National Director of Public Prosecutions v Plaatjies and Another (3203/2010) [2014] ZAECPEHC 80 (13 November 2014)

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, PORT ELIZABETH)

CASE NO:3203/2010

Date heard: 4/09/2014

Date delivered: 13/11/2014

In the matter between:

NATIONAL DIRECTOR OF PUBLIC

PROCECUTIONS

Applicant

and

HILTON PLAATJIES

1st Respondent

CAROL PLAATJIES 2nd Respondent

JUDGMENT

JACOBS AJ:

[1] This is an application for the forfeiture of property presently subject to a preservation order granted by this Court on 26 October 2010.

[2] Counsel filed comprehensive and helpful submissions in their Heads of Argument. It is common cause:

[2.1] Wait and Van Wyk of the Crime Prevention Unit (CPU) had information that the Respondents sold drugs including Crack Cocaine, Dagga, Tik and Mandrax (tablets) at house [.....] Avenue, Kensington, Port Elizabeth ([.....]) and house [.....] in the same street;

[2.2] this information was supported by the fact that more than one drug user had been arrested having bought drugs at the Respondents residence, [.....];

[2.3] on 16 March 2010 one Mellville Andrews was found in the garage at [.....], asleep. A Dagga pipe with Mandrax powder was found near him;

[2.4] First Respondent voluntarily provided Naicker with information that Second Respondent was selling drugs from house [.....] on 21 August 2010;

[2.5] On Monday 6 September 2010 Matheus Johannes Daniel Barnard (Barnard) was arrested at house [.....] after he bought half a Mandrax tablet there;

[2.6] Warrant Officer Kwinana visited [.....] on 16 July 2010. Second Respondent was at the house. Kwinana, Wait and van Wyk found males in the garage. One of the males, Shaunton Jacques Slater (Slater), had 30 pieces of Crack Cocaine;

[2.7] An informant bought loose Dagga and a “Boss” Mandrax tablet at [.....] after 23h00 on Monday 15 March 2010;

[2.8] The preservation order was sought as a result of 4 raids conducted on 16 March 2010, 7 April 2010, 20 May 2010 and 28 July 2010 respectively, by members of the South African Police Service at [.....].

Facts

[3] On 15 March 2010 Naicker applied for a search and seizure warrant at the Humewood police station after midnight. A search warrant was issued by Captain Gerhard Stander of the Humewood police station. Wait and Van Wyk executed the warrant at [.....]. This warrant as well as the warrant dated 20 May 2010 does not specify whether it should be executed during the daytime or night time and therefore

does not comply with the requirements of section 21(3)(a).[1] Naicker applied for the aforementioned warrant at about 01h32. The warrant ex facie authorised Van Wyk, Wait and Naicker to search for “articles” which they reasonably believed to be concerned in the commission of the offences of possession of drugs, possession of Dagga and possession of stolen property.

[4] The printed application for warrant form, refers to articles identified in Annexure “A”. There is no need for a

separate list of articles because the items are listed on the space provided for on the said form. The information at hand was that drugs were sold. The warrant ex facie meets the requirements for validity laid down by the Constitutional Court in Minister of Safety and Security v Van der Merwe and others.[2]

[5] Van Wyk and Wait both say they entered the house. Wait identified himself and showed both Respondents the warrant. First Respondent

gave his co-operation. Section 21(4) of the CPA requires “A police official executing a warrant under this section or section 25 shall, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant”[3]. First Respondent was therefore entitled to demand a copy of the warrant, but neglected to do so.

[6] Van Wyk and Wait say Dagga, Mandrax, Tik and Crack Cocaine were found next to the bed where first respondent was. Van Wyk asked first Respondent whose drugs they were to which he answered his. Van Wyk arrested him for illegal possession of drugs. Further search of the premises produced Crack Cocaine and Mandrax tablets in clear bags in a closet. First Respondent said they were his. More Mandrax tablets were found wrapped in foil, 39 plastic bank bags with Dagga and loose Dagga were found next to Second Respondent’s side of the bed. First Respondent states that none of the alleged illegal drugs or money found on the premises were counted or sealed in his presence. Second Respondent is silent on this aspect.

