National Director of Public Prosecutions v Swart and Others (2481/2017) [2018] ZAECPEHC 65 (6 November 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)

Case No: 2481/2017

In the Application of:

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant

And

BERNETT STEPHEN SWARTS

First Respondent

JODINE SWARTS

Second Respondent

HERALDINE SWARTS

Third Respondent

In re: R80 013.80 cash seized on 31 May 2017 and held by SAPS under Kirkwood CAS 117/05/2017 (the cash)

Case No: 3679/2017

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant

BERNETT STEPHEN SWARTS

Respondent

In re: Listed items as per Schedule A seized on 30 May 2017 and held by SAPS under Kirkwood CAS 05/06/2017 (Schedule A items)

JUDGMENT

BESHE J:

[1] This is a matter that concerns two applications for the forfeiture of certain goods / properties. The

goods are divided into two batches. Both batches were confiscated at the same premises on the 30 May 2017 at about 23h30 by members of the South African Police Service (SAPS), who were executing a search and seizure warrant. Subsequent thereto, on the 22 August 2017 and 31 October 2017 preservation orders were issued in respect of the two batches of goods, being: A cash amount in the sum of R80 013.80 and an array of implements / tools respectively. As indicated earlier, the applicant now seeks an order declaring the goods forfeited to the state on the basis that they are proceeds of unlawful activities. Even though the two batches have previously been dealt with under two different case numbers, hence the two preservation orders, the parties have agreed that the applications

for forfeiture in respect of both cases should be argued together. I did not have any difficulty in endorsing this agreement. In my view, not only will that approach be convenient, but it will avoid a multiplicity of applications and the attendant costs.

[2] The applications are rooted in terms of Section 48 of Organised Crime Act 121 of 1998 (POCA). Section 48 (1) provides that:

“48 Application for forfeiture order

(1) 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.”

[3] This forfeiture of the property sounding in money is opposed by first and third respondents. First respondent is also opposed to the forfeiture of the property which is the subject matter of the second application.

[4] It appears to be common cause that the property concerned was seized from the home of the first respondent

and his wife, who is the third respondent who are second respondent’s parents.

[5] Where the parties diverge is as regards: the place where the money was found, in particular a sum of some R79 000.00, the origin thereof, as well as the origin of goods found in first respondent’s store room. Answers to these questions will enable the court to determine whether the property represents the proceeds of unlawful activities and therefore subject to forfeiture.

[6] According to the applicant’s evidence, upon the police searching first respondent’s shop, they found drugs on top of beer cases as well as an amount of R79 644.00 which was inside a black bag with a “Smirnoff”

inscription. This was in the presence of first respondent who admitted that the drugs belonged to him. This is according to officers Pumla Manyube and Charlotte Yoyo.

[7] Officers Ngqakaqha and Majuba stated that they searched a room inside the house where second respondent was sleeping. They found a green plastic container with

dagga and an amount of R369.40. They also found more drugs inside a red and white cup, those being mandrax tablets in the same room.

[8] Officers Matthys and Prins’s statements revealed how and where the items concern in the second forfeiture application were found. Inter alia that four cell phones, a charger and SANDF camouflage jacket were found inside first respondent’s bedroom. The jacket was found inside his wardrobe. The tools and implements were found in a store room situated at the back of his house.

[9] The search and seizure was conducted in the early hours of the 31 May 2017. Statements by the six officers mentioned above seem to have been made later that very same day.

Respondents’ evidence

[10] Briefly stated, first respondent’s evidence is that the money found by the police at his premises was generated from the three businesses that he runs, being a tavern, spaza shop and selling of livestock. Having sold an Ox in January 2017 for R12 000.00 and another for R10 000.00. That due to the changing dynamics of the business, together with his wife, intend venturing into the transport business, to this end they started saving for a Toyota Quantum minibus. Although they have a safe in the house they did not keep their savings in the safe because that is the first place robbers would look for money. Instead they kept the money they were saving for the minibus in a small cooler bag with “Smirnoff” inscription which in turn was placed inside the wardrobe with clothes. At the time of the raid they had accumulated R79 000.00. A sum of R3 644.40 comprising of small change was inside a plastic container in front of his wife’s (third respondent) bed was also taken by the police.

