National Director of Public Prosecutions v Mlahleki and Another (233/2006) [2007] ZAECHC 140 (26 November 2007)

FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES:

NDPP APPLICANT

and

S N MLAHLEKI FIRST RESPONDENT

X MLAHLEKI SECOND RESPONDENT

Case Number: 2353/2006 High Court: EASTERN CAPE DIVISION DATE HEARD: 26-11-2007…………….

DATE DELIVERED:29-9-2008

JUDGE(S): NEPGEN J……

LEGAL REPRESENTATIVES –

Appearances:

For the Applicant (s): H VAN DER LINDE SC………… for the Respondent(s): P DAUBERMANN…………………….

Instructing attorneys:

Appellant(s): STATE ATTORNEY Respondent(s): PETER DAUBERMANN

CASE INFORMATION -

Nature of proceedings : Civil Matter Topic: ……………………… Key Words:

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

Case No: 2353/2006

In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant

And

SIGNORIA NOSISI MLAHLEKI First Respondent

XOLANI MLAHLEKI Second Respondent

JUDGMENT

NEPGEN, J:

[l] On 13 June 2006 the National Director of Public Prosecutions (NDPP). applied for and obtained a preservation of property order in terms of Section 38 of the Prevention of Organised Crime Act, No 121 of 1998 (POCA). The property which was subject to this order was described therein as follows;

“1. Erf 42007 Ibhayi also known as 24 Yoyo Street, Zwide, Port Elizabeth;

2. Furniture at 24 Yoyo Street, Zwide,

3. Proceeds in First National Bank account number 74056018945;

4. Proceeds in First National Bank account number 62054590437;

5. A black Ford Bantam 1300 Explorer motor vehicle with registration number BHG 416 EC in the Second Respondent's possession;

6. A sum of R 44 689.58 in cash seized at 24 Yoyo Street, Zwide, Port Elizabeth and kept under Mount Road SAP 13/778/2006;

7. A sum of R 5 838.00 in cash seized at 119 Koyana Street, Zwide, Port

Elizabeth and kept under Mount Road SAP 13/1125/2003: and

8. Bail in the amount of R 9 000.00 held by the Clerk of the Court, Port Elizabeth Magistrates' Court under case numbers 27/3294, 3295 & 3296/2006 under receipt numbers D 98229, D982230 and D 982231 ("the property"),"

[2] The NDPP in due course brought an application under Section 48 (1) of POCA that the property referred to in the preservation order be declared forfeit to the State, This application was opposed by first respondent, but only in respect of the immovable property at 24 Yoyo Street, Zwide, Port Elizabeth (for convenience hereinafter referred to as the house); the furniture in the house; and the money in the two First National Bank accounts. The basis of first respondent's opposition was a denial that the property was an instrumentality of an offence and a denial that such property constituted the proceeds of unlawful activities. Eventually, on 17 October 2006, an order was made by agreement that the Ford Bantam motor vehicle; the sum of R 5 838.00 seized at 119 Koyana Street, Zwide. Port Elizabeth; and the bail in the amount of R 9 000-00 be forfeited to the State. The order further contained me usual provisions in orders of this nature, but in respect of the property to which first respondent, laid claim as well as the sum of R 44 682,88 seized at the house, the matter was postponed for the hearing of oral evidence "on the question whether same are liable to forfeiture in terms of Section 50 (1) of the Act".

[3] The matter eventually came before me for the hearing of oral evidence. At such hearing the applicant called a number of witnesses, whereas first respondent was the only witness who testified on her behalf. Apart from Steenkamp, the investigation shift manager at the Boardwalk Casino in Port Elizabeth, who testified in respect of gambling activities conducted on a card belonging to first respondent, the applicant's witnesses were police officials. Two of these witnesses, namely Inspector Qingana and Constable Lawu, testified with regard to a number of controlled sales involving mandrax tablets which took place during the period March 2006 to May 2006, although Qingana also testified with regard to events which occurred before that. The. other police witness was Captain Kapp, who gave evidence in respect of alleged drug dealing which occurred at the house over a number of years,

