National Director of Public Prosecutions in re Preservation Orders (039/2005), Ex parte [2005] ZAECHC 19; 2005 (2) SACR 198 (SE) (24 May 2005)

FORM A

FILING

SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO: 039/2005

PARTIES: THE NATIONAL DIRECTOR OF

PUBLIC PROSECUTIONS

REFERENCE NUMBERS

Registrar: 1170/05; 1171/05; 1132/05; 1133/05; 1169/05

DATE OF HEARING: 22 MARCH 2005

DATE DELIVERED: 24 MAY 2005

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

for the State/Applicant(s)Appellant(s): W KINGSLEY

for the accused/respondent(s):

Instructing attorneys:

Applicant(s)/Appellant(s):STATE

ATTORNEYS PORT ELIZABETH

Respondent(s):

Reportable

Of interest

In the High Court of South Africa

(South Eastern Cape Local Division) Case No

Delivered:

In the matter of the ex parte applications of

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant

In re preservation orders for

1 Motor vehicle CXG 615 EC Case No 1170/2005

2 Motor vehicle CPL 138 EC Case No 1171/2005

3 Motor vehicle CMV 233 EC Case No 1132/2005

4 Motor vehicle CJH 334 EC Case No 1133/2005

5 Motor vehicle BLT 284 EC Case No 1169/2005

SUMMARY: Applications for a preservation order of motor vehicles in terms of Chapter 6 (section 38) of the Prevention of Organized Crime Act 121 of 1998 – no proof that the motor vehicles were an instrumentality of the statutory offence of driving a motor vehicle while under the influence of alcohol, within the meaning of section 38(2)(a) of the Act – the machinery of Chapter 6 inappropriate – preservation orders refused.

JUDGMENT

JONES J:

[1] On 22 March 2005 the National Director of Public Prosecutions (the NDPP) brought five ex parte applications for preservation orders in respect of five motor vehicles in terms of section 38(1) of the Prevention of Organized Crime Act No 121 of 1998. The applications were moved at the same time. Although the notice of motion says that they were to be moved in chambers I preferred to deal with them in the judicial atmosphere of the court room rather than informally; but they were heard in camera as required by section 74. Each application arises out of a pending criminal charge of driving a motor vehicle whilst under the influence of intoxicating liquor in contravention of section 65(1)(a) of the National Road Traffic Act No 93 of 1996, and, in some instances, other contraventions of the Act. The cause of action in each application is identical. It is that there are reasonable grounds to believe that the motor vehicle was ‘an instrumentality of an offence’ within the meaning of section 38. Because the point in issue is identical in each application, it is convenient to deal with all five applications in a single judgment.

[2] Sections 38(1) and (2) authorise a High Court to make an order (called a preservation order) prohibiting any person from dealing in any manner with any property where the court

‘has reasonable grounds to believe that the property concerned . . . is an instrumentality of any offence referred to in Schedule 1 or is the proceeds of unlawful activities‘.

None of these applications concerns property which is alleged to be the proceeds of unlawful activities. The jurisdictional facts for the section to come into operation are

reasonable grounds for belief

that property is an instrumentality of an offence, and

that the offence is referred to in Schedule 1.

[3] The NDPP relies on item 33 of Schedule 1 for satisfaction of the third requirement. Item 33 refers to ‘any offence the punishment wherefor may be for a period of imprisonment exceeding one year without the option of a fine’. This includes the offences involved in the present applications, i.e. the offences of driving while under the influence of intoxicating liquor or with an excessive amount of alcohol in the blood, which are created by section 65 of the National Road Traffic Act. Section 89(2) of that Act provides for a sentence not exceeding 6 years’ imprisonment for these offences. This jurisdictional fact is established in all five cases.

