National Director of Public Prosecutions v Mpahlwa (3556/2017) [2020] ZAECMHC 18 (9 June 2020)

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

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

Case No: 3556/2017

In the ex parte application of:

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant

and

NQABA MPAHLWA Respondent

Golf with registration number CF […] used as an instrument of the commission of a robbery

JUDGMENT

BROOKS J:

[1] The applicant is the National Director of Public Prosecutions, appointed in terms of section 179(1)(a) of the Constitution[1] read together with section 10 of the National Prosecuting Act[2] with its offices at 123 Westlake Avenue, Weavind Park, Silverton, Pretoria, Gauteng.

[2] The respondent is Nqaba Mpahlwa, an adult male, at all times material to the facts which gave rise to the commencement of these proceedings resident at Komkhulu Location, Ntlabane Administrative Area in the district of Willowvale, Eastern Cape and currently residing at 23 F[…] T[…], K[…] Street, Brackenfell, Western Cape. He is employed as a technician at The Red Cross Children’s Hospital, Cape Town, Western Cape.

[3] On 8 August 2017, relying upon the provisions of the Prevention of Organised Crime Act[3] (POCA), the applicant obtained an order ex parte in this court and in the following terms (the preservation order):

“The property

1. An order be and is hereby granted in terms of section 38(2) of the Prevention of Organised Crime Act 121 of 1998 (POCA) to preserve a Golf 4 with registration number CF […] used as an instrument of the commission of a robbery.

2. The property shall be under the control of the Willowvale SAP13 clerk until the forfeiture order is granted or the court orders otherwise.

Prohibition on dealing in any manner with the property

3. Subject to the provisions of this order, all persons with knowledge of this order are prohibited in terms of the provisions of section 38(1) of POCA from disposing of, dissipating, interfering with, taking possession of or control over, diminishing the value of, pledging or otherwise hypothecating, attaching or dealing in any other manner with the property to which this order relates.

4. The property shall remain under the effective control of the Willowvale SAP13 clerk until the expiration of this order in terms of section 40 of POCA or until the conclusion of a forfeiture application instituted by the Applicant in respect of the property.

Service and publication

5. The Applicant shall in terms of section 39 of POCA, cause notice of this order, in the form set out in Annexure A hereto, to be published in the Government Gazette as soon as is practicable after the order is granted.

6. The Applicant is directed to give notice of Annexure A hereto to all persons who become known to the Applicant to have an interest in this matter.

Entry of appearance to oppose forfeiture order

7. Any person who has an interest in the property and who intends:

7.1 Opposing the application for an order forfeiting the property to the State;

or

7.2 Applying for an order excluding his or her interest from a forfeiture order in respect of the property,

must enter an appearance giving notice of such intention in terms of section 39(3) of POCA.

8. Such notice shall be delivered to the Applicant:

8.1 In the case of any person specifically identified for service in terms of this order, within 14 calendar days after such service; and

8.2 In the case of any other person, 14 calendar days after the date upon which a notice of the order was published in the Government Gazette.

9. A notice in terms of section 39 must contain full particulars of the chosen address for the delivery of documents concerning further proceedings in this matter and must be accompanied by an affidavit setting out:

9.1 Full particulars of the identity of the person giving notice;

9.2 The nature and extent of his or her interest in the property concerned;

9.3 Whether he or she intends opposing the making of the forfeiture order, or whether he or she intends applying for an order excluding his or her interest in that property from the operation of the order;

9.4 Whether he or she admits or denies that the property concerned is an instrumentality of an offence referred to in schedule 1 of POCA, or is the proceeds of unlawful activities and the basis for such defence; and

9.5 If he or she intends applying for the exclusion of his or her interests from the operation of the forfeiture order, the basis for such application.

10. Any person who is affected by the order may on good cause shown, apply for the reconsideration thereof. Such application shall be made upon 72 hours’ notice (or such shorter period as the Court may determine on good cause shown) to the Applicant and all other persons identified in this order as being persons who may have an interest in the property, and must be made not later than 8 days after the person applying for reconsideration becomes aware of the existence of the order, or within such further period as the Court may consider reasonable, bearing in mind the underlying objectives of Chapter 6 of POCA.”

[4] On 21 June 2018 a notice in terms of section 39 of POCA, drafted in accordance with the content of Annexure A to the preservation order, and a copy of the application papers used by the applicant to obtain the preservation order were served personally upon the respondent at the magistrate’s court for the district of Willowvale by the sheriff.

