National Director of Public Prosecutions v Braun and Another (11244/2006) [2009] ZAWCHC 33; 2009 (6) SA 501 (WCC) (23 March 2009)

IN THE CAPE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

REPORTABLE CASE NO: 11244/2008

In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS Applicant

vs

WERNER GERHARD BRAUN First Defendant

VILLABRAUN (PTY) LTD Second Defendant

JUDGMENT BY : Z F JOUBERT, AJ

For the Applicant(s) : Adv. A SCHIPPERS SC

Adv. J EASTWOOD

Instructed by : M KAJEE

State Attorney

22 Long Street

Cape Town

For the Respondent(1) : Adv. J MULLER SC

Adv. D MELUNSKY

Instructed by : KULENKAMPFF & ASSOCIATES

57 Caledon Street

SOMERSET WEST 021 – 851 5155

(Ref: D R Kulenkampff)

Respondent(2) : Adv. R KEIGHTLEY

Adv. A SKELTON

Instructed by : SCHLIEMANN INCORPORATED

2 Fairview Centre, Caledon Street

SOMERSET WEST 021 852 7511

(Ref: J E Schliemann)

Date(s) of hearing : Wednesday 11 March 2009

Judgment delivered : Monday, 23 MARCH 2009

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No: 11244/2006

In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS Applicant

and

WERNER GERHARD BRAUN First Respondent

VILLABRAUN (PTY) LTD Second Respondent

________________________________________________________________

JUDGMENT: 23 MARCH 2009

Z F JOUBERT AJ

The Applicant seeks a Forfeiture Order in terms of Section 50(1) of The Prevention of Organised Crime Act, Act No. 121 of 1998 (“POCA”).

The application relates to Erf 1084, Bakkershoogte, also known as 27 Waveren Avenue, Helderberg Estate, Somerset West (“the property”), owned by the Second Respondent.

The property is the subject of a Preservation Order issued in terms of Section 38(2) of POCA, which was granted on 22 December 2006.

The Applicant avers that the property was an “instrumentality” in respect of certain offences committed by the First Respondent during the period 2003 to 2005. It is the Applicant’s case that the First Respondent, Mr Werner Gerhard Braun (“Braun”) engaged in unlawful sexual intercourse and committed other sexual acts with children under the age of 16 at the property, and that these acts constituted offences listed in Schedule 1 to POCA.

It was common cause during the hearing that Braun had had sexual relations with a number of young girls, many of them sex workers, at various locations in the area surrounding the property in Somerset West. What was in dispute, were the Applicant’s contentions

relating to the number of occasions and the regularity with which this occurred at the property. Braun claims to have only taken three of the girls to the property and to have had sexual relations with only two of them at the property. The Applicant contends that he took more girls there and he committed unlawful and indecent acts with the girls at the property on many more occasions.

The application reveals a very disturbing pattern of on-going sexual abuse which carried on for years and would presumably have gone undetected, were it not for a program broadcast on National Television and the diligence of the Investigating Officer, Inspector

Coetzee (“Coetzee”). On 4 September 2005 the SABC broadcasted a program called “Special Assignment” which featured an edition entitled “Minor Exposure”, about a German national who allegedly paid minor girls in the Macassar area to have sexual intercourse with him. The following day, “Die Son” newspaper published an article entitled ”Jong kinders word ‘porno sterre’” together with a photograph of one of the children. Coetzee used this photograph to track down a 13 year old girl. The investigation led him to the other complainants. A criminal investigation against Braun for numerous offences under the Sexual Offences Act, No. 23 of 1957, followed.

A day later, that is to say on 5 September 2005, Braun fled the country with his wife.

Coetzee and Inspector Smit (“Smit”) both of whom are attached to the Family Violence, Child Protection and Sexual Offences Unit of the South African Police Service (“SAPS”), are investigating six cases involving charges of unlawful carnal intercourse with girls under the age of 16, attempted rape, and soliciting or enticing girls under the age of 16 to commit immoral or indecent acts. They have obtained Affidavits from eleven children (ten of them female) in which numerous instances of sexual abuse at the hands of a white man initially known to them as “Jack” or “Gareth”, and who was subsequently identified as Braun. Nine of the children are complainants in the criminal cases investigated by Coetzee and Smit.