[4] The crisp issue is whether the motor vehicles being driven at the time of the alleged commission of these offences is on that account an instrumentality of the commission of the offences within the meaning of the section 38(2)(a). Section 1 defines ‘instrumentality of an offence’. It 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 definition is in wide terms. Its wideness is primarily in respect of the time and place of the commission of the offence, but in addition to that the literal meaning of the phrase ‘concerned in the commission of an offence’ is wide. Nevertheless, this phrase, and the term ‘instrumentality of an offence,’ must be interpreted constitutionally and restrictively, rather than liberally (National Director of Public Prosecutions v (1) RO Cook Properties (Pty) Ltd; (2) 37 Gillespie Street Durban (Pty) Ltd and another; (3) Seevnarayan 2004 (8) BCLR 844 (SCA) paragraph 12 to paragraph 32, especially paragraphs 19, 27 and 32). The judgment in Cook Properties takes root from the Constitutional Court’s interpretation of the overall purpose of Chapter 6 in National Director of Public Prosecutions v Mohammed NO and others [2002] ZACC 9; 2002 (4) SA 843 (CC).

[5] These two judgments give a detailed analysis of the intention of the Act and the requirements of a preservation order in respect of property which is an instrumentality of an offence, the Mohammed case from the point of view of constitutional validity, while the Cook Properties judgment is the yardstick with regard to the legal meaning of instrumentality of an offence. Paragraph 10 of Cook Properties and paragraph 17 of Mohammed point out that a preservation order is the preliminary step in a two-stage procedure for forfeiture of the property under Chapter 6. Unlike forfeiture under Chapter 5, Chapter 6 is not conviction-based and may be invoked even where there is no charge. When it is invoked its penal effect must not be overlooked, but because it is not conviction oriented it has

‘the important interpretative consequence that . . . [it is] focused, not on the wrongdoers but on property that has been used to commit an offence . . . ‘.

The primary purposes of a forfeiture order include removing incentives for crime, deterring persons from using property for crime, neutralizing property previously used for crime, and advancing the ends of justice by depriving those involved in crime of the use of that property (paragraph 18). In achieving these objectives the focus of the Act is

‘not on the guilty state of mind of the wrongdoer, but on the role the property plays in the commission of the crime . . . .The question is whether a functional relation between the property and the crime has been established’ (paragraph 21).

This embraces a close relationship between the purposes of the forfeiture and the property to be forfeited. The purpose of the forfeiture in any given case must be compelling, and

-‘a proportionality analysis – in which the nature of and value of the property is assessed in relation to the crime involved and role it played in its commission – may . . . be appropriate’ (paragraph 30).

[6] Paragraphs 31 and 32 of the Cook Properties judgment set out the Supreme Court of Appeal’s conclusions on the meaning to be given to the words ‘instrumentality of the offence’ and ‘concerned in the commission of the offence’ in this and any other case. They read:

‘[31] As will appear when we discuss the individual cases, it is not necessary for us to determine comprehensively what standard applies, nor (because of their outcome) to apply a proportionality analysis to the appeals before us. For now it is enough to say that the words “concerned in the commission of an offence” must in our view be interpreted so that the link between the crime committed and the property is reasonably direct, and that the employment of the property must be functional to the commission of the crime. By this we mean that the property must play a reasonably direct role in the commission of the offence. In a real or substantial sense the property must facilitate or make possible the commission of the offence. As the term “instrumentality” itself suggests (albeit that it is defined to extend beyond its ordinary meaning), the property must be instrumental in, and not merely incidental to, the commission of the offence. For otherwise there is no rational connection between the deprivation of property and the objective of the Act: The deprivation will constitute merely an additional penalty in relation to the crime, but without the constitutional safeguards that are a prerequisite for the imposition of criminal penalties.

