National Director of Public Prosecutions v Fangyun and Others (62/03/01) [2004] ZAGPHC 27 (7 April 2004)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 1962/03

DATE:2004-04-07

In the matter between

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS.............................................. Applicant

and

DONG FANGYUN.................................................................................................First Respondent

DAY KWE KWAN............................................................................................Second Respondent

WY LIN.................................................................................................................. Third Respondent

JUDGMENT

WILLIS, J: This is an application for forfeiture of property in terms of the Prevention of Organised Crime Act No 121 of 1998. The property is presently the subject to a preservation order granted by this court on 27 May 2003. The application is in respect of certain immovable property being Erf 506 Sundowner Extension 7 ("the immovable property"), a BMW motor vehicle with registration number FGY 51 OGP ("the BMW") and a Nissan Sentra motor vehicle having registration number NBM596GP ("the Nissan Sentra") as well as certain movable items which were found at the immovable property and in the Nissan Sentra.

The immovable property belongs to the first respondent, the BMW belongs to the second respondent and the Nissan Sentra belongs to the third respondent.

The third respondent has not opposed the application. The first and second respondents do however oppose the granting of a forfeiture

order.

Counsel for the applicant and the first respondent agreed that the application in respect of the immovable property should be postponed

sine die. The reason is that the Supreme Court of Appeal has recently heard two important cases dealing with forfeiture orders where the owner of immovable property at which a scheduled offence is committed, denies knowledge of the offence. It was felt, wisely in my view, best to await the Supreme Court of Appeal's judgment/s so that any order made in this Division is consistent with the principles set out by the Supreme Court of Appeal in those judgments.

In brief, this case is concerned with the illegal possession of abalone.

Eckardt Albertus Mostert of the Directorate of Special Investigations, senior special investigator and the investigating officer in the matter, was part of the investigative project conducting surveillance on a house suspected of being involved in dealing in abalone. This house is the immovable property to which I have previously referred.

During surveillance conducted during July 2002 a certain Chinese male, who was later identified as the second respondent, was observed driving between the house next to the immovable property, being No. 47 Tourmaline Drive, Extension 7, Randburg, Gauteng and the immovable property. On those occasions he was observed driving either the Nissan Sentra or the BMW.

On 1 August 2002 the second respondent in the company of two African males was observed loading ice from the immovable property into the Nissan Sentra whereafter both vehicles left the premises. The vehicles were followed. They were apprehended and escorted back to the immovable property. The driver of the Nissan Sentra identified himself as Farisane David Taulela ("Taulela"). The driver of the BMW was the second respondent. The passenger who was with the second respondent in the BMW identified himself as Jason Vumile Tuntubele {"Tuntubele"). The occupants of both vehicles were questioned. Upon arrival at the immovable property both the premises and the vehicles were searched. The items listed in the schedule of assets were found and seized at the immovable property and from the Nissan Sentra and include 88 dried abalone from the immovable property and 145 abalone from the Nissan Sentra.

During the course of the surveillance of the immovable property, a further vehicle, namely a Hyundai 16 GLS motor vehicle with registration

number CRG 228GP ("the Hyundai"), was also on various occasions observed coming in and out of the premises. The driver of this Hyundai vehicle was identified as one Gui Mei Fok ("Fok"). Fok was suspected to be a kingpin in the illegal abalone processing operation.

On 8 November 2002, and as a result of a follow up investigation by the DSO, Fok and Taulela were arrested by members of the DSO. This was the second arrest of Taulela, the first being when he was arrested in relation to the incident at the immovable property. Prior to their arrest Fok was driving a Hyundai and Taulela was driving the Nissan Sentra. Investigations revealed that the Hyundai belongs to Fok and the Nissan Sentra to the third respondent.

At the time of his arrest on 8 November 2002 Taulela informed Mostert that he was at the Bedfordview Shopping Centre looking for a piece job when Fok offered him a driving job. He instructed him to drive the second bakkie from Bedfordview to certain premises, being plot number 66, Golf Course Drive, Golf View, Walkerville ("the Walkerville premises").

A search was conducted on both the second bakkie and the Walkerville premises. In the second bakkie they found the box which was opened by Phakathi in front of Fok and Taulela. In the box they found abalone which was counted and amounted to 196 items of dry abalone. At the Walkerville premises they found 35 483 dried abalone and 1 401 wet abalone. All in all 37 080 abalone were found in Fok's possession. They also found similar equipment and items as those found that the immovable property which are generally used for the processing of abalone. The Walkerville premises, like the other immovable property, were set up, it would seem, as an abalone processing plant.

Further investigation revealed that on 20 May 2002 Xicheng Lin (the third respondent's husband) signed a contract of sale to purchase the Walkerville premises from Mr Jacobus Hendrik Albertus for an amount of R27 000. Since the signing of the contract of sale the sale had not been effected. Moreover, when the sale did not go through, Mr Dong, who introduced Xicheng Lin to Hendrik Johannes Van Staden ("the estate agent") agreed with the estate agents that they, Xicheng Lin and Mr Dong would lease the Walkerville premises from the seller.

The second respondent was arrested, charged and ultimately convicted for contravening Regulation 36(1 )(a) of the Marine and Living Resources Act. In his second affidavit resisting the granting of the forfeiture order, the second respondent, having initially denied that he was indeed convicted in terms of this regulation, said as follows: "Apart from the one offence of transporting of abalone there is no evidence to suggest that I am involved in syndicated abalone trading. Even if the Honourable Court concludes from the instruments found in the first Sundowner premises (i.e. the immovable property to which I have referred earlier) that syndicated activities were going on, then I humbly claim that I did not partake in the syndicate's activities other than the day of my arrest and therefore it cannot be said that I paid for the BMW with moneys derived from illegal abalone trading." It seems to be clear that he does not deny that the BMW was indeed used in the commission of the offences relating to the abalone. Furthermore, there is clear evidence in the application for the preservation order supporting a finding that the BMW was used by the second respondent to facility the illegal activities in abalone conducted at the immovable property.

Section 48(1) of the Prevention of Organised Crime Act provides as follows:-

"If a preservation of property order is in force the National Director may apply to a High Court for an order forfeiting to the State all or any of the property subject to the preservation of property order." Section 50(1) of that Act provides as follows:-

"The High Court shall, subject to section 52, make an order applied for under section 48(1) if the Court finds on a balance of probabilities that the property concerned

(a) is an instrumentality of an offence referred to in Schedule 1; or

(b) is the proceeds of unlawful activities."

It was common cause between counsel for the parties that section 52 was of no relevance to this particular application.

Instrumentality is defined in section 1 of the Act. The definition of "instrumentality of an offence" reads as follows:

"Means 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."

Whatever criticism may be levelled against the definition of an

"instrumentality of an offence" in the Act, it is clear on the facts of this particular case that the BMW, and for that matter the Nissan Sentra, were indeed used as instrumentalities of the offences in respect of which convictions were obtained.

Before adjourning the court I indicated to the parties the order which I propose to make. In view of the fact that one is dealing with new principles of law, I believe that the order should be very carefully cast. I am indebted to counsel for preparing the draft order. An order is made in terms of the draft marked "X".