[7] The garage was also searched. The Mazda 3 was parked in the garage. A huge cardboard box with “Pharmacare Limited” appearing on it and with red and white tape displaying “Aspen” was found in the boot. The box contained sealed dark brown plastic bottles with “Stilpayne” stickers on. Wait opened one of the sealed bottles and found that it contained green tablets. Respondents were asked about the tablets and both denied knowing who they belonged to. Wait says “Stilpane” tablets are crushed and used with Mandrax to give a stronger “high”. The “Stilpane” tablets were manufactured by Aspen Pharmacare in Korsten and released to distributors in January 2010. There is no suggestion that Respondents were in lawful possession of these tablets.

[8] Forensic tests confirmed that the “Stilpane” tablets contained Meprobamate, listed in Schedules 1 and 5 of the Medicine

Act[4] and that the drugs were indeed Cocaine, Dagga, Mandrax and Tik.

[9] The Second Respondent was employed as a supervisor, checkout by Pick ‘n Pay, Eastern Cape and works at the Walmer Park Shopping Centre branch. Copies of her Nedbank account reflected her highest monthly salary from 25 January 2010 to 25 June 2010 to be R5 407.36. Second Respondent’s annual income in 2010 was less than the R60 000 threshold applied by SARS to be liable for income tax. Second respondent however had three motor vehicles registered in her name in 2010.

[10] The search warrant that was exercised on 7 April 2010 authorised search at night. The warrant authorised Van Wyk an Naicker to search for articles which are on reasonable grounds believed to be concerned in the commission of, or may afford evidence of the suspected commission of or are on reasonable grounds believed to be intended to be used in the commission of the offence(s) of possession and dealing in various drugs and Dagga at house no 132. The police found loose Dagga and cash notes wrapped in separate bundles of R200, R100, R20, R10’s and coins. Van Wyk searched the bathroom in Second Respondent’s presence. He found 1 clear plastic bag containing 4 whole Mandrax tablets and half Mandrax tablet in foil. All these had the words “Boss” pressed onto them. In the kitchen the police found more money in a clear plastic bag that also contained 3 “Stilpane” tablets. Both Respondents denied knowledge of the money and tablets. Both Respondents were arrested for possession of Dagga and Mandrax tablets. The money was counted in their presence and came to R24 139.80. Chemical analysis confirmed that the items seized were drugs, namely cannabis and Mandrax tablets.

[11] On 20 May 2010 Wait and Van Wyk found Crack Cocaine, Mandrax wrapped in foil and 8 clear bags containing Tik hidden in 2 clear plastic bags behind the wardrobe. Cash amounting to R1 982.40 was also found in the room. A chemical analysis of the seized drugs confirmed that the drugs contained methaqualone, methamphetamine and Cocaine.

[12] On 28 July Constable Foord and Warrant Officer Prinsloo were patrolling the area at 23h00 when they received information that

drugs were sold at [.....]. R1 030, 5 Envelopes of Dagga and 11 Mandrax tablets were confiscated at [.....]. The drugs were found

under a loose board in the children’s room. No search warrant was in place in this instance.

[13] Forfeiture is sought against 4 separate amounts of cash totalling R47 813.80 as well as a Mazda 3 motor vehicle with registration FDS 298 EC (the Mazda 3) herein referred to as ‘the property’. Chapter 6 of POCA deals with the recovery of assets that were involved in or derived from criminal activities.

Issues

The issue raised by the Respondents relate to whether the evidence obtained in consequence of the search was admissible for the purpose of determining whether the property was an instrumentality of an offence.

Legal Position

[14] The present application is regulated by section 48 (1) read with section 50 (1).[5] Section 48(1) provides:

“If a preservation of property order is in force the National Director may apply to a High Court for an order forfeiting to the State all or any of the property that is subject to the preservation of property order.” Section 50(1) reads:

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

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

(b) is the proceeds of unlawful activities”. In terms of section 50(4) of the Act, forfeiture orders may be invoked even if there is no prosecution. The guilt or wrongdoing of the owner or possessor of the property is not primarily relevant to the proceedings.”[6]

[15] Section 52 of the Act further provides that any party affected by the forfeiture order can raise the defence that the property was acquired legally or that he or she did not know nor had reasonable grounds to suspect that the property is the proceeds of unlawful activities or instrumentalities of an offence. The standard of proof required in terms of section 52 is on a balance of probabilities.

[16] The court must grant a forfeiture order if it finds on a balance of probabilities that the property is an instrumentality of an offence or the proceeds of unlawful activities as defined in the act. The only discretion that the court has is to exclude the interest of parties that have shown on a balance of probabilities that they acquired interest in the property legally.