[32] It follows that we endorse broadly the conclusion in those cases, following the first-instance decision in NDPP v Carolus and others, [see footnote 36 below] where a narrow rather than a wide interpretation of the definition of “instrumentality” was held appropriate. Here, despite its different (and pre-constitutional) context, we find practical assistance in S v Bissessue, [see footnote 37 below] where a magistrate declared forfeit a motor vehicle and fishing rods used in fishing without a licence under an ordinance that, in addition to a criminal penalty, required the court to declare any article used “in, for the purpose of, or in connection with the commission of the offence” forfeit. On appeal the forfeiture of the fishing rods was upheld, but that of the vehicle was set aside. The court held that “to qualify for forfeiture the thing must play a part, in a reasonably direct sense, in those acts which constitute the actual commission of the offence in question”. The same in our view applies to “instrumentality of an offence”. As suggested in NDPP v Prophet [see footnote 38 below] the determining question is whether there is a sufficiently close link between the property and its criminal use, and whether the property has a close enough relationship to the actual commission of the offence to render it an instrumentality. Every case will of course have to be decided on its own facts.’

Footnote 36: 1999(2) SACR 27 (C) [also reported at [1999] 2 All SA 607 (C) – Ed] [affirmed by this Court on the restrospectivity point: 2000 (1) SA 1127 (SCA) [also reported at [2000] I All SA 302 (A) – Ed] at 39f-g per Blignualt J (properly qualifies as an instrumentality where it “has been used as a means or instrument” in the commission of the offence or in addition “where it is otherwise involved in the commission of the offence”), followed by Foxcroft J in NDPP v PATTERSON and another 2001 (2) SACR 665 (C) at 667 [also reported at [2001] 4 All SA 525 (C) – Ed] and by Griesel J in Seevnarayan 2003 (2) SACR 260 (C) [also reported at [2003] I All SA 240 – Ed] paras 33-36 and referred to by NC Erasmus J in National Director of Public Prosecutions v Prophet 2003 (2) SACR 287 (C) paras 2Off. [Also reported at 2003 (8) BCLR 906 (C) – Ed.]

Footnote 37: 1980 (1) SA 228 (N) per Kumleben J, James JP concurring.

Footnote 38: 2003 (2) SACR 287 (C ) para 26 per NC Erasmus J.

[7] This is all in line with the stated purpose of the short title which refers to ‘the civil forfeiture of criminal assets that have been used to commit an offence’. It remains for me to apply the principles to the facts of these cases. When I do so I conclude that the motor vehicles were not an instrumentality of an offence within the meaning of the section. There is no close and compelling functional relation between the motor-car in question and the commission of the offence, which might have arisen if, for example, there had been connected to the mechanical or electrical system of the vehicle an inhaling device which could be used to camouflage the amount of alcohol in the breath. To use the language of Cook Properties (paragraph 34) there is nothing in the nature of the motorcars or the manner of their utilization to show that they were employed in some way to make possible or to facilitate the commission of the offence of drunken driving. The only link is that they were the vehicles being driven at the time of the commission of the offences, which in my view makes them purely incidental to the commission of offences. In each case the identity of the vehicle is immaterial. The driver would still have committed the offence if he had chosen to drive another motor-car. In the nature of things driving a motor vehicle is a necessary incidence of the offence of driving a

motor vehicle while under the influence of liquor. The offence cannot be committed other than by the driver driving (or, for facilitation of proof, by his being seated in the driver’s seat). This in my view emphasises that the use of the motor vehicle is incidental. There is no functional characteristic of the vehicle to make it an instrument for or concerned in the unlawful act of driving while under the influence. There is, in other words, nothing about the vehicle which has bearing on its unlawful or criminal use. Contrast the example of the use of a vehicle for the unlawful conveyance of contraband. It is easy to see that a vehicle which has been specially modified to conceal drugs or weapons which are to be smuggled into the country is concerned as an instrumentality in the commission of the offence. It is an instrumentality especially because its modifications contribute to the commission of the offence of introducing and transporting contraband. Further, the use of an unmodified vehicle to convey contraband or to be used as a means of getting away from a bank robbery may in the circumstances be sufficient for a conclusion that is was an instrumentality. See for example NDPP v Engels 2005 (1) SACR 99 (C) 108-109 in paragraphs 37 to 40. Another example illustrating the need for a direct functional link between a vehicle and the criminal character of its use appears in S

