National Director of Public Prosecutions In re: R6287 in cash(the property) seized by the South African Police Service (the SAPS) in Aliwal North on 7 November 2019 (508/2020) [2022] ZAECMKHC 45 (26 July 2022)

National Director of Public Prosecutions In re: R6287 in cash(the property) seized by the South African Police Service (the SAPS) in Aliwal North on 7 November 2019 (508/2020) [2022] ZAECMKHC 45 (26 July 2022)

The court found that the applicant failed to establish, on a balance of probabilities, a sufficiently close link between the seized cash and any criminal activity, specifically drug dealing. The evidence did not show that the property was proceeds of unlawful activities or an instrumentality of an offence as required by POCA. The absence of opposition by Mr Mokoena was not determinative, as there may be legitimate reasons for his non-appearance. The court emphasized that forfeiture under POCA must be constitutionally permissible and not based on mere suspicion or past alleged conduct. Since the cash was seized over a year after the alleged drug transactions and there was no direct...

Citation
[2022] ZAECMKHC 45
Parties
Applicant: National Director of Public Prosecutions
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
26 July 2022
Case Number
508/2020
Procedural Posture
Forfeiture Application / Application for Forfeiture Order by Default
Outcome
Application for forfeiture of the property is dismissed.
Judges
N G Beshe
Legal Topics
Prevention of Organised Crime Act, Forfeiture of Property, Proceeds of Unlawful Activities
Criminal Law Prevention of Organised Crime Act Forfeiture of Property Proceeds of Unlawful Activities

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Parties

National Director of Public Prosecutions

Applicant

Procedural Posture

Forfeiture Application / Application for Forfeiture Order by Default

Legal Issues

  1. 1 Whether the cash amount of R6,287.00 seized from Mr Mokoena constitutes proceeds of unlawful activities under POCA.
  2. 2 Whether there is a sufficiently close link between the seized property and any criminal activity to justify forfeiture.
  3. 3 Whether the absence of opposition by Mr Mokoena is relevant to the granting of the forfeiture order.

Ratio Decidendi

The court found that the applicant failed to establish, on a balance of probabilities, a sufficiently close link between the seized cash and any criminal activity, specifically drug dealing. The evidence did not show that the property was proceeds of unlawful activities or an instrumentality of an offence as required by POCA. The absence of opposition by Mr Mokoena was not determinative, as there may be legitimate reasons for his non-appearance. The court emphasized that forfeiture under POCA must be constitutionally permissible and not based on mere suspicion or past alleged conduct. Since the cash was seized over a year after the alleged drug transactions and there was no direct...

Court Disposition

Application for forfeiture of the property is dismissed.

Orders

  • The application for the forfeiture of the property being an amount of R6,287.00 in cash is dismissed.
  • The property described is to be returned to Mr Mokoena forthwith.