[11] Paragraph 13 of first respondent’s opposing affidavit reads as follows:

“I am the holder of a Plusplan bank account with Standard Bank, Kirkwood with account number 084894628 that is used for our personal business. On a continuous basis I deposit funds into this account by making use of auto bank facilities.”

[12] First respondent further states that two weeks before the raid, he became aware that second respondent (his daughter) was selling drugs (mandrax and dagga). Second respondent told him she was keeping some of the drugs in the shop. He admitted to the police that the drugs found inside his shop belonged to him in order to protect her daughter.

[13] Second and third respondents deposed to confirmatory affidavits in respect of those aspects that related to them.

[14] Regarding the tools and equipment found in his store room, first respondent explained that those were old and broken and that they were “bought, traded or received from family members and members in our community”. He then goes on to explain how he acquired the individual tools. He explains in respect of a deep fryer found at his premises, that his wife bought it from Home Choice.

[15] All in all the respondents deny that the property seized from their home by the police constitutes proceeds of unlawful activities or that they were instrumentality of any offence.

[16] Ms Wentzel, Mr Moos and Mr Goliath confirmed that some of the goods, being pressurized sprays, bush cutters, car radio /tape equipment, compressor and welder were obtained from them respectively.

[17] According to Captain Matthys who recovered the items, when first respondent was questioned about the items, he explained that they were sold to him by members of the community. When asked if it was exchanged for drugs, he responded by saying that Matthys knows how it goes. Based on this explanation, Matthys took possession of goods as he suspected they had been stolen and that therefore he was in possession of property suspected of having been stolen.

[18] Constable Nagan is / was conducting investigations as to whether first respondent was involved in buying stolen property from criminal elements. He deposed to an affidavit in support of the issuing of a Section 205 subpoena in order to obtain first respondent’s phone records. Therein he states that some of the items were positively identified as being those of Habata farms. It is however not clear whether they were stolen from the Habata farm from Constable Nagan’s affidavit.

[19] First respondent’s lack response to this allegation in said to be telling. I am not sure if it is telling. The allegation does not go so far as to allege that the items were stolen from the said farm (Habata).

[20] From the brief exposition of the evidence of the parties given and as stated earlier in this judgment, it is clear that the parties diverge as to where the large sum of money that was confiscated by the police was found. This then raises a dispute of fact. The rule that was formulated in inter alia Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[1] (known as Plascon-Evans Rule) comes into play in those circumstances. It is namely that, where in motion proceedings, disputes of fact arise on the affidavits, a final order can only be granted if the facts averred in applicant’s affidavits, which have been admitted by the respondent, together with facts alleged by the respondent, justify such order. If, however, the respondent’s

version consists of bald or palpably implausible, farfetched or untenable dispute(s) of fact, the court is justified in rejecting it on the basis of the papers before it.

[21] Evidence reveals that a sizable number of police officers conducted the search and seizure operation at respondents’ home during the early hours of the day in question. It would also appear that not all of them would search parts of first respondent’s house at the same time. Officers Manyube and Yoyo searched the spaza shop. Both gave a detailed, unanimous account of where the black bag with the “Smirnoff” inscription and contained the money was found. As well as to the amount that was recovered. Their statements were deposed to later on that day (day of search). Ngqakaqha and Majuba searched a room in the house where second respondent was sleeping. Matthys and Prins searched the store room and first respondent’s bedroom and store room and found the items that are the subject of the second

forfeiture application.

[22] Manyube, Yoyo, Ngqakaqha and Majuba give full description of where the money and drugs were found including the colour of the containers. Drugs they allege were found

inside he spaza shop and ± R70 000.00 as well as the drugs and money found in second respondent’s bedroom.