v Bisessue supra, which is approved in Cook Properties. There the court held on appeal that a vehicle used to convey a fisherman to an from the dam where he committed the offence of unlawfully fishing without a license was not used ‘in connection with the commission of the offence’ in the sense intended in the section of the Ordinance which had been contravened. In explaining its decision the court commented that the vehicle was ‘not used in this sense for fishing as one might, for instance, perhaps have concluded if its headlights had been used to attract fish at night as part of the fishing operation’. In the headlights example the car would not merely be driven and, therefore merely be used as a conveyance for the commission of the offence. It would be put to criminal use directly in the commission of the offence in a functional way.

[8] The facts in the applications now before me are distinguishable. I believe that here the link between the motor-cars and the commission of the offence is the same kind of link as that in Cook Properties. There, the NDPP sought to have declared forfeit the house where kidnapping and offences against pubic morals were committed, but the location of the crime was held to be purely incidental to the commission of the offences, unlike in the case of National Director of Public Prosecutions v Prophet supra, where part of a house was fitted out as a clandestine laboratory which was used unlawfully for the manufacture of drugs. In these five applications, as in Cook Properties, the identity or nature of the property has nothing to do with the criminal elements of the offence, and it is for that reason purely incidental.

[9] Other arguments can be advanced which may produce the same result. They include the argument that the general purposes of the Act as a whole, as revealed by its preamble, its structure, and the measures it introduces in order to achieve its purposes show that if the Act is constitutionally and purposively interpreted it does not intend that a motor vehicle is an instrumentality in these circumstances (Mohammed’s case paragraphs 14, 15 and 16). The prevention of drunken driving is not related to any of stated objectives of the Act. As I understand the Mohammed judgment and the way it is explained and applied in Cook Properties, the Act is a necessary measure because the existing machinery of our criminal procedure is inadequate when viewed against ‘internationally accepted procedures for stripping criminals of the proceeds of their crimes, the purpose being to remove the incentive for crime and not to punish them’ (Mohammed paragraph 16). This must, of course, be done constitutionally, because the Bill of Rights precludes legislation which permits the arbitrary deprivation of property and it requires a strong rational basis, backed by sound reasons of policy, before deprivation of property can regarded as permissible and not arbitrary (Cook Properties paragraph 15). I would have difficulty in finding for the NDPP in the light of these considerations. That result

would permit the use of the Act to deal with the social problem of drinking and driving. This purpose does not in my view rest comfortably on the framework of legislation which is specially designed to bring our procedure into line with internationally accepted measures for combating organized crime, crime syndicates, gangsterism, money laundering and the like, which are the predominant purposes set out in the short title and preamble to the Act. In view of the conclusion to which I have come about the meaning of property which is an ‘instrumentality’, it is unnecessary for me to go into these other arguments in any detail. I would only comment that insofar as a rational policy basis is concerned, the NDPP puts up a case that drastic measures such as these are necessary and justified to prevent the carnage on South African roads which is one of the results of driving under the influence of intoxicating liquor. This is a laudable motive. But it does not mean that that is what the Act intends. If Parliament intended that the provisions of Chapter 6 were to apply to all cases of drunken driving or driving with an excessive alcohol in the blood or breath, I believe that it would have said so specifically, either in the Act or in the National Road Traffic Act, and it would have legislated for safeguards, exceptions and other measures to make sure that the deprivation of property for this purpose was constitutionally acceptable. That it did not do so is in my opinion a further indication that that was not the intention of the Act.

[10] When the matter was argued I indicated that I would call for further argument if I considered it necessary. This has not been necessary. The considerations raised in this judgment were canvassed at the hearing.

[11] The applications are dismissed.

RJW JONES

Judge of the High Court

10 May 2005