[5] On 5 October 2018 the respondent filed a notice of his intention to oppose the grant of a forfeiture order. The notice was accompanied by an affidavit deposed to by the respondent in which he sets out his personal circumstances, details of the manner in which the papers in the application which gave rise to the issue of the preservation order were served upon him by the sheriff and the basis of his opposition. This in turn was accompanied by an affidavit deposed to by the attorney who represented him at the time.

[6] On 19 October 2018 a copy of the preservation order was published in Government Gazette number 41892.

[7] On 23 November 2018 the Applicant launched the contemplated application in terms of section 48 of POCA, seeking an order in the following terms (the forfeiture order):

“1. The Golf 4 with registration number CF […] (the property) is declared forfeited to the State in terms of section 50 of the Prevention of Organised Crime Act 121 of 1998.

2. Sakhumzi Nonkasa (Nonkasa) who was appointed in terms of the preservation order shall continue to act as a curator until the matter is finalised.

3. Nonkasa shall sell the property and pay the proceeds of sale into the banking account of the Criminal Assets Recovery Account held at the Reserve Bank, account number 80[…].

4. The Registrar of this Honourable Court is directed to publish a notice of this order in the Government Gazette as soon as practicable

after the order is made.”

[8] Thereafter, on 11 December 2018 the respondent filed a further notice. Therein he indicated that at the hearing of this matter he would seek an indulgence from the court, permitting him to file a supplementary affidavit in amplification of the content of the answering affidavit already filed of record. This second notice was accompanied by two affidavits deposed to by the respondent. In the first, he explains that from the outset it has been his intention to seek the recovery of the property which forms the subject of the forfeiture application and acknowledges that this was not pertinently

stated in the initial answering affidavit filed on 5 October 2018. Accordingly he expresses his intention to seek an order excluding his interest from the operation of a possible forfeiture order. The second affidavit is the supplementary affidavit in which the

respondent confirms the basis of his opposition as set out in his original answering affidavit and pertinently seeks the exclusion of his interests in the property from the operation of any forfeiture order which may issue, as provided for in section 52 of POCA.

[9] The applicant elected not to file a replying affidavit. Much was made of this in heads of argument which were filed on behalf of the respondent by his erstwhile legal representative. The complaint therein contained extended to the observation that it had fallen to the respondent to make arrangements with the registrar for the enrolment of this application on the opposed motion court roll. The overall submission was made that these circumstances demonstrated that the applicant had lost interest in the continuation of the matter. The matter was enrolled for hearing in the opposed motion court on 6 August 2019. Both parties were represented in court. The court file does not disclose why the matter was removed from the roll without any order relating to costs. It was postponed to the opposed motion court roll of 5 March 2020. On that occasion, appearance on

behalf of the applicant was the same but the respondent appeared unexpectedly in person. By agreement between the parties, the matter was postponed to 21 May 2020 and the issue of liability for payment of the wasted costs was reserved. Due to an error in the office of the registrar, this matter did not appear on the opposed motion court roll of 21 May 2020. That court considered it to be in the interests of justice to postpone the matter mero motu to the opposed motion court roll of 28 May 2020 without any order relating to costs and to advise the parties accordingly.

[10] In compliance with the local directives published by the Judge President in accordance with the national regulations pertaining to the national state of disaster caused by the current Covid-19 pandemic, argument in this application was heard utilising a video conferencing facility. The respondent appeared in person. Mr Jakavula, who appeared on behalf of the applicant, offered no opposition to the preliminary applications brought by the respondent. The first sought condonation from the court and addressed the respondent’s tardiness in filing the initial notice in which his intention to oppose the granting of any forfeiture order was expressed. The second was for leave to introduce his supplementary affidavit with condonation for the lateness of his application to seek the exclusion of his interests in the property in the event of a forfeiture order being granted. In the circumstances, both preliminary applications were granted. The initial complaints raised on behalf of the respondent pertaining to laxity on the part of the applicant received little attention from the respondent and the parties very properly confined themselves to argument on the merits of the applications.

[11] It is well established[4] that the applicant is burdened with the onus of establishing on a balance of probabilities that it is entitled to a forfeiture order. This includes establishing that the property which is the subject matter of the proceedings was the instrumentality of an offence and that its forfeiture would not amount to an arbitrary deprivation of property but, in the context of realising the objects of POCA[5], constitutes a remedy that is proportionate to the ends sought to be achieved by its grant.