After Answering Affidavits had been filed on behalf of the Second Respondent, further Affidavits were obtained from some of the

children in which they set out further allegations concerning the activities of Braun. Coetzee explains in his Affidavits that it has been his experience that children who are the victims of the type of crimes committed by Braun, often tend to be reluctant to come out with all the details initially for a number of reasons. Braun had deposed to an Affidavit on behalf of the Second Respondent in which he claimed that, as far as the property was concerned, the acts committed by him related to only two of the girls the other girl having visited the property with him but that he had heard a noise and thought that his wife had returned home and for this reason, nothing had happened between himself and the third girl.

Braun’s modus operandi involved driving around in his BMW X5 motor vehicle and approaching children either directly, or through other children with whom he had already made contact. He favoured young girls. Braun solicited the children to perform sexual acts with him. The complainants say that these activities took place on numerous occasions and at numerous locations as well as at the property. Further down, in the same street, is a property, No. 7 Waveren Avenue, which apparently belongs to a friend of his. A number of the incidents occurred at that property, which is a double-storey house.

The sexual activities in which Braun engaged with the children included soliciting them to perform oral sex on him, to touch his genitals, and to engage in sexual intercourse with him. He masturbated in their presence while touching their breasts and/or genitals. He touched the children’s genitals in various ways – performing oral sex on them, and using a vibrator. He also inserted his fingers into their genitals. In this way Braun broke the hymen of one of the children who was 12 at the time.

Braun often picked up two or three children at the same time and engaged in sexual threesomes and foursomes with them. A number of the children state that Braun touched their breasts or genitals without their consent or that he carried on engaging in indecent and lewd behaviour after they had asked him to stop.

All the children state that they were paid in cash by Braun for engaging in sexual activities with him.

The events described in the Affidavits took place repeatedly over a period of at least two years that ended in September 2005.

In responding to the allegations, Braun admits to “consorting” with girls from the Macassar and Somerset West areas and paying them money for sexual services. He also states that his family and friends did not know about his “association with any of the complainants”.

On 4 September 2005 Braun fled the country to Namibia. He was accompanied by his wife. They left their BMW X5 motor vehicle at the airport in Windhoek. They flew to Frankfurt on 5 September 2005.

A warrant for Braun’s arrest was issued on 26 October 2005 but it has not been executed since Braun had already fled the country on 4 September 2005. Braun has made it clear that he has no intention of returning to South Africa. It is unlikely that he would be prosecuted in South Africa for the crimes in question and it is uncertain whether he will be prosecuted in Germany, since the German authorities have not directed a formal request for mutual legal assistance to the South African authorities, despite the Applicant having extended an offer of such assistance.

The Applicant also sought, and was granted, a Preservation Order in respect of the BMW X5 motor vehicle which has been recovered from Namibia. An Application for Leave to Appeal to the Supreme Court of Appeal in this regard has been granted.

This application concerns the “civil forfeiture” of property under Chapter 6 of POCA, that is to say, forfeiture which is not dependant on a successful criminal prosecution.

Section 48(1) of POCA provides that, if a preservation of property order is enforced, the National Director of Public Prosecutions may apply to the High Court for an order forfeiting to the State all or any property that forms the subject of the preservation order.

Section 50(1) provides that the High Court shall (subject to Section 52) make a forfeiture order if it finds, on a balance of probabilities, that the property is an instrumentality of an offence referred to in Schedule 1.

The power to grant a forfeiture order is subject to two qualifications:

22.1 The forfeiture must be proportionate, that is to say, it must not constitute an arbitrary deprivation of property in contravention of Section 25 (1) of the Constitution; and

22.2 Section 52 provides that, when making a forfeiture order in terms of Section 50(1), the Court may exclude certain interests in specified circumstances (the so-called “innocent owner defence”).

