National Director of Public Prosecutions v Mazibuko and Others (6552/05) [2007] ZAKZHC 39; 2008 (2) SACR 611 (N) (14 December 2007)

IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

REPORTABLE

Case No 6552\05

In the matter between :

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS Applicant

and

SAMUEL AFRICA MAZIBUKO First Respondent

ANNA JEANETTE MAZIBUKO Second Respondent

TANYANI JUSTICE MAKHUNGA Third Respondent

J U D G M E N T

NICHOLSON J

INTRODUCTION

1. On 2 November 2005, a preservation order was granted in terms of section 38(2) of the Prevention of Organised Crime Act, No 121 OF 1998 (“the Act”) preserving inter alia :

(a) portion 11 of the farm Spitskop 92 (“the farm”), and

(b) a Venter trailer bearing registration letters and number RCY 126GP (“the trailer”) (hereinafter collectively referred to as “the property”). A further application, sometimes referred to as the second stage of the proceedings was brought by the applicant seeking the following relief :

“1. An order is granted under section 50(1) of the Prevention of Organised Crime Act, No 121 of 1998 declaring forfeit to the State the property described as :

(a) portion 11 of the farm Spitskop No 92 registration division HT, Province of KwaZulu-Natal in extent 124,096 hectares; and

(b) a Venter trailer bearing registration letters and number RCY126GP.”

The matter came before Koen J.

2. The issues that arise at the second stage are as follows :

(a) whether on a balance of probability, the property concerned is an instrumentality of an offence referred to in Schedule 1 to the Act, or is the proceeds of unlawful activities (see section 50(1) of the Act);

(b) whether the property, or the interest in the property, had been acquired legally and whether, on a balance of probabilities, the owner\applicant for the release of the property “… neither knew nor had reasonable grounds to suspect that the property in which the interest if held, is an instrumentality of an offence referred to in Schedule 1 or property associated with terrorist and related activities …” (see section 52(2A)(a) of the Act);

(c) whether proportionality is against the grant of such an order.

3. Mr Combrink, who appeared on behalf of the first and second respondents in opposing the forfeiture of the farm before me and previously before Koen J, conceded in the application before Koen J that :

(a) the farm was an instrumentality of an offence; and

(b) the proportionality argument favours the applicant.

Mr Combrink confined his submissions on behalf of the first and second respondents before Koen J to the issue whether they were innocent owners. Koen J referred that question to oral evidence.

ORAL EVIDENCE

I heard the oral evidence of first respondent for the respondents and Trevor White, Inspectors Khumalo and van Heerden for the applicant.

4. The innocent owner defence is to be found in section 52(2A) of the Act which provides :

“The High Court may make an order under subsection (1), in relation to the forfeiture of an instrumentality of an offence referred to in Schedule 1 or property associated with terrorist and related activities, if it finds on a balance of probabilities that the applicant for the order has acquired an interest concerned legally, and

(a) neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence referred to in Schedule 1 or property associated with terrorist and related activities; or

(b) where the offence concerned had occurred before the commencement of this Act…”.

5. Koen J found, and I agree, that the onus for such an exclusion from forfeiture is upon the owner or party seeking the release of the assets from forfeiture, on a balance of probabilities.

6. The duties prescribed in terms of section 52(2A) of the Act are elaborated upon as follows in the under-mentioned subsections to section 1 of the Act :

“(2) For purposes of this Act, a person has the knowledge of the fact if –

(a) the person has actual knowledge of that fact; or

(b) the court is satisfied that –

(i) the person believes that there is a reasonable possibility of the existence of that fact;

(ii) he or she fails to obtain information to confirm the existence of that fact.

(3) For the purposes of this Act, a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached are those which would have been reached by a reasonably diligent and vigilant person having both –

(a) a general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and

(b) a general knowledge, skill, training and experience that he or she in fact has.”

THE EVIDENCE OF FIRST RESPONDENT

7. The first respondent testified that he purchased the farm towards the end of 2002 and that the purchase price was R300 000,00. The payments were made as follows : he paid an initial amount of R200 000,00; R50 000,00 in July 2003 and R500 000,00 in January 2003.

