National Director of Public Prosecutions v Nakedi (5047/2019) [2021] ZAFSHC 216 (25 August 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Application number: 5047/2019

In the application between:

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS Applicant

and

ABIGAIL CLAIRE DISEBO NAKEDI Respondent

CORAM: VANZYL, J

HEARD ON: 25 FEBRUARY 2021

DELIVERED ON: 25 AUGUST 2021

[1] This is an application for forfeiture of property in terms of Chapter 6 of the Prevention of Organised Crime, Act 121 of 1998 ("POCA"), which Chapter deals with the civil recovery of property.

[2] The property involved is a BMW X1 motor vehicle with registration number DZT 087 FS ("the BMW") and R30 000.00 in cash ("the cash"), jointly referred to as "the property".

[3] A preservation order with regard to the property was obtained by the applicant in terms of section 38 of POCA on 7 November 2019.

[4] The respondent is opposing the forfeiture application, but only in respect of the BMW.

The applicant's case:

[5] On 31 October 2018 Capt Putter received information about corruption at the Bethlehem Magistrate's Court. Capt Putter subsequently applied for authorisation in terms of section 252A of the Criminal Procedure Act, 51 of 1977, which was later adduced to writing and signed on 7 November 2018.

[6] Capt Putter met with Const Mokoena on 7 November 2018 and requested him to act as a police agent. He requested Const Mokoena to call a specific cellular number. He was to pretend to be an official in the employment of the Department of Justice. Const Mokoena phoned the relevant number and spoke to Lerato, whose real name became known as Nakedi.

During the conversation Nakedi confirmed that she was in possession of a J1-form (which is a Warrant of Liberation) and that she is looking for somebody at the Bethlehem Magistrate's Court to assist her to fax the J1-form to Correctional Services and to confirm with them that the document was legitimate. Nakedi further told Const Mokoena that he can name any price and when Const Mokoena said that he is uncertain how much she is willing to pay, Nakedi offered to pay R30 000.00 in cash. Const Mokoena accepted the offer and Nakedi requested that they should meet on her arrival in Bethlehem.

[7] Const Mokoena, on the request of Nakedi, called her via WhatsApp as she wanted to know how soon Const Mokoena would be able to assist her if she would come with the J1-form on Thursday, 8 November 2018. Const Mokoena indicated that he would help her immediately upon receipt of the money and the J1-form. On 8 November 2018 Nakedi wanted to meet with Const Mokoena at Ocean Basket for him to explain to her how the J1 works in court, but Const Mokoena opted to explain it via their cell phone call.

[8] On 9 November 2018 Const Mokoena first received a message from Nakedi and thereafter a cell phone call to meet her at Mugg & Bean, Bethelehem, but Const Mokoena requested that they meet at his office and he gave her the directions. On her arrival at the Bethlehem Magistrate's Court, she gave Const Mokoena the J1-form which was to be faxed to Goedemoed Prison in order for a certain Qcolisane Kambule ("Kambule") to be released. Nakedi gave Const Mokoena the cash, which was counted in each other's presence. Nakedi also wanted proof that the J1-form had been faxed and Const Mokoena told her that he would print the proof of fax.

[9] Sgt Fakude and Const Radebe then entered the office where Const Mokoena and Nakedi were and Nakedi was arrested.

[10] Const Mokoena made a report as to what transpired and handed over the cash and the J1-form to Sgt Fakude. Const Radebe found a further amount of RS 500.00 in the possession of Nakedi.

[11] Sgt Fakude also searched the BMW which Nakedi arrived in and found a further twelve documents (J1-forms), a date stamp, three cellular phones, five memory sticks and a laptop.

[12] Nakedi was then charged with corruption.

[13] Further investigations by Capt Putter revealed the following:

1. Nakedi used Tebogo Manele's ("Manele") bank account to receive an amount of R40 000.00, which was withdrawn by Manele on 8 November 2018 and handed over by him to Nakedi at McDonalds, Bethlehem, in the BMW that Nakedi arrived in. Nakedi told Manele that the money is for a tombstone and he further tried to assist her to hire a vehicle for her family to go to Queenstown.

2. Kambule, whose name was entered on the relevant J1, was sentenced together with one Ramoloi on 12 May 2014 to 12 years' imprisonment for armed robbery and that they were not eligible for release.

3. Ntseluseng Mahlatsi, who is employed at the Bethlehem Magistrate's Court, found that only one J1-form in the name of one Kunene had been entered into the relevant J1- register for the year 2018.