[4] First respondent purchased the house from the Fort Elizabeth Municipality on,8 May 1989 for a price of R 5 825.10. First respondent resides in the house, as do other members of her family. According to the police evidence a number of drug related offences had been committed at the house over a number of years. Qingana testified with regard to an incident on 8 May 1997. He bad no personal knowledge of this matter, but was able to obtain details thereof from official police records. From the information available to me it appears that on that occassion 70 mandrax tablets were found at the house and subsequently two persons were charged, with and, according, to Qingana, convicted of dealing in mandrax. The next specific incident of which mention was made occurred on 27 October 2003. According to Qingana he received information from a reliable source that there were drugs being stored at the house. He immediately followed up this information and went to the house. There was some delay in gaining access to the house because the security door was not open. After having waited for some time Qingana climbed onto a boundary wall of the property and eventually observed two plastic bags being thrown from the direction of the house. He went to these bags. He opened one and saw money inside. He thought that the second bag contained drugs. He picked up both bags and proceeded to the police vehicle. He opened the boot in order to place the bags therein, but at that stage first respondent called him and told him that he should not take her things, claiming to be the owner thereof, She told Qingana that this money had been obtained in connection with a club to which she belonged. He testified that she told him she got the money from "mafele", which he said was like a stokvel. It transpired that both bags were full of money. A total amount of R 128 020.00 was seized, which apparently included money that first respondent had in her handbag. The notes were sent for forensic investigation and it was determined that there were traces of methaqualone on the money. The house was also searched on this occasion but no drugs were found. Arising out of this incident first respondent was arrested and charged with dealing in drugs. She was acquitted on this charge. After first respondent's acquittal, the money was handed back to her.

[5] The next specific events in respect of which evidence was lead were the controlled sales. This is merely a different terminology for what were previously routinely referred to as police traps. Seven of these controlled sales took place. Apart from the last of them, being the one carried out on 10 May 2006 at a Sasol Garage in Motherwell, Fort Elizabeth and which involved second respondent (who is the son of first respondent), they all occurred at the house. On each of these six occasions mandrax tablets were purchased at the house by two police officials, referred to as "undercover agents", being Constable Lawu and Constable Lupondwana. Video recordings with sound were secretly made of each of these transactions. These video recordings were viewed by me when Lawu testified in relation to the sales. On three of these occasions first respondent was present at the house, At this stage it is unnecessary to refer to the evidence as to whether she participated or was even aware of the fact that such transactions were taking place. Details of the controlled sales appear in the list of admissions furnished by first respondent, which is exhibit "B". On each occasion the same procedure was followed, with Lupondwana making the visual recording and Lawu being involved in the purchasing of the mandrax. On three occasions the mandrax tablets were sold by a person referred to as Sango, whose full name is apparently Sangolomzi Hakosi On two occasions the mandrax tablets were sold by first respondent's daughter, Lungiswa Patricia Mlahleki. On the other occasion the mandrax tablets were sold by first respondent's granddaughter, Asanda Mlahleki. The dates upon which these sales took place were 20 March 2006; 24 March 2006; 30 March 2006: 4 April 2006; 11 April 2006; 19 April 2006.

[6] I consider it unnecessary to refer in detail to what occurred on the occasion of each controlled sale. Suffice it to say. that on every occasion the agents went to the house in order to purchase the mandrax tablets. In some instances their visit to. the house was preceded by a telephonic, arrangement to meet there. What was apparent from the video recording was that on at least two occasions Sango had to leave the mom in which they all were in order to fetch the tablets that were being purchased. It was quite clear that he was away for a relatively lengthy time. There was also an occasion when Lawu wanted to purchase 25 mandrax tablets but was told that there were only 14 and that she would have to wait to get the additional 11 tablets. This was in relation to a sale that was carried out by first respondent's daughter. On that occasion, according to Lawu's evidence, she waited for approximately 10 minutes for these 11 tablets to be brought to the house.

[7] Qingana testified that as a result of these controlled sales he obtained a search warrant and eventually on 5 June 2006 went to the house in order to conduct a search and make arrests. He testified that 2 mandrax tablets were found in the house. Cash was also found in the wardrobe in first respondent's bedroom. It is common cause that the amount thereof was R 44.682.88 (which differs from the amount referred to in the preservation order). This money was seized by the police. It is convenient to mention at this stage that first respondent made no claim to this money in her affidavit apposing the application for an order for forfeiture. In fact, she testified that this money also belonged to a stokvel and that it was in her possession because she was the person who kept the money for the club.

[8] It is common cause that as a consequence of the controlled sales having taken place Sango was charged with and convicted of three counts of dealing in mandrax tablets and sentenced to a fine and a suspended term of imprisonment; whereas the plaintiff's daughter Patricia was charged with and convicted of two counts of dealing in mandrax tablets and also sentenced to a fine and a suspended period of, imprisonment,