[12] Where, as in the present matter, pursuant to the commencement of an application for a forfeiture order in terms of section 48(1) of POCA an application is brought in terms of section 48(4)(b) read with section 52 of POCA by a party, such as the respondent herein, seeking exclusionary relief, a second stage in the proceedings is brought about. Herein the onus rests on the party applying for exclusionary relief to establish on a balance of probabilities an entitlement thereto[6].

[13] In matters where both stages of the proceedings are present, the two stages must be decided pari passu because the power of the court to make a forfeiture order in terms of section 50(1) of POCA is subject to the condition set out in section 52 of POCA[7].

[14] Where, as in the present matter, final relief is sought in motion proceedings, the Plascon-Evans rule is applicable to the analysis of the evidential material placed before the court in the affidavits exchanged between the parties. In accordance with this approach, an applicant will be entitled to final relief if the facts alleged by the applicant which have been admitted by the respondent in the opposing affidavits, read together with the facts set out therein by the respondent, justify such relief[8]. The position may be different where a respondent’s version consists of bald denials, raises fictitious disputes of fact, or which contains allegations which are un-creditworthy or so far-fetched and clearly untenable that the court would be justified

in dismissing them merely on the papers[9].

[15] Useful guidance about the manner in which the Plascon-Evans rule finds application in matters where an application for a forfeiture order gives rise to the participation of a respondent who claims an exclusionary order in terms of section 52 of POCA is provided by National Director of Public Prosecutions v Van der Merwe and Another[10] where Binns-Ward J, writing on behalf of the full court, stated the following (footnotes omitted):

“In matters in which the material evidence is on paper, the discreet nature of each of the stages, as aforementioned, has implications in respect of the application of the Plascon-Evans rule. The NDPP is the applicant in the s 48(1) application for relief in terms of s 50(1) in the first stage of the proceedings, and the affected respondent in the s 48(1) application is the applicant in terms of s 48(4)(b) for relief in terms of s 52(1). The position is quite distinguishable from a matter in which a defence properly so called, in respect of which the respondent bears the onus, such as extinctive prescription, or justification - as in the example of Adbro Investment Co Ltd v Minister of the Interior 1956 (3) SA 345 (A) at 349, used by Rabie ACJ in Ngqumba en ‘n Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 262B-D – is raised in motion proceedings. That, no doubt, explains Nkabinde AJA’s finding in National Director of Public Prosecutions v Parker 2006 (1) SACR 284 (SCA) (2006 (3) SA 198; [2006] 1 All SA 317) para 22, that the property owner’s protestations of ‘lack of knowledge’ in affidavits considered by the court in the first stage of the forfeiture application proceedings had ‘no bearing’ in the first-stage enquiry and ‘insofar as they relate[d] to the first stage inquiry, d[id] not, in any event, establish any material dispute of fact’. The Plascon-Evans rule thus falls to be applied with due regard to the fact that, in the second stage in the proceedings, the court is considering a second application by a different applicant. That both applications arise within the ambit of the single proceedings contemplated by s 48(3) of the Act, does not derogate from this conclusion; the position is closely analogous to that which obtains when an application and a counter-application in terms of rule 6 of the Uniform Rules are heard at a single sitting and are determined pari passu.”

[16] In assessing the facts set out in the affidavits to see whether the applicant has succeeded in establishing on a balance of probabilities that the property qualifies as an “instrumentality of an offence”[11] the decision of the Supreme Court of Appeal in Cook Properties[12] is instructive. The court held that for property to qualify as an “instrumentality of an offence” there must be a reasonably direct link between it and the crime committed and that the “employment of the property must be functional to the

commission of the crime”; in other words the property “must play a reasonably direct role in the commission of the offence” and in “a real or substantial sense the property must facilitate or make possible the commission of the offence”.

[17] In considering whether the applicant has discharged the onus of demonstrating that a forfeiture order in the matter would not constitute an arbitrary deprivation of the property but, in the

context of realising the objects of POCA, would be a remedy proportionate to the ends sought to be advanced by its grant, useful

guidance is to be found in a number of decisions. In National Director of Public Prosecutions v Cole and Others[13] Willis J stated (footnotes omitted):

“The Constitutional Court held in NDPP v Mohamed [2002] ZACC 9; 2002 (4) SA 843 (CC) and the SCA affirmed in Cook’s case[14] that “the primary objective of provisions of this sort is to remove the incentive for crime, not to punish criminals”. It seems, therefore, that any proportionality analysis would have to weigh the impact of the forfeiture on the respondent, not only against the severity of his crime but also against the public interest in the prevention of crime. The public interest is

considered to be a legitimate objective that forfeiture is designed to serve.”