4. The Regional Court magistrate whose name and signature appear on the relevant J1-form stated that he was not in Bethlehem on 9 November 2018 when the J1-form had supposedly been signed and although the signature looked similar to his, the sequence of the date, month and year of the stamp which appears on the J1-form, is not the same as that of his date stamp.

[14] After Nakedi was arrested, Const Mokoena received a phone call from Kambule, who threatened him. On 19 November 2018, Ms Masoeu, who is the person who was first contacted by Nakedi for assistance with the J1-form and who also reported the matter to the SAPS, was threatened via her Facebook social network page by one Khauhlo Katleho Nakedi.

[15] The legal basis of applicant's case is set out in paragraph 28 of the founding affidavit as follows:

"28. I therefore submit that the applicant has proven on a balance of probabilities that the property is an instrumentality or proceeds of an act of corruption in that:

28.1 The BMW was deliberately chosen and used to facilitate a significant part of the corruption transaction as follows:

28.1.11 It was used to transport Nakedi to McDonalds where she met with Manele and where the physical handing­ over of the R40 000.00 took place;

28.1.2 It was further used by Nakedi to transport herself, the R40 000.00 and J1 to the Bethlehem Magistrate's Court where she met with Mokoena;

28.1.3 It would also have been used to meet with Mokoena at Ocean Basket and Mugg & Bean respectively; and

28.1.4 The BMW was also used to safely keep further 12 documents (J1-forms), a date stamp, three cellular phones, five memory sticks and laptop.

28.2 The use of the cash was integral in obtaining the service and/or assistance of an official of the Department of Justice;

28.3 The cash has been used to facilitate the act of corruption;

28.4 The cash also represents proceeds of an unlawful activity i.e. corruption in the hands of the members of SAPS; and

28.5 It is evident from the above facts that Nakedi's actions were premeditated in that she lied and misled Manele to use his bank account as a conduit to receive the R40 000.00 in what can only be seen as an act to try and hide its origin."

The respondent's case:

[16] On 8 November 2018 the respondent went to see her younger sister who resides in Bethlehem. She drove in the BMW from Bloemfontein to Bethlehem. Whilst visiting her sister, the respondent drafted and/or updated her curriculum vitae ("CV") on her laptop. Thereafter she downloaded the CV to a memory stick with the intention of printing it at a nearby internet shop.

[17] After having printed her CV, she made copies thereof and went to Bethlehem Magistrate's Court to have the said copies certified. She went to the office of the clerk of the court, Ms Masoeu, who is known to her. On her arrival she found Ms Masoeu in her office, but she told the respondent that she is busy. She further told the respondent that the respondent should leave her cell phone number and that she will call her when she is done with her work.

[18] The respondent subsequently received a call from a gentleman called Mokoena who informed her that Ms Masoeu requested that she should come to her office. The respondent told Mokoena that she will come the following day as she was busy having lunch at Ocean Basket.

[19] The following day, 9 November 2018, the respondent went to Ms Masoeu's office, where she found Ms Masoeu and an unknown gentleman. Ms Masoeu subsequently left the office and the respondent remained in the office with the said gentleman. She enquired from him whether he will be able to assist her with certifying the copies of her CV. He took the said copies and before he left the office, he placed his bag, which contained some books, behind the door and then left. After a while and whilst the respondent was still waiting in the office, he returned to the office, accompanied by another gentleman and a lady. The gentleman identified himself as Const Mokoena, the other gentleman identified himself as Sgt Fakude and the lady identified herself as Const Radebe. Const Mokoena went to behind the door where he left his bag and took out money from the bag, which he counted and said it amounts to R30 000.00.

[20] According to the respondent the said R30 000.00 was not found in her possession, but in the bag of Const Mokoena. She has no knowledge of the money and did not at any stage have had it in her possession. The only money found in her possession was R5 500.00. According to the respondent she subtracted this money from the tombstone money which she received from Mr Manele in Bloemfontein. She kept the money in her wallet and the wallet was in her handbag at all relevant times.

[21] The respondent was then notified by Sgt Fakude that she is under arrest. She was handcuffed and ordered to accompany them to her BMW, which was parked in the street, outside the court premises. On their way to the BMW, they were joined by other police officers who also accompanied them to the vehicle. There were approximately twelve police officers who surrounded and searched the BMW. The BMW was unlocked by a lady police officer who was in possession of the respondent's handbag and her car keys. At the time when they opened and searched the BMW, they ordered her to stand against the wall of the court building, with two police officers who guarded her. The respondent was not allowed to stand next to the BWM and/or to observe while the police officers were searching it. She was standing far from the BMW and she could not see what occurred during their search. According to the respondent the BMW was searched without a search warrant and she was not allowed to be part of the search and/or to witness the search process.

