National Director of Public Prosecutions v Khoza and Others (44862/2021) [2024] ZAGPPHC 1324 (19 December 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case number: 44862/2021

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHERS JUDGES: NO

(3) REVISED:

In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT

and

TSHEPO KHOZA

1ST DEFENDANT

(In his personal capacity as well as director of 2nd and 3rd defendants)

BLACK REBEL PROJECTS (PTY) LTD

2nd DEFENDANT

Registration number 2012/105388/07

GREY APPLE TRADING ENTERPRISE (PTY) LTD 3RD DEFENDANT

Registration number 2012/1053881/07

MOSIAMIEMANG MATHILDA KHOZA

4th DEFENDANT

ADELINE LUNGISWA SHEZI

5TH DEFENDANT

JOSEPH MNYATO KHOZA

RESPONDENT

JUDGMENT

MOTHA, J:

Introduction

[1] In terms of section 26 of the Prevention of Organized Crime Act 121 of 1998 (POCA), on 8 September 2021, the applicant obtained a provisional restraint order against the defendants, coupled with a rule nisi calling upon the defendants to show cause why the order should not be made final. Having obtained orders confirming the rule nisi against the fourth and fifth defendants, on 27 May 2024 and 26 September 2024 respectively, the applicant seeks the confirmation of the restraint order against the first, second and third defendants. After filing their notices to oppose, the first, second and third defendants failed to file their answering affidavits. Consequently, before this court, there is no evidence on behalf of these defendants.

[2] Counsel for the three defendants submitted that they were not obliged to file any opposing papers and would rely entirely on poking holes in the founding affidavit. With that said, it is trite that, in motion proceedings, affidavits constitute both pleadings and evidence[1], meaning both facta probanda and facta probatia. Indeed, the absence of opposition does not, automatically, mean that an applicant has a free reign. It must still make out its case. Whilst on this issue of establishing a case, it bears to mention that the evidential threshold is very low, in casu. In terms of s 25 of POCA, all that a court needs to do is to enquire if there are reasonable grounds for believing that a confiscation

order may be made against that person.

The parties

[3] The applicant is the National Director of Public Prosecutions, appointed in terms of section 10 of the National Prosecuting Authority Act 32 of 1998, read together with Section 5 (2)(a) of the Act and section 179 (1)(a) of the Constitution of the Republic of South Africa Act, 1996.

[4] The first defendant is Tshepo Khoza, the director of the second and third defendants and son of the fourth defendant, Matilda Khoza, who is the sister of the fifth defendant, Lieutenant General Adeline Lungiswa Shezi.

[5] The second and third defendants are Black Rebel Projects Pty (Ltd) and Grey Apple Trading Enterprise Pty (Ltd), Companies registered in accordance with the provisions of the Companies Act 71 of 2008, as amended.

Factual summary

[6] The first defendant (Tshepo Khoza) is the only director of the second (Black Rebel) and third (Grey Apple) defendants. According to the uncontested and unchallenged evidence in the founding affidavit, he is probably the only shareholder in both defendants. Tshepo Khoza is the nephew of the fifth defendant, Shezi. In 1991, Shezi joined the South African Police Service (SAPS) as a Sergeant in the position of a forensic analyst assistant at the National Head Office and rose through the ranks. On 20 May 2014, she was appointed as the Acting Divisional Commissioner of Technology Management Services (TMS). On 1 February 2015, she was appointed as a Lieutenant General within functional personnel SAPS and transferred to National Head Office: (TMS) as the Divisional Commissioner.

[7] On 28 November 2014, SAPS awarded a contract valued at R486 000.00, to deliver 450 000 A4 DL pamphlets trimmed and folded to Z fold, to Black Rebel. Brigadier Lesego Magdeline Sizani (Sizani) was the central figure in the award of the contract. She authored the document that was a formal request for the procurement of A4 size DL (Z fold). Since the estimated cost for the delivery of the pamphlets was below R500,000, Sizane, in her affidavit, said it was not necessary to utilize a tender process, and sourced three quotations from three different compliant suppliers. Strangely, she did not remember how the three service providers were

chosen. These preferred service providers were:

· Zenith which quoted R495 000.

· Wavelengths which quoted R499 500; and

· Black Rebel which quoted R486 000.

[8] When approached for comment, the owners of Zenith and Wavelengths denied any knowledge of the submission of the quotes.

