National Director of Public Prosecutions v Mohunram and Others

• Jurisdiction: South Africa
• Judge: Harms JA, Mthiyane JA, Conradie JA, Jafta JA and Maya AJA
• Judgment Date: 17 March 2006
• Citation: 2006 (1) SACR 554 (SCA)
• Docket Number: 173/05
• Hearing Date: 07 March 2006
• Counsel: M Govindasamy SC (with A Cockrell and A Laalje) for the appellant.G J Leppan for the respondents.
• Court: Supreme Court of Appeal

Harms JA:

[1] The Prevention of Organised Crime Act 121 of 1998 (to which I intend to refer as POCA) provides, inter alia, for forfeiture of property which, in civil proceedings, is found on a balance of probabilities to have been 'an instrumentality of an offence referred to in Schedule 1' (s 50(1)(a)). An F 'instrumentality of an offence' is defined to mean any property which 'is concerned in the commission' of an offence (s 1). Listed in the schedule is 'any offence under any legislation dealing with gambling, gaming or lotteries'. Casinos and gambling fall within the legislative competence of both national and provincial legislatures (Sch 4 of the Constitution of the Republic of South Africa, 1996). In KwaZulu-Natal G these matters are regulated by the KwaZulu-Natal Gambling Act 10 of 1996. Since it is common cause that the respondents have contravened the Gambling Act, the appellant, the National Director of Public Prosecutions, sought to have immovable property (a sectional- title unit in the town Vryheid, together with an undivided share in the H common property in accordance with the applicable participation quota) belonging to the second respondent, Shelgate Investments CC, declared forfeited. (The first respondent, Mr Mohunram, is the only member of Shelgate.) C N Patel J, in the Natal Provincial Division, dismissed the application with costs on the basis that the property had not been an 'instrumentality' of any offence under the Gambling Act. I He refused leave to appeal but this Court subsequently granted the necessary leave.

[2] POCA has been the subject of a number of leading judgments, and the forfeiture provisions, more particularly, have been considered by this Court in recent times. This judgment does not raise any novel issues of J

Harms JA

interpretation and is more concerned with the application of the Act to the particular facts of the case. There are A usually three main issues in a case such as this to decide and they are (a) whether the property concerned was an instrumentality; (b) whether any interests should be excluded from the forfeiture order; and (c) whether the forfeiture sought would be disproportionate. In the present circumstances, issue (b) will be referred to at the end of the judgment because it is not an issue between the parties to the appeal. B

[3] It is common cause that Mohunram used part of the property as a casino: he operated 57 gambling machines on the property in contravention of s 44 of the Gambling Act, which states that no person may operate a casino unless validly licensed. (The word C 'casino' is defined in s 1 as 'any premises upon which . . . gaming machines may be played'.) In terms of s 3(3)(a) of this Act, the owner of a building may not allow any other person to conduct any gambling activity therein or thereon unless that person has been duly licensed. Shelgate as owner did just that, having permitted Mohunram to conduct the casino. D

[4] It will immediately be apparent that, in both instances, use of premises is of the essence of the crimes as defined. Without use of premises, there are no crimes. The complications that arose in cases such as Cook, [1] Parker [2] or Prophet [3] do not arise in the present instance. It follows, in my view ineluctably, that E the particular...