National Director of Public Prosecutions v Boroto (56751/08) [2009] ZAGPPHC 189 (7 May 2009)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 56751/08

DATE: 07/05/2009

In the matter between:

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS............................APPLICANT

AND

CHARLES BOROTO....................................................................................RESPONDENT

JUDGMENT

MAVUNDLA, J.,

[1] The applicant seeks an order in terms of section 53 of the Prevention of Organized Crime Act, NO 121 of 1998, (POCA ACT) declaring forfeit to the State the Nissan Hardbody with registration number NGR156 GP (“the property”) which is presently subject to a preservation order granted by this Court under the above case number on 5 December 2008, with ancillary relief.

[2] The basis of the application is that the property concerned is an instrumentality of the offence listed in Schedule 1 of the Prevention of Organized Crime Act, No 1221 of 1998.

BACKGROUND

[3] The respondent was in the employ of University of Limpopo, Medunsa Campus as a cleaner of manholes. In the morning of 3 July 2008 the respondent drove in his motor vehicle with registration number NGR156 GP towards the exit gate at the University. He was approached by two security guards. The respondent, upon seeing the two guards, stopped next to the road in front of the gate, reversed and made a u-tum and attempted to drive away. The two security guards followed him and caught up with the respondent next to a fence. When his motor vehicle was searched, two manhole covers were found. He was then arrested.

[4] The respondent was charged with the theft of two manhole covers. He subsequently pleaded guilty to the theft of the two manhole covers. He was sentenced to six months imprisonment or a fine of R3000, 00 wholly suspended for three years.

[5] The applicant obtained a preservation order in respect of the aforesaid motor vehicle on 5 December 2008.

[6] The applicant on 17 February 2008 then issued this application with the Registrar of this Court under the same case number in terms of which the preservation order was obtained. The relevant notice of motion, the founding affidavit and the preservation court order was served at the place of residence of the respondent, although not personally1.

[7] On the 3 February 2008 the respondent filed a notice to oppose, which states the names of the respondent and further states indicates that the respondent will accept service of all notices and pleadings in this matter at the address mentioned therein below, which is the address of his legal representatives.

[8] On 13 March 2008 the respondent filed yet another notice of opposition together with the affidavit of the respondent to be used

in support of the opposition of the forfeiture.

[9] In his affidavit the respondent states that he worked for MEDUNSA as a cleaner from 1995 to 2007 when he took a voluntary retirement

package. He says that he received an amount of R156677.78 from MEDUNSA when he left his employment. He purchased the vehicle in

issue for an amount if R51 000.00. He says that he bought the motor vehicle for purpose of generating income by means of transporting

goods and furniture for people.

[10] He says further that on the 3 July 2007 he went to MEDUNSA to collect his IRP5 but could not find the responsible Human Resource official. When he left the building he saw the manhole covers next to a big dustbin. Whilst he worked at MEDUNSA, the residents would regularly leave discarded stuff for him to take. When he saw the manhole next to the dustbin he presumed that these were being thrown away. He then took these as he knew that he could sell. He had hoped that with the money out of the sale of the manhole covers he could buy immune booster for both his son and himself as they are both HIV positive. He says that he knew that he should have asked for permission to take these manhole covers and that it was wrong not to do so. He denies that the motor vehicle is an instrumentality of the offence. He further says that he did not need his motor vehicle to transport the manhole covers because he could have easily carried these himself.

[11] He further stated that he needs the motor vehicle to generate income for himself and his minor child.

[12] The State has raised three points in limine. The first point raised is that the respondent failed to comply with sections 39(3) and 49(1) of POCA. As I have already pointed out herein above, appearance to oppose, filed on the 3 February 2008 is the customary notice to oppose filed by respondents in ordinary motion proceedings. This notice is not in terms of s39(3) in that it is not accompanied with an affidavit setting out the interest of the respondent in the property and the grounds upon which the forfeiture is being opposed. This notice to oppose was served inside the 14 day period.

[13] Although the subsequent notice to oppose that was filed on 13 March 2008, complies with the provisions of rule 39(3) in that it was accompanied by the affidavit of the respondent, It was however filed out of time. That was not the only problem.

[14] The further point in limine taken is that the respondent, having been late with the notice to oppose and his affidavit, has not complied with the provisions of section 49(4) of POCA. This section provides that a person, who has entered an appearance to oppose out of time, must apply to Court for leave to enter such an appearance to oppose.