[9] Sizane stated that she was friends with Shezi, whom she had known since 2000, and worked with from 2004 to 2006 and again in 2011 until May 2014. As friends, they frequently contacted each other. Only after the awarding of the contract did she know that Tshepo was related to Shezi. She knew he was her nephew as Tshepo used to stay with Shezi.

[10] On 16 January 2016, SAPS awarded Grey Apple a contract, valued at R476 250.00, to supply first aid kits. Before the award of this contract, Grey Apple did not trade. In this instance, the owners of the two other service providers, who competed with Grey Apple for the contract, stated that they were approached and persuaded by Tshepo to form companies and bid for the supply of first aid kits to SAPS. Both Du Plessis, the owner of Nimdu, and Diale, the owner of Moruanyi Trading Enterprise, filed affidavits in

which they highlighted the role played by Tshepo in the submission of their bids. Interestingly, both disavowed completing the first page which dealt with the written price quotation.

[11] In the absence of any evidence to the contrary, there is merit in the assertion made by the applicant that the evidence indicates that: [2]“Tshepo would complete documents on behalf of others without their knowledge or would use their information to complete documents on their behalf with their knowledge and in so-doing manipulating the allocation of the tender allocation.”. Moreover, since Tshepo [3]“(through Shezi) knew the procedures and methodology used by SAPS,” he could manipulate the process to get the contracts.

The law

[12] Dealing with the test for the confirmation or discharge of a rule nisi in these cases, the court in National Director of Public Prosecutions v Kyriacou[4] held that:

[5]“What is required is no more than evidence that satisfies a court that there are reasonable grounds for believing that the court that convicts the person concerned may make such an order.”

[13] In the matter of National Director of Public Prosecutions v Rautenbach and Another,[6] the court held that:

[7]“It is plain from the language of the Act that the court is not required to satisfy itself that the defendant is probably guilty of an offence, and that he or she has probably benefited from the offence or from other unlawful activity. What is required is only that it must appear to the court on reasonable grounds that there might be a conviction and a confiscation order. While the court, in order to make that assessment, must be apprised of at least the nature and tenor of the available evidence, and cannot rely merely upon the appellant’s opinion (National Director of Public Prosecutions v Basson 2002 (1) SA 419 (SCA) para 19) it is nevertheless not called upon to decide upon the veracity of the evidence. It need ask only whether there is evidence that might reasonably support a conviction and a consequent confiscation order (even if all that evidence has not been placed before it) and whether that evidence might reasonably be believed. Clearly that will not be so where the evidence that is sought to be relied upon is manifestly false or unreliable and to that extent it requires evaluation, but it could not have been intended that a court in such proceedings is required to determine whether the evidence is probably true. Moreover, once the criteria laid down in the Act have been met, and the court is properly seized of its discretion, it is not open to the court to then frustrate those criteria when it purports to exercise its discretion...”

[14] A restraint order is broadly speaking akin to an anticipation order. It serves the purpose of securing property for a confiscation order to be satisfied. Examining the purpose of a restraint order, the court in Rautenbach held:

“The purpose of a restraint order is to preserve property in the interim so that it will be available to be realized in satisfaction of such an order.[25] A court from which such an order is sought is called upon to assess what might occur in the future. Where it is ‘satisfied that a person is to be charged with an offence’ and that there are ‘reasonable grounds for believing that a confiscation order may be made against such person’ (s 25(1)) it has a discretion to make a restraint order.[26] The court a quo approached the matter as follows: ‘The Act requires that it must be shown that “grounds” exist which grounds appear to a court to be of such a nature that they would support a future confiscation order. This means that, as a first requirement, the Applicant has to prove the existence of such “grounds”. That is a factual question and according to section 13(5) of the Act, the onus of proving such facts must be discharged by the Applicant on a balance of probabilities.'”[8]

[15] Section 25 (1) of POCA provides the following:

“A High Court may exercise the powers conferred on it by section 26 (1)

(a) When

(i) a prosecution for an offence has been instituted against the defendant concerned

(ii) either a confiscation order has been made against that defendant or it appears to the court that there are reasonable grounds for believing that a confiscation order may be made against that defendant; and

(iii) the proceedings against the defendant have not been concluded

Or

(b) When

(i) that court is satisfied that a person is to be charged with an offence; and

(ii) it appears to the court that there are reasonable grounds for believing that a confiscation order may be made against such person”

Issues

[16] Focusing on the Declaration of Interest form (DI), counsel for Black Rebel submitted that para 98 of the Supporting Affidavit was incorrect to record that Tshepo or Black Rebel failed to declare interests as required. He insisted that the question enquired whether Black Rebel or Tshepo was presently employed by the state. I agree with his reading of paragraph 2.7 of DI, however, we part company on his reading of paragraph 2.9 of DI.

