Moore and Others v National Director of Public Prosecutions

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mamosebo J
• Judgment Date: 28 December 2021
• Citation: 2022 JDR 0336 (NCK)
• Court: Northern Cape Division
• Hearing Date: 21 October 2021
• Docket Number: 628/2020

Mamosebo J:

[1]

This is an application for leave to appeal to the Supreme Court of Appeal (SCA), alternatively, the Full Bench of the Northern Cape Division, against the whole of my judgment and orders granted on 30 July 2021 in terms of s 50(1)(b) of the Prevention of Organised Crime Act [1] (POCA), in terms of which two immovable properties, namely, Erf [....] Barkley West, also known as 14 S[....] Street and Erf [....] Barkley West, also known as 16 S[....] Street, Barkley West (the properties), were declared forfeit to the State. The application is opposed by the Director of Public Prosecutions, Northern Cape.

[2]

The applicants filed the Notice of Application for Leave to Appeal with the Registrar of this Court on 23 August 2021. Whereas it is settled that the grounds of appeal must be clearly outlined and succinct, the applicants' grounds of appeal were presented in a form of argument. This is impermissible. See Songono v Minister of Law and order [2] .

[3]

The applicants essentially rely on the following grounds of appeal. They contend that the Court erred:

3.1

In its finding that the statement of Mr Michael Bareng Raadt should be admitted as evidence;

3.2

In its finding that the disputes of fact raised by them are not genuine;

3.3

In finding that Mrs Moore had no right in selling the A[....] property without the involvement of the executrix; and

3.4

In not having due regard to the approach regarding the interpretation of contracts and documents.

[4]

Applications for leave to appeal, such as the present, are governed by section 17(1) of the Superior Courts Act 10 of 2013, which provides that an applicant must demonstrate to the Court that there are reasonable prospects that the appeal would succeed. Our courts have already interpreted the word "would", found in section 17(1)(a)(i) of the Act, as indicative of some form of certainty or realistic chance of

2022 JDR 0336 p3

Mamosebo J

success [3] . The applicants brought this application in terms of s 17(1)(a)(i) alleging reasonable prospects of success.

Statement of Raadt: Hearsay evidence

[5]

The main judgment has, in my view, sufficiently disposed of the contention that Mr Raadt's statement obtained on 06 May 2016 does not constitute hearsay evidence. The statement is annexed to the NDPP's preservation application and contains the following averments which were admitted by Ms Moore or not seriously disputed:

5.1

Mr Raadt leased 24 A[....] Way, Royldene, Kimberley;

5.2

He laid criminal charges against Ms Moore with the Commercial Crime Unit;

5.3

Mr Raadt attended Toshiba offices, where he met Ms Moore who offered to sell the A[....] property to him for R4.7 million on 13 January 2014; upon his visit to the property he made a counter offer of R3.9 million which she accepted. They orally agreed on rent-to-buy terms and he paid a deposit of R20,000.00 before taking occupation of the property and continued to pay a monthly rental fee of R20,000.00;

5.4

On that same day, 13 January 2014, he paid a deposit of R20,000.00.

5.5

Mr Raadt suggested that Ms Moore consults an attorney to draw up a contract for them;

5.6

The contract was drawn by a Mr Rudolph Van Niekerk, her partner;

5.7

Ms Moore sold Mr Raadt R10,000.00 pre-paid electricity coupons;

5.8

All the amounts and dates of payment to Ms Moore's bank account are captured in para 8 of the affidavit. The amounts were confirmed by Mr Jacobus Smit, a Senior Financial Investigator attached to the Asset Forfeiture Unit and were conceded by Ms Moore.

5.9

Ms Moore used the cash paid by Mr Raadt to...