AD CONDONATION

[15] At hearing of the matter, the applicant brought an application in terms of section 49 for condonation for the late filing of the notice of opposition and non compliance of section 39(3) and (4).

[16] The notice of intention to oppose that was filed on behalf of the respondent on 3 January 2009 was certainly not in compliance with section 39(5)2 of POCA in that it was not accompanied with an affidavit wherein the interest of the respondent in the relevant property is stated and also his reasons upon which he relies to resist the forfeiture application.

[17] However, the subsequent affidavit of 13 March 2009 did comply with the provisions of section 39(5), albeit the fact that it was out of time.

[18] Section 49(1) of POCA,3 in my view, grants the Court a discretion to condone on good cause, failure to enter an appearance to defend within the fourteen day period prescribed by s39 (3) of the Act, provided4:

(a) such application for condonation is brought before judgment for forfeiture is given; and

(b) the applicant shows that he has sufficient reason for his failure to enter appearance to oppose; and

(c) he has an interest in such property forming the subject of the forfeiture application.

[19] The reason advanced for the failure to timeously enter an appearance to defend is described by one Sarel Langevleldt, who is an attorney in the employ of the Legal Aid Board’s Civil Unit of the Pretoria Justice Centre. He states that the respondent approached the Legal Aid Board on 21 January 2009. He explains further that the policy of the Legal Aid Board is that civil applications are processed and before assisting an applicant approval is necessary in accordance with the Legal Aid guidelines. He further states that on 10 February 2009 Advocate Elizabeth Nieuwoudt consulted with the Respondent and requested the Respondent to obtain information from Old Mutual and Capitec Bank. After the respondent had obtained the relevant information, he consulted with counsel and then the opposing affidavit was drafted and signed on 4 March 2009.

[20] The Court has a wide discretion to condone failure to comply with prescriptive, such as in casu. In this regard vide Erasmus Superior Court Practice , the learned authors said5: “The court has wide discretion in evaluating ‘good cause’ in order to ensure that justice is done. For this reason the courts, have refrained from attempting to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of an indulgence for any attempt to do so would hamper the exercise of the discretion.”

[21] In the matter of Regal African Superslate (Pty) Ltd6 the Appellate Court said: “ Condonation may be granted under Rule 13 if the applicant shows sufficient cause to justify this Court in granting the indulgence sought. (Cairns’ Executors v Gaarn, 1912 A.D. 1181; Rose and Another v Alpha Secretaries 1947 (4) SA 511 (AD) at p517,518). An exhaustive definition of what would constitute sufficient cause has never been attempted

‘would hamper the exercise of a discretion which the rules have purposely made very extensive and which it is highly desirable not to abridge'

Cairn’s case at pi 86). In Meintjies v H,D Combrink (Edms) Bpk1961 (1) SA 262 A.D.), the learned Chief justice at P264 pointed out that although the power to condone a failure to comply with a procedural rule within the prescribed period will be exercised only upon a sufficient and satisfactory grounds being shown, an application such as the present will receive favourable consideration because a Court is hesitant to allow a party to forfeit the enforcement of a right by reason of non-compliance with such a Rule (See also Phillips v Directeur vir Sensus, 1959 (3) SA 370 .D.) at p374).

It seems to me that the delay in the present case was due entirely to the neglect of applicant’s attorney which neglect should not, in my view, in the circumstances of this case, debar the applicant, who himself was in no way to blame, from relief.(Cf. Rose and Another v Alpha Secretaries Ltd., supra).”

[22] In casu, the respondent approached the Legal Aid Board for assistance. It is a well known fact, which I take judicial knowledge

off, that the Legal Aid Board is always slow in approving applications for assistance. This is understandable having regard to

the number of such applications it has to process. Mr. Sarel Langeveldt. has explained that an approval had first to be made before the respondent could be assisted. It does not seem, in my view, that the procedural flaws on the part of the respondent could be placed squarely at the door step of the respondent.

[23] In considering whether I must exercise my discretion in favour of the respondent, I must also have regard to the fact that the relevant statute (POCA Act) in casu, is invasive on the a respondent’s constitutionally enshrined right to property7. Were I to refuse the application for condonation, the forfeiture would be as good being arbitrary, vide also Singh v National Director of Public Prosecutions 2007 (3) ALL SA 510 (SCA) at 514e where Theron AJA stated that: “Considering that deprivation of property is arbitrary when there is insufficient reason for deprivation of property.”

