National Director of Public Prosecutions v Skapu (2028/2013) [2015] ZAECGHC 2 (29 January 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.: 2028/2013

DATE: 29 JANUARY 2015

In the matter between:

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS.................Applicant

And

JACKSON SKAPU..............................................................................Respondent

In re: Toyota Hilux [F……….] (The Property)

JUDGMENT

BESHE, J:

[1] This is an application for an order in terms of the provisions of Section 50 of the Prevention of Organised Crime Act, 121 of 1998 (POCA) declaring forfeited to the state, a Toyota Hilux with registration number [F……..] EC (the property). The property was preserved as per Tshiki J’s order of the 27 June 2013.

[2] Events leading to the application are briefly that: On the 24 April 2013 the property was stopped by members of the South African Police Services on the N6 Road in Aliwal North. It was being driven by one Phindile Nogumenge. Upon the property being searched, eleven (11) bags of dagga were found.

[3] It is common cause that the property is registered in respondent’s name.

[4] It also appears to be common cause that the property was used as an instrumentality of an offence.

[5] Section 50 of the Prevention of Organised Crime Act provides that:

(i)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. Section 52 provides for the making for an order excluding certain interests in the property which is subject to the order provided for in Section 50 supra. The court may make an order under Section 52 if it finds, on a balance of probabilities, that the claimant for the exclusion of an interest in the property, neither knew nor had reasonable grounds to suspect that the property is an instrumentality of an offence referred to in Schedule 1.

[6] It is on the basis of Section 52 that respondent opposes the application to have the property forfeited to the state.

[7] The basis for applying for the exclusion of his interest in the property from the forfeiture order is contained in paragraph 7 of respondent’s opposing affidavit, and reads thus:

“On or about 23 April 2013 one PHINDILE NOGUMENGE approached me to ask if he could utilise the Vehicle to transport certain goods to Bloemfontein. I duly agreed to this request and allowed him to utilise the Vehicle. It appears that the said NOGUMENGE transported dagga in the Vehicle, without my knowledge or consent, and was arrested for dealing in dagga. I do however state that although I allowed him to use the Vehicle, I never at any stage was aware that the Vehicle would be used for the transport or dealing in dagga or any illegal activities and had no reason to suspect same. The Vehicle was confiscated on 24 April 2013 and is currently not in my possession. I attach hereto NOGUMENGE’s affidavit as “JS2”.”

[8] Phindile Nogumenge deposed to an affidavit (JS2) from which the following emerges:

He resides in Mdantsane, East London. On the 23 April 2013 he travelled to Queenstown to pay respondent a visit. On arrival in Queenstown respondent sent him to buy some spares for his motor vehicle. Whilst in town he was approached by a Nigerian man who asked him to transport his goods in a van to Bloemfontein. (it would appear Nogumenge was driving respondent’s van, the property in question at the time). The Nigerian man offered to pay R3000.00. He then went back to the respondent to ask for his permission to use the property to transport goods to Bloemfontein. He got respondent’s permission. Proceeded to the Railway Station where some goods were loaded into the van and he was paid in cash. It was further agreed with the Nigerian man that he would wait for other male persons who would be travelling from Bloemfontein to Queenstown who also had goods to load into the property for transportation to Queenstown. Nogumenge having arrived in Bloemfontein, the gentlemen he was to transport back to Queenstown arrived whilst it was still dark. Nogumenge left to go and buy food as the men were busy loading their goods into the property. The men he met in Bloemfontein only paid him R1000.00 for Diesel promising that R1500.00 balance would be paid by their boss in Queenstown. It is common cause that the property was stopped by the police on the way and dagga was found therein.

[9] It also emerged from the founding affidavit that on the 21 September 2012 the same vehicle, the property, was stopped by the police on the N6 Road in Aliwal North on suspicion that it was transporting dagga from Lesotho. Upon being searched twenty six (26) bags of dagga were found therein. The property was driven by Sandile Banise who together with his passenger Nomawethu was arrested. It also transpired that on the 19 July 2010 the respondent was charged with dealing in drugs in Mdantsane. On 29 September 2011 a case involving fifty eight (58) bags of dagga that were found in a vehicle belonging to the respondent was opened. As a result of a latter matter, respondent’s vehicle was forfeited to the state as per Msiwa AJ’s order of 15 March 2012. In the affidavit deposed to by the respondent in terms of Section 52 (2A) of the Prevention of Organise Crime Act at paragraph 20.1, he admits having been involved in drug related cases in 2010 and 2011 as alleged by the applicant and that a vehicle belonging to him was forfeited to the state on the 15 March 2012, but contends that these historical events have got nothing to do with the vehicle concerned in this application. He insists that he did not have any knowledge and never consented to the property being used for an unlawful purpose. That he took all reasonable steps to prevent the use of the property as an instrumentality of an offence.