Search warrants

[17] At the criminal trial the evidence gathered by the members of the SAPS during the search and seizure of the property was held to be unlawful because the warrants had been improperly issued. The respondents contended that because the search on the property was performed on the strength of a defective warrant, the admission of evidence so gathered in the forfeiture proceedings violated their right to privacy. It may well be that the evidence gathered in a manner that violates rights entrenched in the Bill of Rights could be excluded in appropriate cases. In the affidavits on record the Respondents did not dispute the Applicant’s version of what was found at their homes during the searches.

Instrumentality of an offence

[18] Is defined in the Act as “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”. The forfeiture of instrumentalities of crime and proceeds of unlawful activities must be rationally related to its purposes.[7]

[19] The inter-related purposes of chapter 6 include: (a) removing incentives for crime; (b) deterring persons from using or allowing

their property to be used in crime; (c) eliminating or incapacitating some of the means by which crime may be committed; and advancing the ends of justice by depriving those involved in crime of the property concerned. Thus the provisions must be restrictively interpreted.[8] The primary focus of chapter 6 is not on wrongdoers, ‘but on property that has been used to commit an offence’ or ‘which

constitutes the proceeds of crime’. A criminal conviction is not a condition precedent to forfeiture, and property may be

forfeited even where no charge is pending. The guilt or wrongdoing of owners or possessor’s of property is ‘not primarily

relevant to the proceedings.[9]

[20] Where a forfeiture order is sought the Court thus undertakes a three-stage enquiry. The question here is whether a functional

relation between property and crime has been established.

[21] Reverting to the present matter the applicant’s case is that the Mazda 3 is an instrumentality. The evidence of the ‘Stilpane’

tablets in the Mazda 3 is evidence of a schedule 1 offence, that is theft or section 36 (failure to give account of possession of goods suspected of being stolen) or section 37 (receiving stolen property knowing it to be stolen) of the General Law Amendment Act 62 of 1955.

[22] I am satisfied that all five criteria identified by the SCA in Prophet was met in that-

[22.1] the use of the property was deliberate and planned and not merely incidental and fortuitous;

[22.2] the property was important to the success of the illegal activity insofar as it provided a means to hide the vast amount of tablets from prying eyes;

[22.3] the time period which the illegal activity was conducted with the property was continuous- having regards to the fact that the Second Respondent had other motor vehicles it appears the property was used exclusively for hiding the large box;

[22.4] the illegal use was clearly not an isolated event; and

[22.5] the entire purpose of using and on the probabilities acquiring the property was to carry out an offence.

[23] In the second stage of the forfeiture proceedings the court has to determine whether the owner of the property obtained the property legally and for value and where the owner had acquired the interest that she or he neither knew nor had reasonable grounds to suspect that the property in which the interest is held is the proceeds of unlawful activities.

[24] Section 52 of POCA allows the owner or any other party with an interest in the affected property to apply for an order excluding

their interests in the property from the operation of a forfeiture order. This is also called the “innocent owner defence”.

[25] Before an innocent owner can have his interest excluded from forfeiture he must satisfy the Court on a balance of probabilities

inter alia that:

[24.1] He acquired the interest in the property legally; and

[24.2] He neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence or the proceeds of unlawful activities.

[26] The respondents have not availed themselves of the innocent owner defence. I therefore do not have to give a determinative reading of the second stage provisions.

The third stage/ Proportionality

[27] The general approach to forfeiture once the threshold of establishing that the property is an instrumentality of an offence has been met is to embark upon a proportionality enquiry. The severity of the interference the property was used for the purposes of the commission of the offence.

[28] POCA is an important tool to achieve the goal of reducing organised crime. Some of the relevant factors to be considered

include-

[28.1] whether the property was integral to the commission of the crime;

[28.2] whether the forfeiture would prevent further commission of the offence and its social consequences;

[28.3] the nature and use of the property; and

[28.4] the effect on the applicant of the forfeiture of the property[10]

Application to the facts

[29] The acquittal of Respondent on technicalities illustrates the difficulties the State has to contend with in its endeavours to combat drug-related crimes. Organised crime has become a growing international problem and societies in transition like South Africa are susceptible to organised crime groups, and ordinary criminal law measures are ineffective in targeting these criminal organisations, necessitating extraordinary measures such as civil forfeiture in terms of chapter 6 of the Act.