[9] It is necessary, at this stage, to deal with the evidence of Kapp. He is a policeman who testified that he has extensive experience in respect of drug related offences. He testified that during the period 1990 to 2002, and as a result of information received, from what he stated were reliable sources, regarding alleged drug dealing at the house, he "visited" the house on approximately four occasions. What these so called visits amounted to were in fact raids of the house. Kapp testified that nothing was found at the house on any of the raids. He then referred to the incident during 1997 which resulted in two persons being arrested. Under cross-examination he stated, however, that the first accused in that matter was a police officer who was not residing at the house and that he could not say whether the other person was convicted. Like Qingana, Kapp did not have personal knowledge of this incident. Despite slating that the house had been known to him as a "drug post" since 1990 and search warrants having being obtained, he was not aware of drugs having being found at the house nor of any other person having being convicted up to 2002, He said that the furniture at the house consisted of a number of luxury items. The furniture can be seen on the photographs forming part of the papers before me. Under cross examination Kapp further confirmed that the house, "is a residential house". He stated that it had not been adapted for the manufacturing or storage of drugs and that he would not say that it had been adapted in any way to facilitate dealing in drugs. Kapp repeated the fact that he had found no drugs at the house during the. period 1990 to 2002, despite having obtained search warrants. Kapp said that thereafter the file was closed as it was impossible to focus on one property only. However, he insisted that the house is a drug outlet. According to Kapp the fact that the controlled sales took place inside the house, together with the history of the matter, indicated that the house was an instrumentality of the offence of drug dealing.

[10] In contending that the house was used as an instrumentality of the offence of drug trafficking, applicant's counsel relied on the fact that the house had been kept under surveillance for many years; that acting on information art arrest occurred at the house during 1.997; that the surveillance was kept up and that further searches were carried out, although they came to nought; that the incident during 2003 indicated an intention to hide the money because it was illegal money; that there were further searches until the controlled sales took place; and that the sales relied upon were all concluded in the house.

[11] In National. Director of Public Prosecutions vs Geyser and another. [2008] ZASCA 15; [2008] 2 All SA 616

(SCA) Howie P said the following at 620 g-[para 17]:

"To be an instrumentality of an offence the property concerned must by definition in POCA, be "concerned in the commission" of that offence. As the cases have interpreted that definition, the property must facilitate commission of the offence and must be directly causally connected with it so that it is integral to commission of the offence"

[12] On the basis of the evidence placed before me there is, in my view, no room for a finding that the house was so directly causally connected with the sale of mandrax tablets that it can be said to be integral to the commission of such offence. In fact, the evidence appears to indicate the contrary.

Despite a number of police searches having being carried out, there, was only one occasion when persons were arrested and convicted prior to 2006, and that was in 1997. Despite so-called reliable information, no drugs were found at the house during the raid carried out during 2003. The fact that traces of methaqualone were found on the money seized in the plastic bags at the time cannot assist the applicant for, as Kapp testified, a large amount of money in general circulation is contaminated by drugs. Kapp even went so far as to say that it was quite possible that money in his wallet at the time he testified could be contaminated by drugs. The fact that the controlled sales took place inside the house is a direct result of the manner in which the trap was arranged on each occasion. The two police officials went to the house in order to purchase the mandrax tablets. Had they arranged for each of these sales to take place at the Sasol Garage in Motherwell, as happened on 10 May 2006; it could hardly be. said that such Sasol Garage was an instrumentality of the offence, 1 do not consider that it makes any difference that there had previously, for a considerable length of time, been suspicions that the house was a drug post. Even if there were more than suspicions, there was clearly nothing that happened to establish the correctness of any belief there may have been in this regard. The evidence does not come close to establishing that the house was used to store the drugs that were sold. In fact, when regard is had to how long it took for the drugs to be brought to the police officials on the occasions when mandrax tablets had to be fetched, the contrary appears to be indicated. Finally, a sale of mandrax tablets can take place anywhere. While one would not expect criminals to sell drugs openly (although some are brazen enough to do so), one does not need the confines of a residential property in order to. effect such sales. In all the circumstances I am unable to hold that the property was an instrumentality of the offence of drug trafficking. A forfeiture

order cannot be granted.

[13] I have not referred to the money in the two First National Bank accounts. It has been unnecessary to do so for I was informed by counsel at the outset of the hearing that these need not concern me.

[14] The somewhat vexed question remains as to what .should be done with the amount of R 44 682.88. As already stated, first respondent herself lays no claim to this money. However, she testified, and there is nothing to indicate the contrary, that she kept this money on behalf of persons who belonged to a club. No members of this club are before me, nor are the identities of any other members known. In all the circumstances it seems to me that I should order that this money be handed back to the person in whose possession it was found, namely first respondent. She must then deal with it as she would have if the police had not seized it. There is certainly no justification whatsoever to declare this money forfeit to the state.

JJ NEPGEN JUDGE OF THE HIGH COURT

JJ NEPGEN

JUDGE OF THE HIGH COURT

[15] The order that I make is that the application for forfeiture of the items referred to in paragraph 8 of the order of court dated 17 October 2006 is refused, with costs. Such items must be restored to the possession of first respondent.