It was, quite correctly, not contended by Mr Muller SC, on behalf of the Respondents, that the offences did not constitute Schedule 1 offences in terms of POCA.

Braun’s conduct constituted an offence under the Sexual Offences Act until various provisions of that Act were amended in 2007 by t he Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act No. 32 of 2007.

In addition, Section 17 of the Amendment Act provides as follows:

“A person (‘A’) who unlawfully and intentionally engages the services of a child complainant (‘B’), with or without the consent of B, for financial or other reward, favour or compensation to B or to a third person (‘C’) –

(a) for the purpose of engaging in a sexual act with B, irrespective of whether the sexual act is committed or not, or

(b) by committing a sexual act with B, is, in addition to any other offence which he or she may be convicted of, guilty of the sexual

exploitation of a child.”

Section 17 is to be found in Part 2 of Chapter 3 of the Amendment Act.

Schedule 1 of POCA includes, in item 9, any offence contemplated in Part 2 of Chapter 3 of the Amendment Act.

POCA defines an “instrumentality of an offence” as “any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the Republic or elsewhere.” (Section 1 of POCA emphasis added).

In National Director of Public Prosecutions v (1) R O Cook Properties (Pty) Ltd; (2) Gillespie Street Durban (Pty) Ltd and Another; (3) Seevnarayan 2004 (8) BCLR 844 (SCA) at paragraph 31, the Supreme Court of Appeal held that there must be a reasonably direct functional relationship between the property and the crime:

“ … the words ‘concerned in the commission of an offence’ must … be interpreted so that the link between the crime committed and the property is reasonably direct and the employment of the property must be functional to the commission of the offence … [T]he property must play a reasonably direct role in the commission of the offence. In a real or substantial sense the property must facilitiate or make possible the commission of the offence.” (my emphasis)

It was further held that “ … the nature, location, attributes or appointment” of the immovable property must play some distinctive role in the crime (paragraph 55).

In National Director of Public Prosecutions v Parker [2006] 1 All SA 317 (SCA), it was held that the repeated use of immovable property for criminal purposes may render that property an instrumentality of an offence even where the property had not been specially adapted for criminal purpose (paragraph 42).

In National Director of Public Prosecutions v Engels 2005 (3) SA 109 (C) at paragraph 13, the Supreme Court of Appeal held that in order to prove that a property is an instrumentality of an offence:

“… the NDPP cannot be confined to an isolated incident of criminal conduct; on the contrary, the more such incidents can be established, the more easily the inference may be drawn that the property in question is indeed an instrumentality of an offence.”

It was submitted on behalf of the Applicant that the property is an instrumentality of an offence, because it was used to repeatedly

commit offences under the Sexual Offences Act. It was further submitted that the property was not incidental to the commission of the offences and that each time that Braun used the property, the offences committed there were premeditated and planned.

Mr Schippers SC submitted, on behalf of the Second Respondent, that although Braun does not admit the allegations contained in the children’s Affidavits, he also does not deny the serious allegations of sexual abuse and that instead he attempts to

side-step them by stating:

“I do not propose dealing in extenso with all the allegations contained in the various affidavits filed on behalf of the Applicant.”

Mrs Rosemarie Gudrun Braun, his wife, who deposed to the Answering Affidavit on behalf of the Second Respondent, refers to a series of photographs which are included in the papers in which various portions of the property are depicted, and which were produced in response to photographs contained in the Applicant’s papers, and makes the following averments in this regard:

“The photographs give the lie to the Applicant’s insinuation that the property was especially well equipped for the First Respondent’s

clandestine sexual encounters. No less than 8 properties have a view over 27 Waveren Road.”

As far as the question of instrumentality is concerned, she states the following in her Affidavit:

“There was no direct link between the property and the sexual abuse of any of the girls. In this regard I am advised and verily believe that it is well-established that the mere fact that a crime was committed at a certain place does not by itself make that place an instrumentality of the offence.