8. He testified further that at the time he purchased the farm one Thusi had been working for the previous owner. The first respondent subsequently employed him as a herdsman. Thusi received a salary of R250,00 and a bag of maize meal per month. He has an informal dwelling away from the main house.

9. The first respondent gave evidence that he later employed one Mchunu as an induna. He knew Mchunu over a long period of time and he had been previously employed by the first respondent as a taxi driver. He paid Mchunu a salary of R1 000,00 per month. Mchunu lived in the main house on the farm.

10. The first respondent leased the farm to the third respondent Thamyani Justice Makhunga whom he knew well. He claimed to have known the third respondent from the time the latter was a little boy. The third respondent had been involved in operating taxis having inherited the business from his late father. In September 2003 he concluded an oral lease agreement with the third respondent at Spitskop Farm in respect of the said farm. The purpose for leasing the farm to the third respondent was that he had cattle but his herd of cattle were thin, not healthy. That was not the only purpose and he said he was going to manufacture manure and that was going to be used on the sports fields.

11. First respondent said that the rental was agreed at R10 000,00 per year payable at the beginning of twelve months. I was a little surprised to learn that notwithstanding that agreement the third respondent paid the rental within a week of the agreement being concluded. The fact that an erstwhile taxi driver had R10 000 to pay up front is grossly improbable. The money was paid in cash and there is no paperwork to substantiate it. In fact first respondent did no paperwork for the farm at all. All this points to the farming operation being a front for the drug manufacturing exercise.

12. It is clear that the third respondent was going to lease the whole farm and the house. At the time of the lease the first respondent had forty head of cattle, about thirty sheep and two pigs on the farm. He stated that the third respondent advised that he was going to bring a herd of cattle numbering no more than thirty to the farm. The third respondent did not however bring any cattle to the farm. The Court attempted to clarify the lease period and any renewal with little success. He would not say whether there would be one renewal for 12 months or whether it would continue for five years, ten years or forever. The only hint of an answer was that it would continue until his herd recovered.

13. After purchasing the farm the first respondent went there once a month or once in two months. He continued the same procedure after leasing the farm to the third respondent. He would visit the farm for the purpose of paying his employees and check his cattle. He would enter the farmhouse on his visits. He explained that his reason for entering the farmhouse was to get cold water from the refrigerator and to “release himself”. The first respondent did not notice anything unusual in the house and he never entered Mchunu’s room.

14. He only entered the kitchen and toilet. He went to the pigsty but did not notice anything unusual there. The only reason the third respondent did not bring any cattle to the farm was that he had no transport. At the time of his visits to the farmhouse the doors to the rooms were always closed. First respondent had no knowledge that mandrax was manufactured on the farm. He did not notice anything on the farm that should have made him realise that something illegal was happening on the farm.

15. Various photographs were handed in depicting what the police found on the farm. First respondent did not notice any of the substances depicted in Exh E5, nor did he notice any substance elsewhere, nor did he inspect the contents of the garage. First respondent knew nothing of the R29 000 found in cash in Mchunu’s room.

16. First respondent met the third respondent in the police cells after their arrest. He said he was cross with the third respondent and asked him what was happening on the farm.

17. The first respondent was in a number of difficulties under cross-examination. His attention was drawn to an affidavit deposed to wherein he claimed to be the owner of the R29 000 found in Mchunu’s room and was asked to explain the discrepancy in his testimony and affidavit. In his evidence he denied being the owner. He claimed that he did not understand English but significantly when he was asked later by the Court how big the farm was, he answered in English “plus minus 130 hectares”

18. It is also significant that his wife also claimed the money. He claimed he had no knowledge of what happened to the R29 000. His attention was drawn to an order of Court made by consent on 2nd May 2006 in terms of which the curator bonis was directed to pay him (the first respondent) the sum of R29 999. He said he had no idea how that came about. When asked whether he had given his attorneys any instruction to claim that money he stated that he could not recall.