And thereafter:

“It seems clear that proportionality in cases such as this cannot be measured with fine legal callipers. Nevertheless, using the imagery of Mr Trengove, I am satisfied that forfeiture in this case will not result in “a sledgehammer being used to swat a gnat.” Moreover, judicial discomfort with a consequence is insufficient to render it disproportional to the extent that the relief sought may be refused. Undoubtedly, a forfeiture order will have tragic consequences for the first and second respondents: they will lose their home. In view of the first respondent’s state of health, this will be particularly sad. In this regard, two points need to be made. The first is that forfeiture orders will almost always visit real hardship upon those against whom they are made: this is among the very purposes for which they were devised. The second is that the visiting of hardship upon a person is not in itself

unconstitutional.”

Two years later, in Prophet v National Director of Public Prosecutions[15] the Supreme Court of Appeal cited National Director of Public Prosecutions v Cole and Others[16] on the point with approval.

In National Director of Public Prosecutions v Van der Merwe and Another[17] the court expressed the following principles (footnotes omitted):

“The wide discretionary nature of the High Court’s power in treating with a forfeiture application in terms of the Act is manifest in the fact that a decision to grant, or refuse to make, an order is made upon a weighing-up of any number of relevant disparate and incommensurable considerations – arising from the peculiar facts of a given case – to determine whether the means of forfeiture is a rationally and proportionately appropriate manner of achieving the ends of the Act. Thus, even in a matter in which an affected party does not seek an exclusion order in terms of s 52, the effect of any forfeiture on the respondents is a matter that will generally be taken into account as part of the proportionality enquiry. The very availability of the remedy of an application for an exclusion order is also a factor that bears relevance in any proportionality enquiry.

The consideration of the effect of a forfeiture on a respondent – as part of the proportionality enquiry in the first stage of the proceedings – bears a quite different character from that which arises in the context of ‘the innocent owner defence’. The innocence or guilt or culpability of the respondent plays no role in the consideration in the proportionality enquiry.”

“There is no warrant in the proportionality enquiry for the personal circumstances of the affected property owner, assessed by themselves,

to trump the realisation of the objects of the legislation. The effect of the forfeiture on the owner, while an important consideration, is but one of the relevant factors to be taken into account in the proportionality enquiry; it falls to be weighed in the balance with all the other factors that are relevant on the evidence in the case. The realisation of the objects of the statute therefore

also demands proper consideration in the proportionality enquiry.

In Prophet (CC)[18], the court described as ‘salutary’ an approach to the proportionality enquiry, similar to that enunciated in S v Manamela and Another (Director-General of Justice Intervening) [2000] ZACC 5; 2000 (1) SACR 414 (CC) (2000 (3) SA 1; 2000 (5) BCLR 491), para 32, in respect of the determination, under s 36 of the Constitution, of the reasonableness and justifiability on limitations on rights in the Bill of Rights. In that regard the majority of the court held:

‘In essence, the court must engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list. As a general rule, the more serious the impact of the measure on the right, the more persuasive or compelling the justification must be.’

The corollary is that, in a context in which the justification for forfeiture is compelling, the owner who is not able to establish the innocent owner defences is required to suffer the impact, serious though it might be.”

[18] The following facts emerge from various sworn statements[19] included in the application papers:

On 22 March 2017 two foreign nationals of Ugandan origin, Jonathan Sekyanzi (Sekyanzi) and Senyomo Juma (Juma), both welders by trade who are employed and resident in Butterworth, were travelling in a black Honda motor vehicle between Dutywa and Willowvale with the intention of visiting Sekyanzi’s brother. As they were nearing the Thaleni junction, at around 13h00, a black Golf 4 motor vehicle appeared and made straight for the Honda. It stopped, causing the Honda to stop. Two men bearing firearms alighted from the Golf. They forced Sekyanzi and Juma at gunpoint to get out of the Honda and into its boot. The two armed men then drove both motor vehicles to a spot near the Thaleni road bridge, where the vehicles were brought to a standstill and the armed men again alighted.

