National Director of Public Prosecutions v Kalmar Industries SA (Pty) Ltd (456/2015) [2016] ZAECPEHC 69 (29 September 2016)

National Director of Public Prosecutions v Kalmar Industries SA (Pty) Ltd (456/2015) [2016] ZAECPEHC 69 (29 September 2016)

The court found that the property alleged to have been stolen could not be considered an instrumentality of the offence of theft, as it was not used to commit or facilitate the offence. However, the definition of 'proceeds of unlawful activity' in POCA is sufficiently broad to potentially include the stolen items...

Source-derived case information.

Citation
[2016] ZAECPEHC 69
Parties
Applicant: National Director of Public Prosecutions; Respondent: Kalmar Industries SA (Pty) Ltd
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
29 September 2016
Case Number
456/2015
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Forfeiture Order Application
Outcome
Leave to appeal to the Supreme Court of Appeal is granted.
Judges
C Plasket
Legal Topics
Forfeiture Order, Proceeds of Unlawful Activity, Instrumentality of Offence, Prevention of Organised Crime Act
Criminal Law Civil Procedure Forfeiture Order Proceeds of Unlawful Activity Instrumentality of Offence Prevention of Organised Crime Act

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Parties

National Director of Public Prosecutions

Applicant

Kalmar Industries SA (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Forfeiture Order Application

Legal Issues

  1. 1 Whether the property in question is the proceeds of unlawful activity under POCA.
  2. 2 Whether stolen property can be considered an instrumentality of the offence of theft.
  3. 3 Whether the jurisdictional requirements for a forfeiture order under section 50(1) of POCA are met.

Ratio Decidendi

The court found that the property alleged to have been stolen could not be considered an instrumentality of the offence of theft, as it was not used to commit or facilitate the offence. However, the definition of 'proceeds of unlawful activity' in POCA is sufficiently broad to potentially include the stolen items themselves, provided the NDPP can establish the theft and the respondent's possession of the property. The court concluded that there are reasonable prospects of success on appeal regarding whether the property constitutes proceeds of unlawful activity, and granted leave to appeal to the Supreme Court of Appeal without restricting the grounds of appeal.

Court Disposition

Leave to appeal to the Supreme Court of Appeal is granted.

Orders

  • The applicant is granted leave to appeal to the Supreme Court of Appeal.
  • The costs of this application shall be costs in the appeal.