19. The first respondent confirmed that the same attorney represented him from the outset. When asked why his attorneys would claim the R29 000 on his behalf if that had not been his instruction to them he said he would not know. When advised that his attorneys did receive payment of the money from the curator he said he had no knowledge thereof. His attorney did not testify and it was manifest that he was lying in this regard.

20. He reiterated that the main purpose the third respondent leased the farm was to bring cattle to the farm and to manufacture manure. When it was put to him that since the third respondent had not brought any cattle from September 2003 to May 2004 that should have caused him to raise some queries, he was most evasive. The first respondent confirmed that Makhunga did not make fertiliser between September and June. It was clear that as landlord he should be concerned if his tenant was not farming at all. The purpose of the lease depended on it. Any renewals of the lease would depend on how well the first respondent was carrying out his farming operation.

21. He unconvincingly denied that upon his arrest he failed to mention to Inspector van Heerden any agreement about cattle. He further denied that he fabricated a version about a lease for cattle and fertilizer after he had heard the third respondent’s version in the bail proceedings. First respondent conceded that third respondent knew nothing about manufacturing fertilizer as he was a taxi driver. This ought to have been of concern to him as his tenant in case of any renewal of the lease. He conceded that if the third respondent was going to manufacture fertilizer he would never utilise the bedrooms of the main house for that purpose.

22. When asked where he thought would be a reasonable place to manufacture fertilizer on the farm he stated that he did not know “because I had leased the whole farm to him.” When asked why he did not pay attention to the third respondent’s activities on the farm he replied that he trusted him as he knew his father and that he had already paid him the rent.

23. First respondent could have access to the main house at anytime as the place was always left open. In fact anybody could easily walk into the house. If he visited the toilet he could easily see the doors leading off the passage. If any of the doors were open he would have been able to look into the room. He unconvincingly denied that on any visit there was an unusual or strong smell in or around the house. Also quite surprisingly, whenever he went to visit Mchunu he never met with him inside the house.

24. There are numerous photographs by the police showing the drugs and the apparatus on the farm. He never saw any of the items recorded by Inspector van Heerden in his affidavit or captured in the album of photographs. This was grossly improbable.

25. First respondent told a most improbable tale very badly.

THE EVIDENCE FOR THE APPLICANT

26. Trevor White, the curator bonis, testified that pursuant to the order of Court and at the request of the first respondent’s attorneys, he paid the sum of R29 000,00 into their banking account. The aforesaid amount was never repaid by the said attorneys. The above evidence was not disputed and the witness was not cross-examined.

27. Inspector Khumalo testified that he was based at Newcastle Crime Intelligence. On 22 June 2004 (the night Mchunu and first respondent were arrested) he went to Spitskop farm. He entered the farmhouse accompanied by Inspector Jacques Nel and Mchunu. Mchunu opened the door leading into the house. They entered the kitchen. As they walked down the passage there were rooms with doors open. He could see a substance like mud on the floor, and heaters and fans in both rooms. The witness was also not cross-examined. Mr Combrink placed on record that the first respondent was not challenging any of the observations made by this witness.

28. Inspector van Heerden also went to Spitskop farm. He recorded his observations which appear in his affidavits in support of the application and took various photographs of the rooms, substances found therein as well as the adjoining structures and the area around the pigsty.

29. It was placed on record that the first respondent did not dispute any of his observations and could not dispute that the photographs correctly recorded what was found on the farm. It is said that a picture is better than a thousand words. A perusal of the photographs of the apparatus and the trailer shows an operation that was beyond the means of third respondent. It also was conducted in a manner that must have been seen by the first respondent.

30. Inspector van Heerden testified that if one walked around the house one could see what was inside some of the rooms because there were some rooms without curtains. If one walked around the house at night one could easily see the heaters on inside the rooms. He testified further that if one walked around the house it was not necessary to walk right up to the window to see inside the rooms.

31. If one was about eight to ten metres away from the window one could still see easily inside the rooms. He sensed the smell emanating from the house which was strong. It reminded him of a combination of vinegar and battery acid. He experienced the smell as he alighted from his car. He confirmed that the ground outside the pigsty was scorched as if something had been cooked there. He pointed out that in the outbuilding chemicals and a number of large cooking pots were found. These could be seen through a wire cage. Nothing of significance emerged during van Heerden’s cross-examination.

