National Director of Public Prosecutions v Maziyana and Another (2563/2015) [2015] ZAECGHC 72 (30 June 2015)

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 DIVISION – GRAHAMSTOWN)

CASE NO.: 2563/2015

In the matter between:

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

And

ZOLA MAZIYANA

1st Respondent

ZUKISWA MAZIYANA

2nd Respondent

JUDGMENT

BESHE, J:

[1] This matter concerns a preservation order that was granted by Smith J in terms of Section 38 (2) of the Prevention of Organised Crime Act, 121 of 1998 (POCA) on the 25 May 2015 following an ex parte application by the National Director of Public Prosecutions. The order was in respect of inter alia respondents’ immovable property, bank accounts held by the respondents as well as other individuals and two motor vehicles.

[2] Serving before me as I understand is an application for the reconsideration of Smith J’s order in so far as it concerns the second respondent’s salary that she earns from Eskom. The prayer in this regard being that the First National Bank account into which her salary is deposited should be unfrozen, so to speak. Secondly that a motor vehicle, Toyota RAV 4 should be released for use by the second respondent who is two months pregnant. These prayers are encapsulated in respondents’ heads of argument as follows:

“For now all that the respondents seek from this Honourable Court is for the court to reconsider the preservation and release the stranglehold it has on the respondents. Such stranglehold is the fact that the respondents do not have access even to the legitimately earned salary which is not subject to the alleged fraud. The said salary is derived from Eskom where the second respondent works. The salary for May was paid into the cheque account which is under the preservation order and the respondents cannot access any funds there from. The other vehicle, the RAV 4 be released to the respondents for their use as the second respondent is pregnant and has to drive to and from work.”

Although the curator bonis who has been appointed in terms of Smith J’s order has not been joined in these proceedings, he has indicated that he is prepared to release R16 000.00 from the FNB account concerned, which, it appears to be common cause, is second respondent’s monthly salary.

[3] As far as the Toyota RAV 4 motor vehicle is concerned, the release thereof is opposed by the applicant. This, on the basis that no case has been made for the release of the said motor vehicle. That it is an item or property that is from the proceeds of an unlawful activity.

[4] It is however not clear why the Toyota RAV 4 is specifically required and not any of the two motor vehicles. I assume this is because it is the motor vehicle that second respondent used for commuting to work as it would appear from the confirmatory affidavit deposed to by her where she explains how the said motor vehicle was taken from her. Both parties acknowledged that Section 44 of the Act provides for payment of reasonable living and legal expenses from the property that is subject to the preservation order. Mr Nyangiwe for the respondents made it plain that what respondents seek is not relief in terms of Section 44. It is so that certain requirements must be met in order for an application in terms of Section 44 to succeed.

[5] There can be no denying that a preservation order is not meant to punish a respondent who in any event is presumed innocent. One of the aims of the POCA is to prevent criminals from benefiting from proceeds of criminal activities. The effect of a restraint order is to place a respondent’s property beyond his control pending the outcome of criminal proceedings. (See Fraser v Absa Bank Ltd [2006] ZACC 24; 2007 (3) SA 484 (CC))

[6] The allegation against the respondents is that through fraudulent means, first respondent embezzled an amount of ± R6.8m

belonging to the Twelve Apostles’ Church of Christ which he used to purchase both immovable and movable properties and by

depositing sums of money to various accounts belonging amongst others, the second respondent who is his wife.

[7] Apart from stating that second respondent requires the motor vehicle to drive to and from work and that she is pregnant, no other reason is given why it should be freed from the restraint. I am not satisfied that the respondents have made out a case for the reconsideration of the order of the 25 May 2015 in so far as the Toyota RAV 4 motor vehicle is concerned. In so far as the second respondent’s salary is concerned, a case has been made for the payment thereof to her.

[8] Accordingly it is ordered that the curator bonis should arrange for payment of the amount R10 523.53 standing in second respondent’s credit in cheque account number [………]

held with FNB. And thereafter to make arrangements that second respondent’s salary from Eskom for May, if paid after date of Smith J’s order, and thereafter every month should such salary be paid, is paid to second respondent until the finalisation of the criminal

proceedings or forfeiture application.

There will be no order as to costs.

_______________

N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant : Mr Wolmarans

Instructed by

: NN DULLABH & CO.

5 Beetrams Street

GRAHAMSTOWN

Tel.: 046 – 622 6611 / 6696

Ref.: Mr Wolmarans

For the Respondent : Adv: XS Nyangiwe

Instructed by : YOKWANA ATTORNEYS.

87 High Street

Tel.: 046 – 622 9928

Ref.: N Yokwana/M145

Date Heard : 25 & 26 June 2015

Date Reserved : 26 June 2015

Date Delivered : 30 June 2015