[24] I must also have regard to the fact that the consequence of refusal to condone the lateness of the procedural steps of the respondent would also violate the respondent’s constitutionally enshrined right to access8 to Court.

[25] Since POCA, by its very draconian and its invasive nature, in particular impacting on two constitutionally enshrined rights, in terms of s25 and s34, the Courts, in considering whether or not to exercise its discretion, must, in my view, adopt a much more liberal approach. The court must also have regard to the eventual consequences of a refusal to condone the non-compliance. In casu the respondent would forfeit his motor vehicle without having been afforded an opportunity to put his case before the court, especially

where the non-compliance is not so much as the result of his doing.

[26] Having regard to what I have stated herein above, the explanation advanced, the invasive nature of the relevant statute applicable in casu, there are sufficient reasons which warrant the exercise of the discretion of this Court in favour of the respondent, to permit the respondent to participate in these proceedings. These are the reasons for my having granted the condonation and permitted the respondent to participate in these proceedings.

AD FORFEITURE

[27] The issue to be consideredherein, is whether the motor vehicle involved herein is an instrumentality of the theft of the manhole

covers. The respondent in his answering affidavit states denies that the motor vehicle is an instrument of theft. He says that he did not need the motor vehicle to commit the theft. He says that he could have carried the manhole without the motor vehicle.

[28] In casu it has been contended on behalf of the NDPP that the motor vehicle in casu was closely associated with the commission of the offence. It has also been emphasized on behalf of the applicant that the purposes of the covers stolen by the respondent from MEDUNSA is to prevent vehicles from damages by water drains on the campus on the ground of the University. It was also emphasized that the University has suffered, because it has to pay money for expensive surveillance equipment and has to pay insurance premiums to protect its property. It is submitted that the motor vehicle of the respondent made it possible for him to commit the crime he was charged with. It is further contended that forfeiture of the motor vehicle will deter the respondent and other members in the community from committing crimes and using their property as instruments to commit an offence.

[29] The question of instrumentality has been a subject of various decided cases. What emerges from most of the cases, in my view, is that, there is no particular definition that it can be said fits all. The question of materiality, in my view, must be decided on a case by case basis, premised on the peculiar circumstances of a particular the case. 1 am of the view that it is also necessary to have regard to the offence concerned, the potential pecuniary gain involved as well as the property involved.

[31] In the matter of Singh v National Director of Prosecutions {supra) at 514e- 514515 b it Theron AJA stated: “It is accordingly held that; (a) there must be a reasonably direct link between the property and the criminal use and (b) the use of the property must be functional to the commission of the crime and that the property must substantially facilitate, make possible or be instrumental in, and not incidental to, the commission of the offence.”

[32] The words instrumentality were held to mean that “the property must play a reasonable direct role in the commission of the offence. In a real or substantial sense the property must facilitate or make possible the commission of the offence. As the term ‘instrumentality’ itself suggests (albeit that it is defines to extend beyond its ordinary meaning), the property must be instrumental in, and not merely incidental to, the commission of the offence. For otherwise there is no rational connection between the deprivation of property and the objective of the Act.”

[33] With regard to proportionality, the respondent was sentenced to a fine of 6 months or R3000, 00 wholly suspended. In my view, the sentence imposed, by the very nature of it being wholly suspended, and the nominal fine imposed, it cannot be said that it would deter others from committing crime9. I therefore, find that there is no rational connection between the intended forfeiture and the sentence. If the forfeiture envisaged

does not advance the purpose of the POCA, then such forfeiture will be arbitrary and unconstitutional10.

[34] The respondent has stated that he needs the motor vehicle for purposes of generating income for himself and his minor child. He has also stated that he and his son are HIV positive. Having regard to the health of the respondent, which is not disputed, and the purpose of the use of the motor vehicle, coupled with the sentence imposed, the cumulative effect of all these facts, in my mind, justify that in the exercise of my discretion, I should grant the order sought, even if I were to find that the motor vehicle is closely associated with the commission of the offence, and I therefore hold as such. In the light hereof, I find it not necessary to interrogate whether the motor vehicle is closely associated with the commission of the offence.

[35] In the result I am of the view that the application should be dismissed with costs. It is trite that cost follow the event.

[36.] Consequently I make the following order:

(a) That the application is dismissed;

(b) That the applicant must pay the costs of the application, inclusive the costs of the condonation application, on a party and party scale.