32. It is clear from the first respondent’s evidence that he attempted to disassociate himself from the unlawful activities on the farm by relying on an alleged lease agreement. He also denied noticing any unlawful activities on the farm.

33. It is common cause that drugs in the form of mandrax in large quantities were manufactured on the premises and various items including pots and containers, used in connection with the manufacture of drugs were found in and around the farmhouse. It is also clear from the evidence of van Heerden that no attempt was made to conceal the manufacturing of drugs or the items used to manufacture them. Even more significantly Mchunu who the first respondent referred to as his induna lived in the very house where the drugs were manufactured.

34. The first respondent’s evidence cannot be accepted. It is inconceivable that anyone involved in the manufacture of mandrax (and to the scale herein) would have taken no precautions to keep the operation as clandestine as possible. By this I mean that as tenant third respondent must have wanted to keep his activities away from first respondent if the latter was innocent.

35. The only reasonable inference that can be drawn from the present circumstances is that the first respondent knew that drugs were being manufactured on the premises; that he was involved directly therein or at the very least he acquiesced in their manufacture.

36. The first respondent disavowed any knowledge of the R29 000,00 found in Mchunu’s room while testifying. He could not explain however, why his attorneys not only claimed the money but received it on his behalf. This was the clearest sign of his mendacity.

37. The first respondent lived only 70 kilometres away. The state of the pots and the equipment and the presence of R69 000 in cash on the farm lead to the most plausible inference that drugs were being manufactured for some considerable period. The age and personal circumstances of the third respondent make it improbable that he had the means to set up the operation. That he as a taxi driver would know how to make commercial fertiliser is ridiculous.

38. It was common cause that the first respondent had to discharge the onus of establishing the elements set out in section 52(2A) of the Act.

39. The purpose of Chapter 6 of the Act inter alia is to recruit property owners into an active role as guardians of their property against crime. The Supreme Court of Appeal endorsed the view that :

“property owners cannot be supine ……

The State is constitutionally permitted to use forfeiture, in addition to criminal law, to induce members of the public to act vigilantly in relation to goods they own or possess so as to inhibit crime. In a constitutional state law-abiding property owners and possessors must, where reasonably possible, take steps to discourage criminal conduct and to refrain from implicating themselves or their possessions in its ambit. And the State is entitled to use criminal sanctions and civil forfeitures to encourage this. Here constitutional principle recognizes individual moral agency and encourages citizens to embrace the responsibilities that flow from it."

National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National Director of Public Prosecutions v 37 Gillespie Street, Durban (Pty) Ltd and another; National Director of Public Prosecutions v Seevnarayan (2004) 2 All SA 491 (SCA) (“Cook Properties”), paras 28 and 29.

40. It is clear that the first respondent :

(a) knew that the drugs were being manufactured on the premises; alternatively

(b) failed to act with the degree of vigilance and care as required by section 52(1)(3) and as set out in the Supreme Court of Appeal in the Cook decision.

41. I am of the view that the first respondent has failed to discharge the onus upon him in terms of section 52 (2A)(a) and that his application for the exclusion of the property from forfeiture should fail.

SHOULD SECOND RESPONDENT FORFEIT HER SHARE IN THE FARM?

42. The first and second respondents are married to each other in community of property. The property which the applicant seeks to have declared forfeit is immovable property. The immovable property is an asset in the joint community estate. Mr Govindasamy submitted that the whole property should be forfeited rather then the first respondent’s half share. All this is posited on the basis that the second respondent, his wife was an entirely innocent party.

43. In developing his argument as to why the whole farm should be forfeited, Mr Govindasamy referred to the stated purpose of the Act inter alia to :

“introduce measures … for the civil forfeiture of criminal assets that have been used to commit an offence …”.

This pointed to the Legislature intending civil consequences to an apparent criminal process.

44. He also pointed out that :

“the South African common law and statutory law fail to deal effectively with organised crime … the criminal gang activities.”