[22] According to the respondent she has no knowledge of the J1- forms which had allegedly been found in the BMW. The only items which were in the BMW at the time, were her work laptop and her three memory sticks.

[23] According to the respondent the BMW was not a crime scene, it was not used to facilitate a crime and it is not the proceeds of an unlawful activity. According to the respondent the crime scene was Ms Masoeu's office. In this regard the respondent alleges that Ms Masoeu and Const Mokoena are the ones who will be able to explain where the R30 000.00 came from, since she has no knowledge thereof.

[24] The respondent also denies any knowledge of the J1-forms and the date stamp, which were allegedly found in the BMW.

[25] The respondent is employed by the Free State Provincial Government as a Deputy Director. The BMW is the property of BMW Financial Services since she bought it on an instalment sale agreement, in terms of which she is still paying monthly instalments to BMW Financial Services. She was subsidised by the provincial government in the acquisition of the BMW and she is required to execute the functions of the Provincial Government, which inter alia, include travelling, using the BMW. The non-availability of the BMW hampers her in performing her duties in that she is unable to travel and execute her duties as per her employment contract.

[26] The BMW is furthermore kept in the sun at the SAP13 store and the continuous keeping of it in those adverse conditions will result in it being damaged with the consequent rapid depreciation in value thereof.

Legal principles:

[27] Section 50(1) of POCA determines as follows with regard to the making of a forfeiture order:

"50(1) The High Court shall, subject to section 52, make an order applied for under section 48(1) if the Court finds on a balance of probabilities that the property concerned -

(a) is an instrumentality of an offence referred to in Schedule 1;

(b) is the proceeds of unlawful activities; or

(c) is property associated with terrorist and related activities."

[28] In terms of section 50(4) of POCA the validity of an order under sub-section (1) "is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated."

[29] With regard to the BMW, it is the applicant's case that it has proven on a balance of probabilities that the BMW was an instrumentality of an act of corruption. In this regard I have already cited paragraph 28 of the applicant's founding affidavit.

[30] Section 1 of COPA defines "instrumentality of an offence" as "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"

[31] In NDPP v RO Cook Properties (Pty) Ltd; NDPP v 37 Gillespie Street Durban (Pty) Ltd; NDPP v Seevnarayan, 2004 (2) SACR 208 (SCA) the Supreme Court of Appeal found at para [21] that in giving meaning to "instrumentality of an offence", the question is "whether a functional relation between [the] property and crime has been established'. Furthermore, "the focus is not on the state of mind of the owner, but on the role the property plays in the commission of the crime". The phrase "instrumentality of an offence" must therefore, according to the Supreme Court of Appeal, be interpreted independently of the guilt or innocence of the property-owner. The Court consequently found as follows at para [31]:

[31] “... For now it is enough to say that the words 'concerned in the commission of an offence' must, in our view, be interpreted so that the link between the crime committed and the property is reasonably direct, and that the employment of the property must be functional to the commission of the crime. By this we mean that the property must play a reasonably direct role in the commission of the offence. In a real or substantial sense the property must facilitate or make possible the commission of the offence. As a term 'instrumentality' itself suggests (albeit that it is defined to extend beyond its ordinary meaning), the property must be instrumental in, and not merely incidental to, the commission of the offence. For otherwise there is no rational connection between the deprivation of property and the objective of the act: The deprivation will constitute merely an additional penalty in relation to the crime, but without the constitutional safeguards that are a prerequisite for the imposition of criminal penalties."

[32] In the aforesaid judgment the Court concluded as follows at para [32]:

"[32] It follows that we endorse broadly the conclusion in those cases, following the first-instance decision in National Director of Public Prosecutions v Carolus & Others, where a narrow rather than a wide interpretation of the definition of 'instrumentality' was held appropriate. Here, despite its different (and pre-constitutional) context, we find practical assistance in S v Bissessue, where the magistrate declared forfeit a motor vehicle and fishing rods used in fishing without a licence under an ordinance that, in addition to a criminal penalty, required the court to declare any article used 'in, for the purpose of, or in connection with the commission of the offence' forfeit. On appeal the forfeiture of the fishing rods was upheld, but that of the vehicle was set aside. The court held that 'to qualify for forfeiture the thing must play a part, in a reasonably direct sense, in those acts which constitute the actual commission of the offence in question'. The same, in our view, applies to 'instrumentality of an offence'. As suggested in National Director of Public Prosecutions v Prophet, the determining question is whether there is a sufficiently close link between the property and its criminal use, and whether the property has a close enough relationship to the actual commission of the offence to render it an instrumentality. Each case will of course have to be decided on its own facts."