[30] The drug dealing operated by the Respondents is clearly lucrative. The considerable quantity of drugs and ‘stilpane’

tablets found at [.....] on one occasion valued R64 870. The harmful impact of the quantity of drugs and use of the tablets for

non-medicinal reasons introduced into society would have been massive.

[31] Should the harmful consequences to society were weighed against the value of the property sought to be forfeited, there is certainly no arithmetical disproportionality in forfeiture. The total proceeds which can be extrapolated from Second Respondent’s illegal drug activities would far exceed the value of the Mazda 3 and R 47 813.80 sought to be forfeited. Second Respondent is clearly actively involved in criminal activities which finance her acquisition of assets, that is motor vehicles.

[32] Adv Ronaasen in support of his submission that the property should be returned to the Respondents referred me to the Supreme Court of Appeal case of Ivanor v North West Gambling Board [2012] ZASCA 92 (31 May 2012), the SCA stated at para [15]: “Put differently, the lawfulness of the search and seizure is dependent on the legality of the search warrant. This must necessarily be so as the warrant provides the justification for the search and seizure. If the warrant is declared null and void, it means that there was no basis in law for the search and seizure, which were therefore invalid ex tunc. In this case, the police had no authority to seize the appellant’s goods, albeit that they acted in good faith and believed that they had the power to search in terms of the warrant. Once the order of invalidity was issued, the necessary consequence is that the police acted unlawfully.” The case under consideration can clearly be distinguished as here is a Preservation Order in place.

[33] I am therefore satisfied that the applicant demonstrated on a balance of probabilities that the property is an instrumentality of an offence or the proceeds of unlawful activities. For reasons set out above I make the following order:

33.1 An order is issued in terms of section 50 of the Prevention of Organised Crime Act 121 of 1998 (POCA), declaring forfeit to the State the following property presently subject to a Preservation Order granted by this Court on 26 October 2010.

Cash:

1.1 R20 680.00 (CAS 374/03/2010)

1.2 R24 139.80 (CAS 122/04/2010)

1.3 R1 982.40 (CAS 545/05/2010)

1.4 R1 030.00 (CAS 738/7/2010)

Motor vehicle:

Mazda 3 with registration [….......].

33.2 Pending the taking of effect of this Order regard having been had to section 50 (6) of POCA, the property shall remain under the control of Glynn Llewellyn Fraser (Fraser) of the Asset Forfeit Unit (AFU) Port Elizabeth and the appointment of a curator bonis is dispensed with.

33.3 On the date on which the Order takes effect, to wit 45 weekdays after publication in the Government Gazette, Fraser is hereby expressly authorized, having regard to section 57(c) of POCA to deposit the cash into the Criminal Assets Recovery Account (CARA) and to dispose of the Mazda 3 by sale and deposit the proceeds of the sale into the CARA.

33.4 The Applicant is directed to serve a copy of this Order on Respondents.

33.5 The Registrar of this Court is directed to publish a notice of this Order in the Government Gazette as soon as possible.

33.6 Cost in favour of Applicant.

_______________________

S. JACOBS

ACTING JUDGE OF THE HIGH COURT

Counsel for Applicant

: Adv F. Hack

Instructed by

: Roelofse Meyer Inc.

29 Bird Street

P.O. Box 21554

Central

PORT ELIZABETH

6001

Counsel for Respondent : Adv O.H. Ronaasen

Instructed by

: State Attorney

29 Western Road

[1] Criminal Procedure Act 51 of 1977.

[2] 2011 (2) SACR 301 CC.

[3] Polonyfis v Minister of Police and Others NNO 2012(1) SACR 57 (SCA), at par 19.

[4] Medicine and Related Substance Control Act 101 of 1965.

[5] Prevention of Organized Crime Act 121 of 1998 (POCA).

[6] Prophet v National Director of Public Prosecutions 2006 () SACR 525 (CC).

[7] National Director of Public Prosecutions v RO Cook properties (PTY) Ltd 2004 (2) SACR 208 (SCA) at par 16.

[8] Cook supra at par 18.

[9] National Director of Public Prosecutions and Another v Mohamed NO and Others [2002] ZACC 9; 2002 (2) SACR 196 (CC). (2002) (4) SA 843; 2002 (9) BCLR 970 par 17 check this ref again.

[10] Prophet CC supra par 63.