“and legislation is necessary to provide a civil remedy for the preservation and seizure, and forfeiture of property which is derived from unlawful activities or is concerned in the commission or suspected commission of an offence.”

(Preamble)

45. He further submitted that in the Cook case the Supreme Court of Appeal has commented as follows in various passages on the nature of the forfeiture provisions :-

“We were urged to characterise chapter 6 as ‘penal’ and for this reason to construe its provisions restrictively. The NDPP, by contrast, urged us to affirm the remedial objectives of the legislation and for this reason to interpret its definitions amply. Neither contention by itself seems to us to offer an adequate guide.”

(See Para 16)

“………… The legislature has expressly ordained that proceedings under the chapter are ‘civil … not criminal’ (section 37(1)), and its provisions are clearly remedial. Yet none of this diminishes the fact that the provisions have some penal element. At the same time, the chapter’s punitive dimension does not mean that its sole or even predominant aim is to punish those implicated. As pointed out in Mohamed(1), the primary objective of provisions of this sort is ‘to remove the incentive for crime, not to punish’ criminals.”

(See Para 17)

“The inter-related purpose of chapter 6 therefore seems to us to include

(a) Removing incentives for crime;(b) deterring persons from using or allowing their property to be used in crime, (c) eliminating or incapacitating some of the means by which crime may be committed (‘neutralising’, as counsel put it, property that has been used and may again be used in crime); and, we would add, (d) advancing the ends of justice by depriving those involved in crime of the property concerned. At least (b) and (d) embody a palpably penal aspect; but the statutory objectives transcend the merely penal.”

(See Para 18)

46. He submitted that what is targeted is the property involved in the commission of a crime. It should not be overlooked, however, that the property as such is inanimate and is only seized and forfeited as an instrumentality of the crime.

47. I accept the law requires immovable property to be registered in the joint names of spouses married in community of property. Section 29 of the Matrimonial Property Act amended section 17 of the Deeds Registries Act 47 of 1937 with the consequence that real rights in immovable property which form part of a joint estate are required to be registered in the name of the husband and wife.

48. I accept also the Matrimonial Property Act, No 88 of 1984, introduced significant changes to the common law with regard inter alia to the matrimonial power of spouses and alienation of assets.

49. The Matrimonial Property Act created mechanisms for the disposal by either spouse of certain assets and the recourse that spouses had against each other in the event of a spouse acting in a manner that would prejudice the joint estate.

50. Mr Govindasamy pointed out that section 14 for instance provides as follows :

“Subject to the provisions of this Chapter, a wife in a marriage in community of property has the same powers with regard to the disposal of the assets of the joint estate, the contracting of debts which lie against the joint estate, and the management of the joint estate as those which a husband in such a marriage had immediately before the commencement of this Act”.

51. He referred to the commentary on the legislation by Hahlo (The South African Law of husband and wife Fifth edition) who states as follows :

“Faced with choice between joint and concurrent administration, the legislature has adopted as a principle concurrent administration.

Just as in a partnership, each partner is the agent of the partnership and binds the other partners by his acts, so each spouse represents and acts on behalf of both.”

52. I accept also that the Matrimonial Property Act recognises that an innocent spouse in a marriage in community of property is liable to third parties for delicts and that section 19 provides for recovery by the creditors from both spouses. Section 19 provides as follows :

“When a spouse is liable for the payment of damages, including damages for non-patrimonial loss, by reason of a delict committed by him or when a contribution is recoverable from a spouse under the Apportionment of Damages Act, 1956 (Act 35 of 1956), such damages or contribution and any costs awarded against him are recoverable from the separate property, if any, of that spouse, and only in so far as he has no separate property, from the joint estate; Provided that in so far as such damages, contribution or costs have been recovered from the joint estate, an adjustment shall, upon the division of the joint estate, be effected in favour of the other spouse or his estate, as the case may be.”

53. Section 20 provides a mechanism to protect an innocent spouse:

“(1) A court may on the application of a spouse, if it is satisfied that the interest of that spouse in the joint estate is being or will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse, and that other persons will not be prejudiced thereby, order the immediate division of the joint estate in equal shares or on such other basis as the court may deem just.