The armed men opened the boot of the Honda and took Sekyanzi and Juma out. They stripped them of their clothing and used cable ties to cuff their hands tightly. They took them to the forest near the bridge. There they assaulted them by kicking them and hitting them with their fists and firearms. They demanded money from Sekyanzi and Juma. One of the armed men fired a shot with his firearm very close to Juma’s ear, causing Juma to lose the ability to hear in that ear. The armed men stole the victims’ wallets, removing cash and bank cards from them. They demanded details of the personal identification numbers applicable to their victims’ bank accounts. They also stole the victims’ cellular telephones and made telephonic contact with a friend of the victims, whose details were given to them by the two, demanding that he make deposits of money into their bank accounts. The attempt to obtain money was unsuccessful and the armed men forced Sekyanzi and Juma back into the boot of the Honda and drove both vehicles towards Willowvale.

A traffic control officer, Aphelele Apleni (Apleni), who was doing routine vehicle licence checks near Boxer Superstore in Willowvale on the same day, saw a black Honda motor vehicle approaching at a high speed from the direction of Dutywa. When he tried to stop it, the Honda evaded him by overtaking a vehicle which was in front of it and whose driver was attempting to gain access to the yard of Boxer Superstore, driving passed at a high speed. As it did so, Apleni heard the sound of a person banging on the lid of the boot and screaming loudly from inside the boot, calling for help. Apleni requested a colleague who was on duty with him to phone the police using his cellular telephone. Apleni gave chase to the Honda on foot. He came upon it abandoned near the store known as Msengane Build-Rite. Sekyanzi and Juma had somehow managed to get out of the boot and had been helped by nearby shop owners. At that point, members of the South African Police Services arrived. Apleni accompanied Sekyanzi and Juma to the police station. From there he accompanied them, with the police, to Komkhulu Location in Ntlabane Administrative Area, where they pointed out the black Golf 4 which had been used during the robbery earlier that day. Its registration number was CF 154 235.

On the following day, 23 March 2017, members of the South African Police Services at Willowvale went again to Komkhulu Location, to the premises where the black Golf 4 had been seen. The premises are occupied by Nombulelo Dlendle (Dlendle), who is a sister of the respondent’s father. She was interviewed by them and she told them that the respondent had arrived at her premises at approximately 15h00 on the previous day in his motor vehicle, which was the black Golf 4 still parked outside her premises. He was followed by a second motor vehicle which also stopped. She said that he told her that he was leaving his motor vehicle there, outside her yard. She did not ask him why, because she “knew him”. He locked his motor vehicle and climbed into the second motor vehicle which then drove away. The police then recovered the respondent’s motor vehicle and towed it to the Willowvale police station. Its details were entered into the SAP13 register, which is used to record the details of items recovered

during criminal investigations.

On 23 March 2017, at approximately 13h00, Warrant Officer Sandulela Davies Ngubombi (Ngubombi), a member of the South African Police Services stationed at Willowvale Police Station, arrested the respondent and detained him in custody. According to the statement of Sergeant Zola Majebe (Majebe), also a member of the South African Police Services stationed at Willowvale, on that day the respondent had arrived at the police station and had claimed that he had been robbed of his motor vehicle. The respondent had the key to his motor vehicle in his possession. Ngubombi solicited the help of Majebe to take the respondent from the cells in order to search his motor vehicle. It was opened with the respondent’s key and in his presence. Therein were found eight cellular telephones and a tablet. The respondent identified one cellular telephone as belonging to him, together with the tablet. These were registered in the SAP22 register, which contains details of property belonging to persons taken into police custody. The details of the other seven cellular telephones were entered into the SAP13 register.

On 27 March 2017, Sekyanzi and Juma identified the seven cellular telephones which had been taken out of the respondent’s motor vehicle as being items belonging to them.

[19] In his first answering affidavit the respondent admits that he is the owner of the black Golf 4 motor vehicle with registration number CF […] (the property). He alleges therein that the value of the property is R65 000,00, but does not attach any proof of the accurateness of this assertion.[20] The respondent does not dispute that the property was used as an instrument to commit an offence, but disputes that he was in any way involved therewith. He states that he lent the property to a friend, Loyiso Mapekula (Mapekula), who is now deceased. A copy of a death certificate is attached to the affidavit in support of the second part of the allegation. The respondent states that he told this to the investigating officer. Accordingly, he states that apart from the allegations made by members of the South African Police Services he has no knowledge of the property being used to commit the offences of robbery and kidnapping. He admits that he was charged with the offences but states that the charges were withdrawn on 21 June 2018. In this regard, the respondent poses the rhetorical question “I can only ask why?”. However, he asserts that the withdrawal of the charges against him render meaningless the allegations made in the founding affidavit and its annexures which support a conclusion that the property was used as an instrumentality of an offence. He concludes by seeking the return of the property and the dismissal of the application for a forfeiture order with costs.

