National Director of Public Prosecutions In Re Appeal (AR874/04) [2005] ZAKZHC 11; [2006] 1 All SA 304 (N); 2005 (2) SACR 610 (N) (25 August 2005)

National Director of Public Prosecutions In Re Appeal (AR874/04) [2005] ZAKZHC 11; [2006] 1 All SA 304 (N); 2005 (2) SACR 610 (N) (25 August 2005)

The court held that the R4,750.00 handed over to Inspector Naidu was not merely incidental to the commission of the offence but was directly related to the crime of corruption. Both the offer and the payment of the bribe constitute the essence of the offence under the relevant statutes. The money was used to entice the inspector not to perform his official duties, thereby facilitating the commission of the crime. The court found that the lower court erred in its interpretation by considering only the offer and not the actual payment. Applying the proportionality analysis and relevant case law, the court concluded that the money was indeed the instrumentality of the offence and should be...

Citation
[2005] ZAKZHC 11
Parties
Applicant: National Director of Public Prosecutions
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
25 August 2005
Case Number
AR874/04
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Forfeiture Application
Outcome
Appeal upheld. The judgment of the court a quo is set aside.
Judges
Tshabalala JP
Legal Topics
Forfeiture of Property, Instrumentality of Offence, Corruption, Prevention of Organised Crime Act, Preservation Order
Criminal Law Civil Procedure Forfeiture of Property Instrumentality of Offence Corruption Prevention of Organised Crime Act Preservation Order

Case Brief

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Parties

National Director of Public Prosecutions

Applicant

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Forfeiture Application

Legal Issues

  1. 1 Whether the sum of R4,750.00 is the instrumentality of the offence of corruption under the Prevention of Organised Crime Act.
  2. 2 Whether the forfeiture order should have been granted in respect of the money handed over as a bribe.

Ratio Decidendi

The court held that the R4,750.00 handed over to Inspector Naidu was not merely incidental to the commission of the offence but was directly related to the crime of corruption. Both the offer and the payment of the bribe constitute the essence of the offence under the relevant statutes. The money was used to entice the inspector not to perform his official duties, thereby facilitating the commission of the crime. The court found that the lower court erred in its interpretation by considering only the offer and not the actual payment. Applying the proportionality analysis and relevant case law, the court concluded that the money was indeed the instrumentality of the offence and should be...

Court Disposition

Appeal upheld. The judgment of the court a quo is set aside.

Orders

  • The property, R4,750.00 in cash, subject to the preservation of property order granted on 29 September 2003, is forfeited to the State in terms of Section 50(1) of the Prevention of Organised Crime Act.
  • The Registrar or State Attorney is directed to publish notice of this order in the Government Gazette as soon as practicable.