(2) A court making an order under subsection (1) may order that the community of property be replaced by another matrimonial property system, subject to such conditions as it may deem fit.”

54. Does this mean that the present second respondent, if she discovered that the farm was being used for manufacturing drugs, could apply to have her half share separated to prevent it being forfeited to the State? If the answer is in the affirmative, is this not a clear indication that she should be protected in this matter? We know that she has not done so. Mr Govindasamy conceded that in an ordinary partnership an innocent partner would be protected. In other words he sought to distinguish a marriage in community from an ordinary partnership.

55. Mr Govindasamy quoted the learned authors, Cronje and Heaton in “South African Family Law”, Butterworths, page 85 as follows :

“The generally accepted view is that the universal community of property entails that husband and wife become tied co-owners in undivided and indivisible half-shares of all the assets and liabilities they have at the time of their marriage, as well as all the assets and liabilities they acquire during the marriage. On marriage, the separate estates of husband and wife are automatically merged into one joint estate for the duration of the marriage. All liabilities incurred by either spouse must be paid out of the joint estate. The spouses administer the estate concurrently. At the termination of the marriage, all liabilities are settled from the joint estate and the balance of the joint estate is then distributed equally between the spouses. If the marriage is terminated by the death of one of the spouses, the surviving spouse gets half the joint estate because of his or her ownership thereof and not because he or she inherits it.”

56. Reference was also made to Ex parte Menzies et Uxor 1993 (3) SA 799 (CPD) where King J after referring to various authorities and referring to an excerpt from van der Merwe (Sakereg 2nd edition 1989 at 378 – 379) with approval stated :

“As it stands, the passage quoted confirms that co-ownership of their joint estate by spouses married in community of property is a species of “tied” co-ownership, in which the shares of the spouses are not only undivided but also indivisible, unless a division of the joint estate is ordered in terms of section 20 of the Matrimonial Property Act 88 of 1984 ..”

57. Mr Govindasamy then submitted that in drafting the legislation for civil forfeiture it must be accepted that Parliament was aware that it was not permissible under the law for a court seized with a forfeiture application to order the forfeiture of an indivisible half share of immovable property. The legislation should accordingly be interpreted in a manner to give effect to the purpose of the Act. Having established that the Act targets the property used as an instrumentality it would be impossible for the Courts to grant a forfeiture order if the second respondent had an interest capable of exclusion.

58. The effect of what the second respondent seeks is a legal impossibility so he submitted. Insofar as the effect of a forfeiture order may result in a diminution of her assets eventually the second respondent may well have a claim against the first respondent upon dissolution of her marriage. It is clear that a division of the joint estate can take place on application to the Court if one spouse is prejudicing the interests of the other. This is, of course, if there is no prejudice to the creditors. A division can also occur on divorce.

59. Mr Govindasamy submitted that the second respondent does not have an independent interest in the property which the court can legally exclude from forfeiture. Furthermore in any event the whole of the property being part of the joint estate is liable to forfeiture by virtue of the first respondent’s management thereof on behalf of the community estate.

60. It seems very clear that second respondent could never be charged with the relevant drug offences. Even if a marriage in community of property can be regarded as a partnership the spouse can only be convicted if such spouse cannot prove that she did not take part in the offence and could not have prevented it. See section 332(7) of the Criminal Procedure Act, 55 of 1977. See also R v Levy and others 1929 AD 312 at 320 – 321. While the requirements of justice require an innocent spouse to help pay for damages arising out of contract and delict, is it the intention of the Legislature that criminal conduct should also be included? I am aware that such a forfeiture might well run counter to the Constitutional values of equality and dignity and might also breaches a fundamental principle of our criminal law that the innocent should not be punished.

61. On application by the second respondent a Court could order half the assets of the community estate be forfeited as envisaged by section 20 above. Such an order could be made on divorce as well.

62. Hahlo in the fifth edition of The South African Law of Husband and Wife says the following on page 177 referring to section 19 :

“In the result, the innocent spouse may have to keep paying, at least temporarily, for the damages caused by the other spouse’s negligence, fraud, embezzlement or theft. While this is a departure from the fundamental principle that no one should be punished for the wrong of another – poenae suos tenent auctores - it is a logical consequence of the all embracing community of the common law.”

