without any cash in their possession shortly after the commission of the crime and that the seventh defendant had not been present during the execution of the robbery, he submitted that they did derive the benefit from the robbery by virtue of the fact that the cash had been taken by their co-perpetrators. From the accepted evidence the only

inference which could be drawn is that the defendants would have met up with their co-gang members to share in the proceeds of the robbery. In any event, he further submitted, the defendants are jointly and severally liable together with the other members of the gang for the proceeds of the robbery. To buttress his argument, he referred me to two unreported decisions 1 as well as to the decisions in Gray v Poutsma and Others 2 and M Naude and Du Plessis v Mercier. 3

Before analysing these submissions and, for the purpose of doing so, it is important first to interpret the provisions of section 18(1) of the Act which run as follows :-

“18. Confication orders - (1) Whenever a defendant is convicted of an offence the court convicting the defendant may, on the application of the public prosecutor, enquire into any benefit which the defendant may have derived from-

(a) that offence;

(b any other offence of which the defendant has been convicted at the same trial; and

(c) any criminal activity which the court finds to be sufficiently related to those offences.

and, if the court finds that the defendant has so benefited, 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 and the court may make any further orders as it may deem fit to ensure the effectiveness and fairness of that order.”

In his argument, Mr Van Zyl submitted that the Applicant was relying only on the crime of which the defendants had been convicted and therefore upon the provisions of paragraph (a) of the sub-section.

It is clear that our act is modelled on the legislation in the United Kingdom 4 and therefore that the decisions by the courts of those jurisdictions, though not binding upon us, may provide

invaluable assistance in the interpretation of our legislation. It is generally accepted in the United Kingdom that the decision in Reg. v Dickens 5 provides a general guidance on the interpretation of similar legislation in that jurisdiction.6 At 105 of the report, Lord Lane CJ describes the object of the Act as follows :-

“It is clear that the object of the Act is to ensure, so far is possible, that the convicted drug trafficker is parted from the proceeds of any drug trafficking which he has carried out.”

and, at 106, he continues to hold that :-

“The prosecution have the task of proving both the fact that the defendant has benefited from the drug trafficking and the amount of such benefit .....the standard of proof required is the criminal standard, namely proof so that the judge feels sure or proof beyond reasonable doubt…..”

It therefore accordingly follows that, before any confiscation order can be made in terms of section 18(1) of the Act in this matter, it must be established, beyond a reasonable doubt, that the defendants derived benefit from the crime of robbery of which they were convicted and, in this inquiry, the applicant bears the onus.

Section 12(3) of the Act provides that for purposes of the present enquiry :-

“a person has benefited from unlawful activities if he or she has at any time ……received or retained any proceeds of unlawful activities.”

In the Concise Oxford Dictionary the 7th Edition, the word “receive” is defined as “accept delivery of, take into one’s hands or possession; accept”…and the word “retain” is defined as “keep in place, hold fixed”. It is therefore evident from the use of the word “receive” that the proceeds must somehow have come to the possession of a defendant, though by the addition of the words “or retain”, as it was pointed out in the Mothopi decision (supra), such a defendant :-

“Need not have received and retained, he may have received but not retained……”

Returning to the facts of the present case, there is no evidence before Court that any of the defendants ever took delivery or took into his possession any of the amount of R1 200 000.00 which disappeared during the robbery and, in my view, on a proper and strict construction of the statute, none of these defendants can therefore be said to have derived any benefit from the crime. In National Director of Public Prosecutions v Phillips and Others 7 Heher J had an occasion to comment as follows about the purpose of the confiscation order in terms of section 18 of the Act :-

“In terms of section 18(1) a confiscation order may only be made against a defendant who has derived benefit from his crimes. It follows that, if two people are convicted of the same offence from which one derives benefit but the other not, a confiscation order may be made against the first but not against the second…..” 8

This dictum was quoted with approval by Van der Merwe J in The National Director of Public Prosecutions v Johannes Du Preez Joubert and Others. 9

I have accordingly concluded that, giving the words of the statute their ordinary meaning and on the evidence before Court, including the evidence found to be proven in the criminal trial, the defendants in this matter cannot be said to have derived any benefit from the crime of robbery of which they were convicted by this Court on 14 November 2003. To hold that they can be vicariously held liable on the basis of the conduct of other gang members would, in my view, be reading too much into the relevant sections.

I have had an occasion of perusing the four (4) decisions on which Mr Van Zyl relied in support of his arguments and have concluded that the said reliance was misplaced. The Poutsma case (supra) dealt with an exception to a plea of one of the joint tort feasors and the Mercier decision (supra) dealt with the liability of the joint tort feasors for their common tort. The Toffie and Mothophi decisions (supra) dealt with the interpretation of the provisions of section 18 of the Act. However, the facts in those cases are distinguishable from the facts in the present case.

In the Mothophi case the facts revealed that at some stage the stolen cattle had been in the possession of the respondent but that some of them had been confiscated from him and returned to the owners. It was in this context that Mojapelo J held that the scope of the word “benefited” as used in section 12(3) is clearly wide. It includes “received” or “retained” at any time.

In the Toffie case the defendant had been convicted of theft of cash which the Court found he had planned and executed with his co-accused. The amount involved was approximately R900 000.00. Evidence was led and accepted by the Court that the full amount was received by the thieves but that the defendant’s share was approximately R150 000.00. The Court found that the value of the benefit by the defendant was R900 000.00. It did not matter that he had ultimately received a share of only R150 000.00.

For the above-mentioned reasons I have therefore been driven to the conclusion that this application cannot succeed.

I accordingly dismiss the application with costs.

Date of Hearing: 26 April 2005

Date of Judgment: 20 May 2005

Counsel for Applicant: Adv. N J Van Zyl

Instructed By : State Attorney

3rd Floor, Sangro House

417 Smith Street

DURBAN

Counsel for First &

Sixth Defendants : Adv. S D Slabbert

Instructed by: c/o J H Slabbert Atorney

4 Pyne Place

DURBAN NORTH

1 NDPP v W M Mothopi, an unreported decision of the Transvaal Provincial Division under Case No. 5925/93 delivered on 6 February 2004; The National Director of Pubic Prosecutions v Ayoob Toffie and Ruksan Toffie, an unreported Witwantersrand Local Division decision under Case No 03/27738 delivered on 15 September 2004;

2 1914 TPD 203 at 205;

2

1914 TPD 203 at 205;

3 1917 AD 32 at 38;

4 Project 98, South African Law Commission “International Co-operation in Criminal Prosecutions” p 99 et seq;

4

Project 98, South African Law Commission “International Co-operation in Criminal Prosecutions” p 99 et seq;

5 (1990) 2 QB 102;

6 Reg. v Rose [1993] 1 WLR 844 CA at 846;

7 2002 (4) SA 60 (W);

8 At 109 F – G Ibid;

9 An unreported decision of the Transvaal Provincial Division under Case No 24541/2002;