See also Prophet v NDPP [2006] ZACC 17; 2006 (2) SACR 525 (CC) at para [56].

[33] In the judgment of National Director of Public Prosecutions v Patterson [2001] 4 All SA 525 (C) the forfeiture of immovable property was at stake. However, in my view the relevant principles are mutatis mutandi applicable in relation to the facts of the present matter. At 527 of the judgment the court referred to the following dicta:

"See also the remarks of Stegmann J in NDPP re Application for Forfeiture of Property i.t.o. sections 48 & 53 of Act 121 of 1998 unreported case number 2000/12886 (WLD), where the learned Judge made the following remarks in paragraph (12):

'The mere fact that a particular offence was committed on a particular property would not necessarily entail the consequence that the property was 'concerned in the commission' of the offence, or that the property had become an 'instrumentality of an offence'. It seems to me that evidence of some closer connection than mere presence on the property would ordinarily be required in order to establish that the property had been 'concerned in the commission' of the offence.'

In a footnote to this statement he added,

'A closer connection must be shown than mere presence. It must be established that the property was 'concerned' in the commission of the offence, and not merely that the offence was committed on the property."'

[34] The aforesaid approach by Stegmann, J was also cited with approval in Mohunram v National Director of Public Prosecutions (Law Review Project as Amicus Curiae) 2007 (2) SACR 145 (CC) at para [45].

[35] Before a court will find that property (including a motor vehicle) was an instrumentality, the following has to be established, as set out in National Director of Public Prosecutions v Geyser [2008] ZASCA 15; [2008] 2 All SA 616 (SCA) at 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 be directly causally connected with it so that it is integral to commission of the offence..."

[36] The words "concerned in the commission ... of an offence" consequently mean that:

"(a) The link between the crime committed and the property is reasonably direct.

(b) The employment of the property must be functional to the commission of the crime.

(c) The property must play a reasonably direct role in the commission of the offence. It must facilitate or make possible the commission of the offence in a real or substantial sense.

(d) The property must be instrumental in, not merely incidental to, the commission of the offence.

(e) There must be a rational connection between the deprivation of property and the objective of POCA.

(f) Deprivation should not merely be an additional penalty in relation to the crime (without the constitutional safeguards that are a prerequisite for the imposition of criminal penalties)."

See Organised Crime and Proceeds of Crime Law in South Africa, A Kruger, Second Edition, Chapter 6, at para 6.7.4.

[37] The applicant relied in its heads of argument on, inter alia, the judgment in National Director of Public Prosecutions v Salie 2015 (1) SACR 121 (WCC), referring to the fact that the respondent in that matter used a Rav 4 motor vehicle to transport prostitutes to clients. However, in my view the said judgment is not relevant to the present matter, since the forfeiture in that instance was ordered based on a finding that the said vehicle and other property constituted proceeds of unlawful activities and not on the basis of it having been an instrumentality of an offence. The applicant also relied on the judgment in National Director of Public Prosecutions v Braun 2009 (6) SA 501 (WCC), referring to the fact that the respondent in that matter drove around in his BMW X5 motor vehicle and approached children whom he solicited to perform sexual acts with him. However, it is evident from paragraph [18] of the judgment that although a preservation order in respect of the BMW X5 motor vehicle was granted, an application for leave to appeal to the Supreme Court of Appeal in this regard had been granted. I do not know what the outcome of that appeal was.

[38] In National Director of Public Prosecutions v Maisela (28844/09) [2009] ZAGPPHC 166 (17 December 2009) the respondent was arrested whilst driving to a "corrupt meeting" at which corrupt activities would be taking place. The NDPP alleged that his car was an instrumentality of the offence of corruption. The court found as follows at paras [24] to [29] of the judgment:

"[24] There is to my mind, no logical reason why the respondent would actually plan to use this particular vehicle in question as any vehicle would have sufficed for his intended purposes and the vehicle in question was at his disposal during the instances when he used the vehicle.

[25] The use of the vehicle in question, in my view, has no reasonably direct link to the alleged crime committed or the success of alleged unlawful activity of the respondent or in the facilitation of his alleged unlawful activities. If this vehicle was not available or at his disposal, the respondent could have borrowed another vehicle or used public transport and that would have no link on his alleged unlawful activities.

[26] There was nothing special about the vehicle in question in order to facilitate or make possible the commission of the offence. The vehicle was not specifically adapted or equipped to facilitate the alleged committal of the offence.

[27] It is so that the respondent was able to get to the various destinations at his convenience and without the inconvenience of using alternative forms of transport. It is my view that this is precisely what the vehicle was used for by the respondent - a convenient method of transport.