The First Respondent could have taken the girls in his car to an isolated spot, as is evident he sometimes did. Or he could have rented a room in any one of a number of establishments which rent rooms for casual sex. Or he could have taken the girls to the other immovable property to which it is clear he also sometimes took them. This was the double-story house at 7 Waveren Avenue, identified in paragraph 63.5 of Coetzee’s affidavit in the application for a preservation of property order. … The Second Respondent’s attorneys have procured an affidavit from the First Respondent in which he states that he very seldom took the girls to the Second Respondent’s immovable property and that on most occasions when he had sex with girls other than in his vehicle

or at the beach, it occurred at number 7 Waveren Avenue, and not at the Second Respondent’s property. …

The property was not important or relevant to the illicit sexual intercourse which took place on it. The crimes of which the First Respondent has been charged do not require that they take place inside or at any premises. The property was merely one such place where the crimes were allegedly committed. …

Furthermore, the girls were brought to the immovable property, they did not use it as a place from which to conduct sex-work. They plied their trade on the streets. The property immovable (sic) no doubt just happened to be one of many places – houses, cars, hotels, parks, beaches – where they were taken to perform the services which they offered.

The immovable property’s existence was therefore never necessary for the sexual intercourse which took place between the First Respondent and the girls he picked up, but was entirely incidental to their financial and sexual dealings. Apart from perhaps a few limited occasions over the course of a number of years, the house was not otherwise used for such purposes. And even though it was used for illicit intercourse on those occasions, the house never lost its character as our family home.

The Applicant is plainly wrong in alleging that “numerous sexual offences” were committed on the Second Respondent’s property. The Applicant’s conclusion that the First Respondent’s conduct evidenced a “pattern” is wholly unjustified. I point out, for example, that the detailed description by one of the complainants in paragraph 17 of Mopp’s affidavit refers to stairs (“As ‘n mens by die deur kom gaan jy op met die trappe. Daar is bo ‘n kombuis en ‘n sitkamer”). This is most certainly not a description of 27 Waveren Avenue.

It is also evident that none of the complainants who attended Gordon High School … ever visited the Second Respondent’s property.

In their affidavits they all describe a double storey (“dubbelverdieping”) house. Accordingly, Mopp’s contention in paragraph 19 of his affidavit that the house afforded the First Respondent a place where he would not “have had to explain the presence of the children in their school uniforms” lacks a factual basis.”

In an Affidavit deposed to in Germany, Braun states the following:

“7. I took only three girls to 27 Waveren Avenue. I engaged in sexual activities there with only two of them. Contrary to the picture

painted by the Applicant, 27 Waveren Avenue was not at all a safe venue for sexual activities. It was, in fact, extremely risky for me to take any girls to 27 Waveren Avenue. My wife and I lived there together and there would always have been a very material risk of detection in that:

We enjoyed the services of a gardener;

A domestic worked cleaned the house on a number of days each week;

My wife could have returned home from an outing and surprised me;

My wife and I had a large circle of friends in Somerset West who were also retired persons and there would always have been the danger of an uninvited visitor; and

The property is quite visible from Waveren Avenue and from various neighbouring house.

8. It was because of these factors that I took only three girls to 27 Waveren Avenue. I took them their (sic) individually. All three of them were sex workers and had been for some time before I met them. They were: … “

He then provides the details of the three girls he contends he took there.

He goes on to state:

“9. Each of these girls requested me to show them my home and that was the primary reason why I took to 27 Waveren Avenue. The last girl I took there was Natalie Arendse. As mentioned, I thought that my wife had returned home early on that occasion. The fright it caused me resulted in my not taking any girls to the house again.

10. Nor was it ever necessary for me to take girls to 27 Waveren Avenue for sexual encounters. I had in my possession and control, at all material times, the keys and/or remote controls of various properties owned by friends and acquaintances. These were foreign nationals who owned immovable property in South Africa, but who spent relatively short periods of time there. I was able to access their properties as an when I chose.

11. One of the properties to which I had access, and which I used to engage in sexual activities, was the property situate at 7 Waveren Avenue. It was a double storey house with a staircase leading from the garage into the living area. In contradistinction, 27 Waveren Avenue was a single storey house and did not have any staircases.