[10] In respect of the 2012 incident respondent states that he had left his vehicle with Banise to repair same. Unbeknown to him Banise used the vehicle to transport dagga. He also suffered the misfortune of having a vehicle belonging to him forfeited to the state in 2012 in connection with an incident that occurred in Sterkspruit on the 20 September 2011. In light of the above the circumstances surrounding the incident involving Nogumenge are somewhat astonishing. Upon being informed by Nogumenge about the request to transport goods to Bloemfontein, respondent appears to have readily agreed. Nowhere does it appear that he questioned Nogumenge about this request or insisted on meeting the hirer of the motor vehicle. He did not enquire about the identity of the hirer of the motor vehicle, the nature of goods to be transported. He does not seem to have been involved in the determination of the amount to be

paid. It is not clear what was to be in it for him, seeing as it is, he is the owner of the property. In view of his past experiences with transportation of goods and the previous forfeiture of a motor vehicle to the state, can it be said in the circumstances he took all the necessary steps to prevent the use of the property as instrumentality of crime?

[11] I am not persuaded that the other incidents involving the respondent and his motor vehicle in cases involving drugs “the historical events” are irrelevant to this application. It is indeed so that similar fact evidence is generally inadmissible because it is irrelevant. Trite also is the principle that similar fact evidence will be admissible only when it is both logically and legally relevant. In S v M 1995 (1) SACR 667 (BA) at 684 d – e it was stated that “Similar fact evidence is evidence which refers to the peculiar or immoral or

illegal conduct of a party on an occasion or occasions other than the incident or occurrence in contention, but which is also of such character that it is pertinent to or in essentials similar to the conduct on the occasion which forms the issue or subject matter in dispute”. I agree with Mr Mbilini for the applicant that the previous occurrences involving the respondent personally and or his vehicles in dagga related offences, show a modus operandi on his part, where he would apparently use “mules” or “runners” to convey dagga and then claim that he was not aware that they would use his vehicle to transport dagga. I am mindful of the fact that there is no evidence that Banise or anyone who was driving respondent’s vehicle at the time it was found to be transporting dagga implicated the respondent as the person who sent them. Be that as it may, it seems that respondent would be so unlucky or it is mere co-incidence that people with whom he entrusted his motor vehicles so happen to choose to use same to transport dagga. In view also of the fact that he has also, by his own admission been involved in cases involving drugs. It appears to be highly improbable that this is a mere coincidence or ill-luck on the part of the respondent.

[12] I am satisfied that the property was used as an instrumentality of crime. I am not persuaded that the respondent has succeeded in showing his lack of knowledge that the property was being used as an instrumentality of crime or that he took all the necessary steps to prevent it being used as such. And that therefore his interest in the property should be excluded from the forfeiture order.

[13] In the result the following order will issue:

1. An Order is granted in terms of the provisions Section 50 of the Prevention of Organised Crime Act, 121 of 1998 (the POCA) declaring forfeit to the state, a Toyota Hilux with registration number FRR 775 EC (the property), which is currently under preservation in terms of the preservation of property order granted by this Honorable Court on 27 June 2013.

2. The Registrar of this Court is directed to publish this Order in the Government Gazette as soon as possible after the Order is made.

3. In terms of Section 50(6) of POCA, Lucky Mdutyana (Mdutyana), a Senior Secial Investigator in the Asset Forfeiter Unit in East London is directed to deal with the property as follows:

3.1 assume control of the property and take it into his custody;

3.2 sell the property by public auction;

3.3 deposit the proceeds of the sale of the property into the Criminal Recovery Asset Account established under section 63 of POCA, Account Number: 80303056 held at South African Reserve Bank, Vermeulen Street, Pretoria

4. The property shall remain in the custody and control of Mdutyana aforementioned, pending the delivery thereof into the Criminal Asset Recovery Account in terms of paragraph 3 therein above.

5. Any person whose interest in the property concerned is affected by the forfeiture order, may within 20 days after he or she has acquired knowledge of such order, set the matter down for variation or rescission by the Court.

NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant: Adv. M Mbilini

Instructed by : NN BULLABH & CO.

5 Bertram Street

GRAHAMSTOWN

Tel. 046 – 622 6611

Ref. Mr Wolmarans/mlr

For the Defendants : Adv. Boswell

Instructed by : YOKWANA ATTORNEYS

EPBS Building

87 High Street

Tel. 046 – 622 9928

Ref. N Yokwana/S19

Date Heard : 7 August 2014

Date Reserved : 7 August 2014

Date Delivered : 29 January 2015