63. It is interesting that the learned author includes a number of crimes in his comments. Many crimes – certainly those relating to person and property – are also delicts and actionable. It is therefore not anomalous that a wife should forfeit her half share in the farm after a seizure of this nature.

64. Very little is said in the papers about why the second respondent should not forfeit her undivided half share. We do not know much about what the joint estate consists of save we do know about this farm and another property where the respondents live, which is some 70 kilometres away. If her half was saved from forfeiture the anomalous position would arise that the first respondent would still own an undivided half share in that part by virtue of the marriage in community of property.

65. The effect of forfeiture by the second respondent would be that she forfeits an undivided half share in only one of the assets of the joint estate. To make an order preserving her undivided half share in the farm would not preserve her half share in the whole joint estate. If the rest of the joint estate is substantial the second respondent can still apply to Court for a division now. On divorce she may also ask for an order that so divides the estate that her loss of this farm is recouped or compensated for, from other assets.

66. The sympathy one feels for an innocent party like the second respondent is ameliorated by the recourse she has against her husband, the first respondent, who kept his criminal activities from her. This seems to be the lesser evil than that of depriving creditors, in the ordinary course, and the applicant in this matter, from obtaining the redress stipulated in the statute and common law.

67. Mr Govindasamy has referred to two unreported decisions which adopt a similar approach to the present problem.

68. In NDPP v R J Smit and Others (Case No 21014\2001 TPD) Coetzee J dealt with a restraint order under Chapter 5 of the POCA. In terms of section 26 of the POCA the applicant had obtained an ex parte order restraining various respondents from dealing with assets specified in a schedule. The State intended proving that the defendant was involved in various criminal activities including dealing in mandrax. The facts revealed further that certain money of the second respondent to whom the defendant was married in community of property, held in a banking account in Jersey was attached.

69. There was no suggestion that the second respondent was involved in the defendant's criminal activities. In that case the second respondent stated that the money in her account had been bequeathed to her by her father in his will and that the will stipulated that the money would not fall into the communal estate. She argued that those monies cannot be the subject of the restraint order.

70. Coetzee J held

"The second respondent contends that her investment of 100 000,00 British pounds in the Barclays Bank account in Jersey is not the defendant's money. Her father bequeathed the money to her in his will which stipulated that monies bequeathed to her would not fall into the communal estate and that part of that investment was earned by her from business conducted by her. Consequently those monies cannot be the subject of the restraint order.

In my view this is not a sound contention. Assets excluded from the community estate in terms of a will form part of the communal estate as far as creditors of the estate are concerned. If a confiscation order is made against the defendant the applicant would be entitled to attach communal property, including assets bequeathed to the second respondent by her father in terms of the will containing an exclusionary provision. That also applies to any income derived by the second respondent from business activities conducted by her. See in this regard Badenhorst v Bekker NO and Another 1994 266 (N). In my view this contention must also fail."

(See judgment pages 14 and 15).

71. In NDPP v Kaelo Jacob Moronyane and 16 Others (Case No 1351\04 NCD) Majiedt J dealt with a case that also concerned a restraint order issued in terms of sections 25 and 26 of the POCA. In dealing with the position where parties are married to each other in community of property Majiedt J held :

"Where parties are married in community of property, a joint estate is formed - that much is trite in our law. It consequently does not assist any of the respondents\defendants in my view to aver that the assets seized belong to one or the other personally. In the present case the averments are made that the wives, ie the tenth, twelfth and seventeenth respondents, had acquired certain assets in their own name and that therefore cannot be the subject of a restraint order. This argument is fallacious. When regard is had to the definition of realisable property in section 14 of the Act, read with the definition of property in section 1 therefore, it is clear that these respondents who are married in community of property to the ninth, eleventh and sixteenth respondents\defendants respectively, can lay no claim to a separate estate in law."

(See para 13.2)

72. As I have indicated the remedy of the second respondent is set out in section 19 and 20 of the Matrimonial Property Act.