12. The property at 7 Waveren Avenue features prominently in the affidavits of some of the complainants. I took Estelle Scheepers there on one occasion. I also took Rosaline Otto, Davidene Jordaan, Judith Petersen, Lauren Baker and Geraldine Demas there.

13. Apart from the three girls referred to above (Scheepers, Jordaan and Arendse), two other girls identified 27 Waveren Avenue as the place where they engaged in sexual activities with me. These girls are Martha and Geraldine Demas. I deny their allegations in this regard, which are manifestly false.”

As was pointed out by the Second Respondent’s Counsel, the onus rests upon the Applicant to establish on a balance of probability, that the many offences which he contends were committed on the property were:

committed there;

that the property was an instrumentality of such offences; and

that the forfeiture of the property would meet the constitutional imperative of constitutionality, that is to say, that it would be “proportional”. - Prophet v National Director of Public Prosecutions 2007 (6) SA 169 (CC) at paras [55], [130] and [131].

The factual disputes stand to be resolved according to the rule laid down in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C. It cannot, in my view, be said that the averments contained in Braun’s Affidavit are so far fetched or

clearly untenable as to warrant their rejection on the papers.

Mr Schippers understandably did not submit that Mrs Braun’s version should to be rejected.

Applying the Plascon-Evans principle, Braun’s version that he had sex with only two of the complainants at the property, has to be accepted for the purposes of this application.

The Second Respondent was incorporated in 1999 for the sole purpose of owning the property. It was purchased by the Second Respondent for R850 000,00 and transferred into its name in March 1999. It is the Second Respondent’s only asset and had a value in mid-2007 of R4.5 Million.

The property consists of a one bed-roomed dwelling with a separate flatlet. It is a single storey house without any staircases.

The property had been intended to be the home of Braun and his wife in their retirement. Until they left South Africa on 4 September 2005 it had been their home. The daughters stayed in it on occasion and looked upon it as their family home.

The sole shareholder of the Second Respondent is a Trust which Braun and his wife established in 2001.

Mrs Braun and Braun were the only directors of the Second Respondent until December 2005, when Braun resigned at his wife’s insistence. Thereafter she was and has remained the sole director of the Second Respondent.

The only beneficiaries of the Trust are the three daughters of the Braun’s.

Mr Muller dealt extensively in his submissions with the various Affidavits deposed to by the complainants. He highlighted a number

of contradictions and improbabilities. It is not necessary to dwell upon these. The circumstances under which the Affidavits were recorded, the tender age of the deponents, the trauma to which they must have been exposed, notwithstanding the fact that, except for that in the case of one of the young girls, they were generally willing participants in the sexual encounters with Braun.

In Mohunram & Another v National Director of Public Prosecutions & Another (Law Review Project as Amicus Curiae) [2006] ZASCA 12; 2007 (4) SA 222 (CC), t he following passage from an unreported Judgment of Stegmann J., National Director of Public Prosecutions: In Re Application for Forfeiture of Property in terms of sections 48 and 53 of the Prevention of Organised Crime Act, 1998 (Act 121 of 1998) WLD case No 2000/12886, 7 July 2000, was quoted with approval (at para 45):

“The mere fact that a particular offence was committed on a particular property would not necessarily entail the consequence that the property was “concerned in the commission” of the offence, or that the property had become an “instrumentality of an offence”. It seems to me that evidence of some closer connection than mere presence on the property would ordinarily be required in order to establish that the property had been “concerned in the commission” of the offence.”

When one is dealing with immovable property, additional factors come into play. In National Director of Public Prosecutions v Parker 2006 (3) SA 198 (SCA) at para [28] Cameron J., stated:

“ … providing a location is not enough. Either in its character or in the way it is used, the immovable property must itself in some way make the commission of the offence possible or easier.”