[17] Paragraph 2.9 of DI enquires of the bidders the following: “Are you or any person connected with the bidder, aware of any (family, friend, other) between any other bidder and any person employed by the state who may be involved with the evaluation and or adjudication of the bid?” When further examining this paragraph, counsel for the defendants submitted that their answer in the negative was correct.

[18] I cannot fathom a scenario in which Tshepo was not required to declare his relationship with Shezi or at the very least his knowledge of Sizane.

[19] As if that was not enough, the defendant answered in the negative paragraph 2.10, which asked: “Are you, or any person connected with the bidder, aware of any relationship (family, friend, other) between any other bidder and any person employed by the state who may be involved with the evaluation and or adjudication of this bid?”

[20] Viewed accumulatively, the conclusion is inescapable that the defendants did not want to take the SAPS into their confidence. What is one to make of Tshepo’s answer in the negative to paragraph 2.11, which asked: “Do you or any of the directors/ trustees/ shareholders/ members of the company have any interest in any other related companies whether or not they are bidding for this contract?” When completing the form for the Blue Apple, it was incumbent on Tshepo to declare his relationship with the Grey Apple.

[21] In her affidavit, Sizane stated that she knew that Tshepo was related to Shezi, when the second contract was awarded. Despite possessing such knowledge, she processed Grey Apple’s application and eventually, it won the contract.

[22] For these and many other reasons, such as that Tshepo supplied false information to SAPS as reflected in paragraph 150 of the supporting affidavit, this court cannot but conclude that there are reasonable grounds for believing that a confiscation order may be made against the defendants.

[23] In 2015, Shezi bought a house, at 2[...] R[...] Avenue L[...] Pretoria, which she partly demolished and rebuilt to her taste. Since she was short on funds, she asked her nephew, Tshepo Khoza for assistance. Having received a total of R962 250.00 through Black Rebel and Grey Apple, Tshepo contributed to the renovation of the property by paying R70 000.00 cash to Shezi via Doron Construction (a company that was doing the renovations at her house), on 8 August 2015. Black Rebel made a Hundred Thousand Rands (R100 000.00) contribution via Doron Construction.

[24] Hence, the applicant alleges that a corrupt relationship existed between Shezi, Tshepo, Black Rebel, Grey Apple and one of the service providers of TMS Bayard.

Conclusion

[25] The evidential burden placed on the applicant is so low that it would be impossible to rebut it without tendering any evidence. It did not help that the defendants relied on the perceived weakness and internal inconsistencies of the applicant’s case. On the available evidence, the court is persuaded that there are reasonable grounds for believing that a confiscation order may be made against the defendants. In the result, the provisional restraint order is confirmed. The defendants are ordered to pay the costs of the application jointly and severally.

ORDER

The provisional order dated 8 September 2021 in respect of the first, second and third Defendants is confirmed with costs. The Defendants are jointly and severally liable for the costs.

M.P. MOTHA

JUDGE OF THE HIGH COURT, PRETORIA

Date of hearing: 27 May 2024, 18 June 2024, 26 September 2024

Date of judgment: 19 December 2024

APPEARANCES:

COUNSEL FOR APPLICANT: S DE VILLIERS INSTRUCTED BY: STATE ATTORNEY COUNSEL FOR DEFENDANTS: M SALUKAZANA INSTRUCTED BY: TTS ATTORNEYS INC

[1] Minister of land affairs and agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA) para 43

[2] Founding affidavit para 29.5.1.2

[3] Supra para 29.5.2.1.

[4] [2003] 4 All SA 153 (SCA); 2004 (1) SA 379 (SCA).

[5] Supra para 10

[6] [2005] 1 All SA 412 (SCA); 2005 (4) SA 603 (SCA); 2005 (1) SACR 530 (SCA) (22 November 2004)

[7] Supra para 27

[8][8] Supra paras 24 to 26