[20] In the supplementary answering affidavit the respondent indicates that in the event of a forfeiture order being granted he seeks an order excluding therefrom his interest in the property. He states that the basis of this claim lies in the basis for his opposition to the grant of a forfeiture order as it appears in his first answering affidavit. To this he adds that even if the property was used as an instrumentality to commit an offence, at no stage did he get the impression that this was so – even when the property was returned to him. In support of his allegation that on the day in question he had lent the property to a friend he attaches an affidavit deposed to by his father in which it is alleged that the respondent lent the property to his friend “for some few hours”. Accordingly, the respondent claims to be an “innocent owner”. He admits that he parked the property outside the yard around Dlendle’s home in Komkhulu Location and states that this was because he suspected that it was not mechanically sound, although later it transpired that his suspicions in this regard were unfounded. He admits that the property was searched but denies that he gave permission for this to occur. He admits that the tablet found in the property upon its search was booked into the SAP22 register and that he laid claim to it as the owner. He also admits that he identified his cellular telephone to the police. He states that he had gone to the police station “merely to enquire” about the property and to “claim its return” because he had been informed that it was there. He states that he never went to the police station to report anything. In corroboration of this allegation he attaches a confirmatory affidavit of one Mhasa, who therein claims to have accompanied the respondent to the police station and to corroborate what the respondent says occurred there.

[21] It is significant that the answering affidavits deposed to by the respondent are replete with argumentative allegations which are intended to illustrate improbabilities emerging from the allegations in the founding affidavits. Indeed, these outnumber the factual allegations made by the respondent. Both their number and the inappropriateness of their inclusion in the answering affidavits militate against their inclusion in this judgment. It is trite[21] that motion proceedings are not designed to determine disputes of fact upon the basis of probabilities. What is central to their

character is that the evidence is placed before the court in the form of factual allegations made under oath in affidavit form which cannot be evaluated in any manner other than in accordance with the Plascon-Evans rule unless the matter is referred for the hearing of oral evidence. The affidavits are not vehicles within which to communicate submissions on the improbability that factual averments contained in the affidavits deposed to by the opposing party are correct.

[22] Upon an analysis of the factual averments set out in the affidavits filed of record the court is satisfied that the applicant has discharged the onus of establishing that the property was used as an instrumentality of the offences of kidnapping and robbery. There are a significant number of detailed allegations made in the founding affidavit and its annexures which cannot be, and are not, denied in the answering affidavits and which establish unequivocally that the use of the property constituted a necessary and integral part of the commission of the offences of kidnapping and robbery on 22 March 2017. It was used to transport the perpetrators to the place where the Honda motor vehicle was intercepted. It was used to transport the occupants of the Honda motor vehicle against their will and to a place where they were robbed. At this stage of the proceedings, the respondent’s claim that he had no knowledge of the use of the property in the manner described in the applicant’s affidavits is irrelevant. To the extent that it falls to be considered as an allegation in the answering affidavits, for the purpose of the application of the Plascon-Evans rule, it is not an allegation which raises a material dispute of fact.

[23] The court is also satisfied that the applicant has discharged the onus of proof in the proportionality enquiry. The offences in which the use of the property formed an essential element are extremely serious. They are offences which appear in Schedule 1 of the Criminal Procedure Act[22] and accordingly have the potential to attract severe sentences of direct imprisonment in the event of a conviction. Unfortunately, they are prevalent in the Republic of South Africa and its society is desperate to see a reduction in their occurrence. The incident which gave rise to this application is one which demonstrates the employment of a high level of violence against foreign nationals who were gainfully employed in the region and were innocently driving along a public road in broad daylight with the innocent purpose of accomplishing a family visit. They were kidnapped, severely assaulted and deprived of their property. They were subjected to the humiliation of being stripped naked and transported in the boot of a motor vehicle into the middle of a town, where they made their escape. Such an incident is one which is met with absolute intolerance on the part of the vast majority of South African

citizens. Against this must be weighed the fact that the property is the private property of the respondent and that it has a commercial

value which is not inconsiderable but which, in the nature of it being a motor vehicle , is a commercial value which reduces annually.