As was submitted by Second Respondent’s Counsel, the proper approach when considering the criminal instrumentality of the property, is to consider the overall impression which the various uses of the property create. In the Parker case, Cameron J., described the approach to be followed at paragraph [38]:

“Where evidence of adaptation or storage is lacking, and t he police case depends principally on the frequency with which the property serves as a venue for criminal conduct, the characterisation of the property as a criminal instrumentality necessarily becomes a question of degree. As Nkabinde AJA observes (paras [16] – [18], it is necessary to consider the overall picture. This was also the approach in Prophet (para [27]): as held there, the Court must be able to conclude, after considering the totality of the circumstances, that the property was a substantial and meaningful instrumentality in the commission of the offences.”

In my view, and on the basis of the version which I am obliged to accept for the purposes of this application, the property had little or no connection with Braun’s extensive sexual relations with the young girls. Many, if not the majority of the crimes took place elsewhere, many in public places. The property was not “an instrumentality” in the commission of the offences and on this basis alone, the application must fail.

In the event that my finding that the property was not an instrumentality in the commission of the offences being incorrect it

would be necessary to consider the question of proportionality.

The Courts have held that proportionality is a governing principle imposing limits on how the powers granted under POCA may be exercised.

In the Prophet case, the Court held (at paragraph 58) that the proportionality enquiry requires a “weighing [of] the severity of the interference with individual rights to property against the extent to which the property was used for the purposes of the commission of the offence, bearing in mind the nature of the offence.” The following factors were held to be relevant to such an enquiry:

whether the property is integral to the commission of the crime;

whether the forfeiture would prevent the further commission of the offence and its social consequences;

the nature and use of the property;

the effect of the forfeiture of the property on the respondent(s); and

whether the “innocent owner” defence is available to the respondent(s).

As was submitted by Mr Schippers on behalf of the Applicant, the purpose of a proportionality enquiry is to ensure that the

forfeiture does not constitute arbitrary deprivation of property nor violate other constitutional rights. The proper application of a proportionality analysis weighs the forfeiture on the one hand against the purposes it serves on the other. The Constitutional

Court has held that the primary purpose of forfeiture is to deter persons from using or allowing their properties to be used for crime.

In the Mohunram case, Moseneke DCJ., stated at paragraph [120] that:

“Courts in this country and elsewhere have generally been astute to the fact that forfeiture of the instrumentalities of crime can produce arbitrary and unjust consequences. In the words of the minority judgment of Ponnan JA in Prophet v National Director of Public Prosecutions:

‘(C)ourts should be vigilant to ensure that the statutory provisions in question are not used in terrorem and that there has been no overreaching and abuse.’”

59. As was submitted by Mr Muller on behalf of the Second Respondent, the purpose of forfeiture is to remove the incentive for crime, not to punish the offender. The deterrent effect of POCA is achieved by stripping criminal of the proceeds or fruits of their crimes and removing the incentive for crime. The purpose of POCA is not to punish and it is also not a substitute for ordinary forms of law enforcement.

60. In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance [2002] ZACC 5; 2002 (4) SA 768 (CC), Ackermann J., referred to the facts which are relevant to establishing “sufficient reason” for the deprivation of property. Of particular relevance for the present case is the following dictum at paragraph [100]:

“Generally speaking, where the property in question is ownership of land or a corporeal movable, a more compelling purpose will have to be established in order for the depriving law to constitute sufficient reason for the deprivation than in the case when the property is something different, … “

61. As was submitted on behalf of the Second Respondent, the fact that not the whole property was used for the commission of the offences, is significant and a consideration which militates against forfeiture.

62. It was further pointed out, on behalf of the Second Respondent, that Braun’s activities were far removed from the principal purpose of POCA. They had nothing to do with organised crime, racketeering, money laundering or criminal gang activity. On the version which I am obliged to accept for the purposes of this application, the property was used for unlawful sexual activities only on two occasions.

63. The property at no stage belonged to Braun. It is a valuable piece of real estate which was purchased ultimately for the benefit of Braun’s children.

64. Having regard to the limited number of offences which occurred on the property and the other matters and circumstances to which I have referred, a forfeiture would be disproportionate. For this reason, also, the application should fail.

65. In the result, the application against the Second Respondent is dismissed with costs, such costs to include the costs of two Counsel.

__________________________

Z F JOUBERT AJ

19 March 2009