[28] I agree with the submission by the respondent's counsel that, should the vehicle be taken out of the process involved, a crime could still have been committed. In such instance another vehicle or public transport could have been used.

[29] I have considered the totality of the circumstances of this case and I find that the use of the vehicle in question was incidental to the commission of the alleged offence.

[30] I have not been convinced by the applicant that the vehicle was used as an instrumentality during the committal of a schedule 1 offence."

Application of the legal principles on the facts:

[39] It is common cause that the respondent bought the BMW with the financial assistance of BMW Financial Services by means of an Instalment Sale Agreement. From a perusal of the said Agreement it appears that the respondent concluded the Agreement way back in September 2011 already. It is consequently evident that the BMW was not acquired for the purpose of facilitating the transaction. This BMW has since 2011 been used by the respondent as her means of transport.

[40] Although, on the applicant's version, the respondent indeed used the BMW as transport for herself and the cash, and kept the J1-forms and other items in the boot thereof, the vehicle did not play a reasonably direct role in the commission of the offence. Although the use of the BMW was convenient, the alleged crime could still have been committed should the BMW be taken out of the process. The respondent could have borrowed a car or could have made use of public transport and merely have kept the items found in the vehicle in a bag on her person.

[41] In my view the BMW was not integral to the commission of the alleged offence. It was merely incidental to the commission of the alleged offence.

[42] Considering the aforesaid findings, it is unnecessary to consider the issue of proportionality.

[43] The application is not being opposed with regard to the cash. In my view the applicant has made out a proper case on a balance of probabilities for the requested forfeiture of the cash.

Costs:

[44] In so far as the costs of the forfeiture application is concerned, the respondent is substantively successful with her opposition to the application with regard to the BMW. The costs should consequently, in my view, follow the success of the opposition.

[45] On 28 January 2021 the application was postponed after I heard argument by both parties. The costs stood over for later adjudication. On the one hand the postponement was to grant the respondent an opportunity to file a duplicate affidavit in response to new evidence contained in the applicant's replying affidavit. The postponement was also to enable the applicant to serve a copy of the papers on BMW Financial Services. In my view the postponement was consequently part and parcel of the procedural process which was necessary at the time in order to get the application ripe for hearing. I therefore deem it appropriate that the wasted costs of 28 January 2021 be costs in the application.

[46] After having considered the arguments with regard to the wasted costs of 10 December 2021, I consider it reasonable that each party is to pay its own costs.

[47] With regard to the preservation application, I would have considered the applicant to pay the costs thereof had it not been that the respondent filed a reconsideration application in response thereto, which application the respondent subsequently abandoned. In my view it will not be fair to burden the applicant with the costs which the respondent incurred by having filed the reconsideration application. I therefore, in the exercise of my discretion, deem it appropriate that each party is ordered to pay its own costs of the preservation application, which includes the costs of the application for reconsideration.

Order:

[48] The following order is made:

1. An order is granted in terms of the provisions of the Prevention of Organised Crime Act, 121 of 1998 (POCA) declaring forfeit to the State, with immediate effect, R30 000.00 in cash (the cash), which is presently subject to a preservation of property order granted by this Court under the abovementioned case number on 7 November 2019.

2. The appointment of a curator bonis is hereby dispensed with. The property shall vest in the State, and the Station Commander of the Bethlehem South African Police Service or an officer of equal or higher rank or a person delegated by him/her is directed to deal with the cash as follows:

2.1 On the date on which this order takes effect, immediately after this order has been granted, assume control of the cash and take it into his/her custody.

2.2 Deposit and/or cause transfer of the R30 000.00 in cash into the Criminal Asset Recovery Account (CARA) established under section 63 of POCA, number 80303056, held at the South African Reserve Bank, Vermeulen Street, Pretoria.

3. The application to declare forfeit to the State the BMW motor vehicle, with registration number and letters DZT 087 Free State, engine number 8077J016 and chassis number WBAVL32050VP92951 {the BMW), which is currently subject to a preservation of property order granted by this Court under the abovementioned case number on 7 November 2019, is dismissed.

4. The last-mentioned preservation order with regard to the BMW, is set aside.

5. Each party is to pay its own costs of the preservation application.

6. Subject to paragraph 7, infra, the applicant is ordered to pay the costs of the forfeiture application, which costs include the reserved costs of 28 January 2021.

7. Each party is to pay its own costs with regard to the reserved costs of 10 December 2020.

C. VAN ZVL, J

On behalf of the applicant: Adv. E. B. Ontong

Instructed by: State Attorney

BLOEMFONTEIN

On behalf of the respondent: Adv. N. D. Khokho

Instructed by: Fixane Attorneys