Nothing is set out in the affidavits to suggest that the property was previously used by the respondent in any manner which may have been regarded as being central to his ability to earn an income. It must be accepted on the facts set out in the affidavits that the respondent has been able to take up both residence and gainful employment in the Western Cape without in any manner being hindered by the deprivation of the property and the issue of the preservation order. Upon a consideration of all the relevant factors the court is satisfied that the forfeiture of the property would not amount to an arbitrary deprivation of property but, in the context of realising the objects of POCA[23] is a remedy proportionate to the ends sought to be achieved by its grant.

[24] Inasmuch as the outcome of the first stage of the inquiry in these proceedings has been a finding that the applicant is entitled to a forfeiture order in respect of the property, it is necessary to give consideration to the second stage of the inquiry, namely the respondent’s application for an order excluding his interest in the property from the operation of the forfeiture order. In this regard, the court is of the view that the respondent has failed to discharge the onus of establishing a factual basis which brings him within the ambit of section 52 of POCA. In this application, the respondent is the applicant and, unlike in the first stage of the inquiry, the Plascon-Evans rule does not operate in favour of the respondent. There are a number of examples of a lamentable lack of detail in the respondent’s

affidavits. He doesn’t give any details of his movements on 22 March 2017. He doesn’t give any details of the background to the friendship he claims to have had with Mapekula, or the circumstances surrounding the request made to borrow the property and the reason why the respondent acceded thereto. He doesn’t give any details about how he came to hear about the robbery. He doesn’t give any details about why he suspected that there were mechanical problems with the property and why he elected to leave it outside Dlendle’s home in Komkhulu Location rather than at his own home or, indeed, why he didn’t take it immediately to a garage for a mechanical inspection. He doesn’t give any details about how he came to ascertain that his suspicion that there were mechanical problems with the property was unfounded. Given the seriousness of the risk that a forfeiture order might be granted on the allegations made by the applicant in this matter, one would have expected the respondent at the very least to have given some substance to the bald exculpatory allegations he has made. This is particularly so because the respondent admits that his cellular telephone and tablet were found in the property when it was searched. How does this tie up with the respondent’s version that he had lent the property to Mapekula the previous day? The irresistible inference to be drawn from the absence of detail in relation to crucial elements of the respondent’s version is that it is characterised by afterthoughts which lack substance because they are untrue.

[25] Revisiting the allegations made by the applicant, which is to be regarded as the respondent in the second stage of the inquiry, reveals that a significant number of strong factual allegations are made by the applicant which combine to create material disputes of fact to meet the respondent’s allegation that he is “an innocent owner”. There is no mention at all therein about the respondent’s claim that upon reaching the police station he immediately told the police that he had lent the property to Mapekula on the previous day. The affidavit deposed to by Majebe, which forms part of the applicant’s papers, records that the respondent arrived at the police station and claimed that he “was robbed”

of the property. There is also no mention of any reason being given by the respondent to the police to explain why the property was left outside Dlendle’s home, where they had recovered it. In particular, Dlendle’s affidavit, which is also part of the applicant’s papers, makes no reference to any reason being given to her by the respondent for his actions in leaving the property outside her home. One would have expected that if the reason was a suspicion of mechanical problems, this would have been expressed spontaneously in the moment and recalled by Dlendle. On the facts, no reason was given to Dlendle. This is consistent with the respondent wishing not to disclose the activities of his day and wishing to place the property temporarily away from his own home. Upon an application of the Plascon-Evans rule, these disputes of fact are to be resolved in favour of the applicant.

[26] As the claim that he is “an innocent owner” is the only basis upon which the respondent approaches the court in terms of the provisions of section 52 of POCA, it follows that the court cannot exercise its discretion in favour of the respondent and the respondent cannot succeed in obtaining the exclusion of his interest in the property from the operation of the forfeiture order.

[27] On the facts of this matter, and within the context of the objects of POCA, the justification for forfeiture of the property to the State is compelling. The respondent, as owner, not being able to establish the “innocent owner” defence, must suffer the impact of a forfeiture order.