N.M MAVUNDLA

JUDGE OF THE COURT

HEARD ON THE: 23 /04 /2009

DATE OF JUDGEMENT: 07 /05 /2009

APPLICANT’S ATT: STATE ATTORNEY

APPLICANT’S ADV: MS. M BOONZAIER

FIRST RESPONDENTS’ ATT: PRETORIA JUSTICE CENTRE.

FIRST RESPONDETS’ ADV: MS. STEENEKAMP

1 Paginated page 30 is the return of service of the Deputy Sheriff which indicates the manner of service "by proper service of a copy of the DRAFT ORDER was properly served upon Dorah Diremelo (Giri friend) at the place of RESIDENCE of the Respondent, a person at the above address, apparently not less than 16 years of age, apparently in charge of the premises at the time of service, after explaining the nature and contents thereof to the said person served.”

2' POCA (Act 121 of 1998 provides inter alia: “39(5) An appearance under subsection (3) shall contain full particulars of the chosen address for the delivery of documents concerning further proceedings under this Chapter and shall be accompanied by an affidavit stating- (a) full particulars of the identity the person entering the appearance: (b) the nature and extent of his or her interest in the property concerned; and (c) the basis of the defence upon which he or she intends to rely in opposing a forfeiture order or applying for the exclusion of his or her interest from the operation thereof.

2' POCA (Act 121 of 1998 provides inter alia: “39(5) An appearance under subsection (3) shall contain full particulars of the chosen address for the delivery of documents concerning further proceedings under this Chapter and shall be accompanied by an affidavit stating-

(a) full particulars of the identity the person entering the appearance:

(b) the nature and extent of his or her interest in the property concerned; and

(c) the basis of the defence upon which he or she intends to rely in opposing a forfeiture order or applying for the exclusion of his or her interest from the operation thereof.

3 S 49 of Prevention of Organized Crime Act.

4 S49(3) The High Court may grant an applicant an applicant referred to in subsection (1) leave to enter an appearance in terms of section 39(3) within the period which the Court deems appropriate, if the Court is satisfied on good cause shown that such applicant- (a) has for sufficient reasons failed to enter an appearance in terms of section 39(3); and (b) has an interest in the property which is subject to the preservation of property order.

4 S49(3) The High Court may grant an applicant an applicant referred to in subsection (1) leave to enter an appearance in terms of section 39(3) within the period which the Court deems appropriate, if the Court is satisfied on good cause shown that such applicant-

(a) has for sufficient reasons failed to enter an appearance in terms of section 39(3); and

(b) has an interest in the property which is subject to the preservation of property order.

5 At B-204 [Service 29. 2007], vide also Wahl v Prinswil Beleggings (Edms) Bpk (1(SA).

6 1962 (3) SA 18 at 23C-D

7The Constitution of the Republic of South Africa Act, No 108 of 1996 provides inter alia: “ 25 Propertv-(l) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

7The Constitution of the Republic of South Africa Act, No 108 of 1996 provides inter alia:

“ 25 Propertv-(l) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

8 The Constitution (supra) provides, inter alia, that: “Access to courts S34 Everyone has the right to have any dispute that can be resolved by the application of the law in a fair public hearing before a court or where appropriate another independent and impartial tribunal or forum”

8 The Constitution (supra) provides, inter alia, that:

“Access to courts S34 Everyone has the right to have any dispute that can be resolved by the application of the law in a fair public hearing before a court or where appropriate another independent and impartial tribunal or forum”

9 Vide the unreported judgment of in NDPP v Johan Swart (SECPD) Case No. 801/03 Leach J said “ (I must say I find a fine of R5 000, 00 for the illegal possession of abalone having a value of R160 000, 00 is hardly likely to act as a deterrent...”) Where the accused

9 Vide the unreported judgment of in NDPP v Johan Swart (SECPD) Case No. 801/03 Leach J said “ (I

must say I find a fine of R5 000, 00 for the illegal possession of abalone having a value of R160 000, 00 is hardly likely to act as a deterrent...”)

Where the accused

10 Vide Singh v National Director of Pubiic Prosecutions (supra) at 515a-b where the Court said: “Cook Properties also held that forfeiture would be unconstitutional if it did not rationally advance theobjectives of POCA because such forfeiture was ‘not contemplated by or permitted under the Act.”

10 Vide Singh v National Director of Pubiic Prosecutions (supra) at 515a-b where the Court said:

“Cook Properties also held that forfeiture would be unconstitutional if it did not rationally advance theobjectives of POCA because such forfeiture was ‘not contemplated by or permitted under the Act.”