National Director of Public Prosecutions v Theron and Others

• Jurisdiction: South Africa

National Director of Public Prosecutions v Theron and Others
2019 (2) SACR 32 (WCC)

2019 (2) SACR p32

Citation	2019 (2) SACR 32 (WCC)
Case No	3214/2017
Court	Western Cape Division, Cape Town
Judge	Binns-Ward J
Heard	October 30, 2018
Judgment	November 8, 2018
Counsel	M Kagee for the applicant.; C Webster SC (with H Schölzel) for the respondents.

Flynote : Sleutelwoorde

Prevention of crime G — Forfeiture order — Prevention of Organised Crime Act 121 of 1998 — Immovable property subject to mortgage — Preservation order simpliciter in respect of immovable property resulting in preservation of property subject to its encumbrances — In circumstances no need for application in terms of s 52 to protect interest of holder of H mortgage.

Search and seizure — Unlawful search — Effect of order of invalidity of provisions of Drugs and Drug Trafficking Act 140 of 1992 by Constitutional Court — Order prospective and not applicable to person opposing forfeiture application in terms of s 48 of Prevention of Organised Crime Act 121 of 1998 I where search carried out before declaration of invalidity.

Headnote : Kopnota

The present application was brought by the National Director of Public Prosecutions (the NDPP) for the forfeiture of certain immovable property to the state in terms of s 48 of the Prevention of Organised Crime Act 121 of 1998 (POCA) on the grounds that it was either the instrumentality of an J offence, or the proceeds of unlawful activities.

2019 (2) SACR p33

The application was opposed by the first to third respondents who, seemingly A relying on s 52 of POCA, sought an order excluding their interests as trustees of a trust that held a mortgage over the property which acted as security for a loan of R1 million to the first respondent.

Held, that the trust's interest in the immovable property as security for the redemption of any claim it might have against the registered owner was not property that was subject to the preservation order and was therefore B excluded from susceptibility to forfeiture in the NDPP's application. On a proper reading of POCA, and consistent with the ordinary incidence of the common law of property, a preservation order simpliciter in respect of immovable property resulted in the preservation of the property subject to its encumbrances, if any. In the circumstances, a need for the trustees to protect their interest in the immovable property, by way of an application in terms of s 52, did not arise on the facts. (See [16].) C

In a further argument, the respondents contended that the evidence found in the search-and-seizure operation at the first respondent's property had to be excluded from consideration because it had been obtained unlawfully, based on the decision of the Constitutional Court in Minister of Police and Others v Kunjana 2016 (2) SACR 473 (CC) (2016 (9) BCLR 1237; [2016] ZACC 21). [*] The judgment in that matter had been handed down nearly a D year after the search at the first respondent's home.

Held, that the Constitutional Court had restricted its order of invalidity of the relevant provisions of the Drugs and Drug Trafficking Act 140 of 1992 to operate only prospectively. The court's remarks, that it was still open to the respondent in that case to challenge the admissibility of the search and seizure at her subsequent criminal trial, were not applicable to the present E proceedings which were civil in nature. (See [21] – [22].)

Held, further, that it had to be accepted that the warrantless search-and-seizure operation conducted at the first respondent's premises was permitted at the time under the authority of an effective statutory provision. There was nothing to suggest that the information provided to the police did not afford them reasonable grounds to suspect that drug-related offences were being F committed at the premises. The argument, that the evidence obtained in the operation should be excluded, could accordingly not prevail. (See [24].) The court granted the application and issued an appropriate order.

Cases cited

Administrator, Transvaal and Others v Theletsane and Others 1991 (2) SA 192 (A) ([1990] ZASCA 156): compared G

Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another 2011 (1) SA 8 (SCA) ([2011] 1 All SA 1; [2010] ZASCA 66): dictum in para [19] applied

Da Mata v Otto, NO 1972 (3) SA 858 (A): compared

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance H 2002 (4) SA 768 (CC) (2002 (7) BCLR 702; [2002] ZACC 5): dictum in para [100] applied

Mathewson and Another v Van Niekerk and Others [2012] ZASCA 12: compared

Mazibuko and Another v National Director of Public Prosecutions 2009 (2) SACR 368 (SCA) (2009 (6) SA 479; [2009] ZASCA 52): referred to I

2019 (2) SACR p34

Minister of Justice and Constitutional Development and Others v Prince and Others A 2019 (1) SACR 14 (CC) (2018 (6) SA 393; 2018 (10) BCLR 1220; [2018] ZACC 30): referred to

