National Director of Public Prosecutions v Nonxuba (299/2010) [2010] ZAECGHC 64 (12 August 2010)

Not Reportable

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

Case No: 299/2010

Date Heard: 13/05/2010

Date Delivered: 12/08/2010

In the matter between

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant

and

BABINI BENSON NONXUBA Respondent

JUDGMENT

REVELAS J

[1] On 12 February 2010, a provisional restraint order was obtained from Plasket J by the National Director of Public Prosecutions (the applicant) in terms of Section 26 of the Prevention of Organized Crime Act, No 121 of 1998 (“the Act”), restraining the defendant from dealing with certain property, an Audi Sedan motor-vehicle and twelve flat deck trailers, as well as property not listed, but which constituted realisable property as defined in Sections 12 and 14. The defendant was also ordered to surrender and disclose such property to the curator bonis to be appointed in this matter. The provisional restraint order was also coupled with the usual rule nisi calling upon the defendant to show cause, why the aforesaid order should not be made final.

[2] The return day of the rule nisi was extended and came before me in motion court proceedings. The defendant opposed the confirmation of the rule and sought the setting aside of the provisional restraint order. According to the applicant, its primary objective with the order

sought, was to secure the property in question in order to satisfy the confiscation order to be made in due course in terms of Section 18 of the Act, if were found that the defendant had derived a benefit from the criminal offence or any criminal activity relating thereto.

[3] In support of the application for a preservation order, a Mr Mdutyanan, one of the applicant’s senior special investigators of the Asset Forfeiture Unit (“the Unit”) in East London deposed to an affidavit. The following relevant facts appear therein:

[4] The matter in question was referred to the Unit by the Commercial Crimes Unit in East London and related to several allegations of fraud and theft. The defendant has been charged with several charges of theft and fraud for a total amount of R107 000.00 in the East London Magistrate’s Court.

[5] The applicants case against the defendant is that he and an accomplice cloned a debit card of a Mr Kovu at a Nedbank automatic teller machine (ATM) in Oxford Street, East London, and then depleted this account by purchasing goods and making withdrawals, totalling an amount of R107 000.00. An affidavit by Mr Kovu setting out the details of how he became the victim of a scam, was part of the papers.

[6] The identity of the defendant as being one of the perpetrator’s

was established when the defendant and his accomplice were seen on video footage obtained from Nedbank, when a withdrawal was made and from a store where the cloned card was used to purchase a music system. Only the defendant has been arrested. Further investigation led to a suspicion that the defendant was part of a syndicate specialising in cloning cards and that there might be other complainants.

[7] The trailers referred to above, in the first paragraph of the judgment are valued at R400 000.00 and were found in a warehouse in Butterworth. It is common cause that the defendant were in control of them. Because the defendant was unemployed at the time of his arrest, the applicant has a suspicion that the defendant bought the trailers with the proceeds of crime. The applicant is confident that a trial court will in all possibility make a confiscation order for at least R107 000.00.

[8] The Audi sedan vehicle referred to above is registered in the defendants’ name. The latter has also started a trailer business. Attached to the application is a copy of a receipt for the purchase of the thirteen trailers in the amount of R395 061.30.

[9] The defendant explained how he could afford the trailers without an income. He and his brother inherited a sum of R410 841.25 each, from their mother, a widowed nurse, when she died on 2 June 2009. These monies were employment benefits of his late mother. The defendant stated that the payment of his share was indeed paid by the Government Employees Pension Fund. In a letter addressed to the defendant (a copy of which was attached to the papers), the Fund confirmed that payment was due to the defendant in the amount of R410 841.25 and would be paid into his bank account at First national Bank. A copy of the defendant’s bank statement was to his affidavit and attached reflected the amount paid into his account from the Pension Fund. A copy of the defendant’s bank statement also shows that R400 000.00 was transferred out of his account, into the account of a Mr N Nonxuba. The defendant said this was his brother. No confirmatory affidavit by the defendant’s brother is attached to the affidavit. He subsequently bought the trailers in question by transferring the monies out of his brother’s banking account.

[10] There are, according to the applicant, six other criminal cases where the defendant allegedly followed the same modus operandi and he has been charged with fraud where he allegedly defrauded victims with cloned cards. Case Numbers for the matters were listed

by the applicant. The defendant has appeared in some of those cases already. Even though no clone card was found in his possession, the cloning was done by “skimming” the victim’s card with a cloning device, according to the applicant.

[11] The respondent also disputed that he cloned Mr Kovu’s card. The defendant’s bank account seems very active. Several cash deposits are reflected. For an unemployed man this seems somewhat suspicious. The defendant’s explanation of the video footage is unconvincing.

[12] In NDPP v Rautenbach 2005 (4) SA 603 (SCA) at paragraph [51], it was held that question is not whether the offences were indeed committed “nor even whether they were probably committed, but only whether there are reasonable grounds for believing, that a Court might find that they were”.

[13] Before a confiscation order can be made the Court must first determine whether the defendant arrived any benefit from his crime. This enquiry is not limited to the benefits derived from the offences as such, but also extends to the benefits he derived from any other criminal activity which are held to be suffiently related to those offences.

[14] In my view, it has been established on reasonable grounds to believe that the defendant, even if he did inherit some money, at least benefitted from the proceeds of “skimming” Mr Kovu’s card in the amount of R107 000.00. His appearances on video footage are in each instance linked with a transaction which left Mr Kovu poorer. That is benefitting from the proceeds of crime. All the elements required for an order such as this are satisfied. The defendant’s bank account suggests there may be more criminal offences which could be shown to be attributable to the defendant.

[15] The evidence presented in this application demonstrates that the defendant has indeed been charged with the offences under discussion

and that there are reasonable grounds to believe that a confiscation order will be made by a trial court.

[16] Therefore I make the following order:

The restraint order as it appears in the Draft Order is confirmed.

_______________

E REVELAS

Judge of the High Court

Counsel for the Applicant: HM Ackermann

Instructed by: NN Dullabh & CO

Counsel for the Defendant: MM Malla

Instructed by: GM Yeko Attorneys

Date Heard: 13 May 2010

Date Delivered: 12 August 2010