[28] The applicant seeks no costs order against the respondent. Ordinarily, costs follow the result unless some compelling factor emerges in an application to justify a departure from this usual principle. No such factor emerges in this matter. It would be appropriate for the respondent to be ordered to pay the costs consequent upon the dismissal of his application for an order excluding his interest in the property from the operation of the forfeiture order. The postponement of the matter on 5 March 2020 was occasioned by the respondent finding himself obliged to appear in person in pursuit of his opposition to the issue of a forfeiture order and an exclusionary order in his favour and being unprepared therefor. In the circumstances it is appropriate to direct that the costs payable by the respondent should include the reserved costs of 5 March 2020.

[29] The following order will issue:

“1. The Golf 4 motor vehicle with registration number CF […] (the property) is hereby declared forfeited to the State in terms of section 50 of the Prevention of Organised Crime Act 121 of 1998 (POCA).

2. Sakhumzi Nonkasa (Nonkasa) who was appointed to take control of the property in terms of the preservation order shall continue to act as curator until the matter is finalised.

3. Nonkasa shall sell the property and pay the proceeds of sale into the banking account of the Criminal Assets Recovery Account held at the Reserve Bank, account number 803[…].

4. The registrar of this Honourable Court is hereby directed to publish as soon as is practicable a notice of this order in the Government Gazette.

5. The respondent’s application in terms of section 52 of POCA is dismissed with costs, such costs to include the wasted costs reserved on 5 March 2020.”

___________________

R W N BROOKS

JUDGE OF THE HIGH COURT

Appearances Applicant:

Mr B Jakavula

Office of the State Attorney

94 Sissons Street

MTHATHA

Respondent: In person

Date heard: 28

May 2020

Date delivered: 9

June 2020

[1] The Constitution of the Republic of South Africa 1996.

[2] Act 32 of 1998.

[3] Act 121 of 1998.

[4] National Director of Public Prosecutions v Van der Merwe and Another 2011(2) SACR 188 (WCC) at paras [5] and [15].

[5] In National Director of Public Prosecutions v R O 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) SACR 208 (SCA) the Court identified that the inter-related objects of Chapter 6 of POCA include (a) removing incentives for crime; (b) deterring persons from using or allowing property to be used in crime; (c) eliminating or incapacitating some of the means by which crime is committed and (d) advancing the ends of justice by depriving those involved in crime of property concerned therewith.

[6] National Director of Public Prosecutions v R O 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) SACR 208 (SCA) at para [24]; National Director of Public Prosecutions v Van der Merwe and Another 2011 (2) SACR 188 (WCC) at para [17].

[7] National Director of Public Prosecutions v Van der Merwe and Another 2011 (2) SACR 188 (WCC) at para [16].

[8] Plascon-Evans Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 635.

[9] National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at para [26].

[10] (Supra) fn 4 at para [18].

[11] Section 50(1)(a) of POCA provides for the forfeiture of an instrumentality of an offence referred to in Schedule 1. The definition of ‘instrumentality of an offence’ set out in section 1 of POCA states that the term “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”.

[12] (Supra) fn 5 at para [31].

[13] [2004] 3 All SA 745 (W) at paras [13] and [15].

[14] (Supra) fn 5.

[15] [2006] ZACC 17; [2006] 1 All SA 212 (SCA) at para [30].

[16] (Supra) fn 13.

[17] (Supra) fn 4 at paras [12], [13], [41] and [42].

[18] Prophet v National Director of Public Prosecutions 2006 (2) SACR 525 (CC) (2007 (6) SA 169; 2007 (2) BCLR 140).

[19] The statements were taken during the investigation by members of the South African Police Services of the complaints laid by the two men who were robbed by armed men on 22 March 2017. In the answering affidavits the respondent alleges that some of the statements were not commissioned by a commissioner of oaths and accordingly that their content should be ignored. When the application for a preservation order served before this court, and indeed when the application for a preservation order was placed before this court, all the statements relied upon as annexures to the applicant’s founding affidavit had been signed before a commissioner of oaths. Accordingly, there is no merit in the complaints raised by the respondent in this regard in his answering affidavits. The possibility may exist that amongst the copy of the application papers left with the applicant upon service of the preservation

order by the sheriff were copies of annexures which did not contain the signature of a commissioner of oaths.

[20] The first answering affidavit is undated, but the allegation is repeated in the supplementary answering affidavit which was deposed to by the respondent on 11 December 2018. Accordingly, the unconfirmed assertion of the value must be accepted as pertaining to that date.

[21] National Director of Public Prosecutions v Zuma (supra) fn 9 at para [26].

[22] Act 51 of 1977.

[23] (Supra) fn 5.