[23] First respondent admits that he told the police on the night of the raid that the confiscated drugs belonged to him in an attempt to protect second respondent. The problem with this is that drugs were found in second respondent’s room together with some money. Second respondent’s drugs and money. First respondent does not deny that drugs were found inside his spaza shop. Contrary to what he suggests, namely that second respondent said she was hiding some of the drugs inside the sop, the drugs are alleged to have been found on top of beer crates, not hidden. First respondent does not seem to have bothered to find out where the drugs were hidden or whether second respondent had gotten rid of them. According to him, he had made it clear to second respondent that what she was doing was wrong (selling drugs). Sight cannot be lost of the fact that first respondent admitted that the drugs were his. It was only months later that first respondent asserts that he only admitted that the drugs were his to protect his daughter. It is also baffling why the police officers would allocate a different place as the one where they found the “Smirnoff” bag with the R70 000.00, instead of it being hidden behind first respondent’s clothes

inside his wardrobe. They could not have been privy to the explanation that he would give about the origin of the money in a bid

to thwart that explanation or defence.

[24] First respondent’s explanation for keeping their savings, which had accumulated to over R70 000.00 in a cooler bag instead of in the safe is that it is the first place robbers would look for money. But is a safe not meant to keep one’s possessions safe? There is no explanation proffered as to why the money was not kept in the Plus Plan bank account first respondent held in Standard Bank. A safe and a bank account are the most obvious places to keep one’s money. He would even earn interest on his money in a bank account.

[25] In my view, first respondent’s version in this regard is palpably implausible.

[26] Regarding the second batch of the property, first respondent creates the impression that he is a hoarder who collects items and keeps them in his store room. He retorts that “Most of the items were old tools and equipment that was broken that I had either bought, traded or recovered from family members and members of our small community”. (my underlining). To mention a few examples: he suggests that the cell phones found at his house had been left by some of his patrons in a state of drunkenness. That this happens frequently. But that they would come back to enquire about their phones. Why this did not happen with the four cell phones found at his house is a mystery. About a Sony Video Recorder, he states “This Sony Video recorder is ancient in the sense that the technology is completely outdated. Many years ago, I had bought it from Eldo Van der Merwe together with the Sorex Camera listed in 13.34, which camera I have never used because the technology is also outdated.” It is not clear what claim or title Eldo Van der Merwe had or why he was selling them. As regards industrial deep fryer, he states that it was bought by third respondent from Home Choice, a company that sells household items by means of a catalogue. He further states that when it was confiscated by the police, third respondent was still paying monthly instalments on it. Would it not have been the easiest and logical thing for him to produce proof of these payments which continued after the seizure of the deep fryer by the police? In the answering affidavit filed in respect of the first forfeiture application, first respondent states at paragraph 22 that the goods were broken and old tools and equipment. Amongst which was a new Deep Fryer third respondent had recently bought at Home Mark in Port Elizabeth. Not Home Choice by means of a catalogue.

[27] In the circumstances, I am unable to find that the version proffered by the first respondent in respect of both batches of property confiscated by the police on the 31 May 2017 is plausible. It is rejected.

[28] I am satisfied that the applicant has shown on a balance of probabilities that the property in question was derived in connection with unlawful activities and therefore there will be no reason to exclude first and third respondents’ interest from the amount of R79 644.00 in cash and items listed in Schedule A draft preservation of in respect of second application.

[29] Accordingly there will be orders in terms of the draft orders attached to the Notices of Motion in respect of both applications for forfeiture.

N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant : Mr W Myburgh

Instructed by : THE STATE ATTORNEY

29 Western Road

Central

PORT ELIZABET

Ref: W Myburgh/1316 and 1705/17/Y

Tel.: 041 – 585 7921

For the Respondents : Adv: H Bakker

Instructed by : PR VAN RHYN, MINNAAR AND CO INC

RhyMin Building

Republic Square

UITENHAGE

Ref: Mr GP van Rhyn/le/KK4447

Tel.: 041 – 922 9124

Date Heard : 25 October 2018

Date Reserved : 25 October 2018

Date Delivered : 6 November 2018

[1] [1984] ZASCA 51; 1984 (3) SA 623 (A) 634 – 635. See also NDPP v Zuma [2009] ZASCA 1; 2009 (2) SA 277, Wightman t/a JW Construction v Headfour Pty Ltd and Another 2008 (3) 371.