Minister of Police and Others v Kunjana 2016 (2) SACR 473 (CC) (2016 (9) BCLR 1237; [2016] ZACC 21): distinguished

National Director of Public Prosecutions and Another v Mohamed NO and Others B 2002 (2) SACR 196 (CC) (2002 (4) SA 843; 2002 (9) BCLR 970; [2002] ZACC 9): referred to

National Director of Public Prosecutions v Parker 2006 (1) SACR 284 (SCA) (2006 (3) SA 198; [2006] 1 All SA 317): applied

National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another; C National Director of Public Prosecutions v Seevnarayan 2004 (2) SACR 208 (SCA) (2004 (8) BCLR 844; [2004] 2 All SA 491; [2004] ZASCA 37): considered

National Director of Public Prosecutions v Salie and Another 2015 (1) SACR 121 (WCC) ([2014] 2 All SA 688; [2014] ZAWCHC 40): referred to

National Director of Public Prosecutions v Van der Merwe and Another D 2011 (2) SACR 188 (WCC) ([2011] 3 All SA 635; [2011] ZAWCHC 8): dictum in para [22] applied

National Scrap Metal (Cape Town) (Pty) Ltd v Murray & Roberts Ltd and Others 2012 (5) SA 300 (SCA) ([2012] ZASCA 47): compared

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) E ([1984] 2 All SA 366; [1984] ZASCA 51): dictum at 634E – 635C applied

Prince v Minister of Justice and Others 2017 (4) SA 299 (WCC) ([2017] 2 All SA 864; [2017] ZAWCHC 30): referred to

Prophet v National Director of Public Prosecutions [2006] 1 All SA 212 (SCA) ([2005] ZASCA 94): referred to

Prophet v National Director of Public Prosecutions F 2006 (2) SACR 525 (CC) (2007 (6) SA 169; 2007 (2) BCLR 140; [2006] ZACC 17): dictum in para [56] applied

Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T): compared.

Legislation cited

Statutes

The G Drugs and Drug Trafficking Act 140 of 1992, s 11(1): see Juta's Statutes of South Africa 2017/18 vol 1 at 2-391

The Prevention of Organised Crime Act 121 of 1998, ss 48 and 52: see Juta's Statutes of South Africa 2017/18 vol 1 at 2-501 – 2-502.

Case Information

M Kagee H for the applicant.

C Webster SC (with H Schölzel) for the respondents.

An application for a forfeiture order in terms of s 48 of the Prevention of Organised Crime Act 121 of 1998.

Order I

1.

The following property, which is currently the subject-matter of a preservation-of-property order granted by this court on 23 February 2017, is declared forfeit to the state in terms of s 50(1) of the J Prevention of Organised Crime Act 121 of 1998 (the Act):

2019 (2) SACR p35

1.1

Erf [. . .], [. . .] Crescent, Sonstraal Heights, Durbanville, A Western Cape (the immovable property); and

1.2

the cash amount of R134 090

(collectively referred to as 'the property').

2.

The registrar of this court is directed to publish notice of this order in the Government Gazette as soon as practicable after the order is made, as required in terms of s 50(5) of the Act. B

3.

Upon the disposal of the immovable property as contemplated by s 57(1)(c) of the Act, the curator bonis appointed in terms of the aforementioned preservation-of-property order shall, after settling any claim to any portion thereof that may be duly established by the mortgagees, being the trustees for the time being of the C ET 15 Familietrust (IT 1689/2001), deposit the proceeds of the disposal, net of his fees and expenses, into the Criminal Asset Recovery Account established under s 63 of the Act, being No [. . .] held at the South African Reserve Bank.

4.

It is directed that as soon as this order takes effect, as provided for D in terms of s 50(6) of the Act, read with s 54(1) thereof, that is, after 45 calendar days of the Government Gazette publication referred to in para 2 hereof, the responsible finance officer of the South African Police Service currently in control of the South African Police Service (the SAPS) bank account No [. . .] at Absa Bank Ltd, where the cash subject of para 1.2 of this order is held, is authorised and E directed, after confirming with the curator bonis that the fees and expenses referred to in para 5 below have been paid or provided for, to cause the said property (or the balance thereof remaining after the payment of the curator's fees and expenses) to be paid into the banking account of the Criminal Asset Recovery Account as mentioned above. F

5.

As adumbrated in paras 3 and 4 above, an order is made in terms of s 42(2)(a) of the Act that the fees and expenses of the curator bonis shall be paid from the forfeited property.

6.

The curator bonis shall, as soon as possible, but not later than G within a period of 90 days of this order coming into effect, file a report with the applicant and the Master of the High...