National Director of Public Prosecutions v Salie and Another

• Jurisdiction: South Africa
• Citation: 2015 (1) SACR 121 (WCC)

National Director of Public Prosecutions v Salie and Another
2015 (1) SACR 121 (WCC)

2015 (1) SACR p121

Citation	2015 (1) SACR 121 (WCC)
Case No	384/2012
Court	Western Cape Division, Cape Town
Judge	Breitenbach AJ
Heard	March 17, 2014; March 18, 2014
Judgment	March 26, 2014
Counsel	M Kagee (attorney) for the applicant.; Anèl du Toit for the respondents.

Flynote : Sleutelwoorde

Prevention of crime — Forfeiture order — Application for in terms of s 48 of Prevention of Organised Crime Act 121 of 1998 (POCA) — Keeping brothel — Proceeds of unlawful activities for purposes of forfeiture order not necessarily direct proceeds but also covered property that owner was able to retain through proceeds from brothel. C

Prevention of crime — Forfeiture order — Application for in terms of s 48 of Prevention of Organised Crime Act 121 of 1998 (POCA) — Property to be forfeited — Whether proportionality required between offences and property to be forfeited — Proportionality indeed requirement. D

Prevention of crime — Forfeiture order — Application for in terms of s 48 of Prevention of Organised Crime Act 121 of 1998 (POCA) — Property to be forfeited — Application of proportionality test for proceeds derived from keeping brothel — Value of respondents' property less than brothel income and brothel income significant percentage (58%) of value of property — Brothels in questions not major public nuisance — Relatively E close connection between property and commission of offences and forfeiture would not be arbitrary deprivation of property — Forfeiture order granted.

Headnote : Kopnota

The applicant applied in terms of ss 48(1), 50(1)(a) and (b) and 53(1)(a) of the F Prevention of Organised Crime Act 121 of 1998 (POCA) for an order declaring forfeit to the state certain property owned by the first and second respondents. The first and second respondents were mother and daughter. The property in question consisted of two immovable properties owned by the first respondent, one immovable property owned by the second respondent, and a motor vehicle owned by the first respondent. By the time that the matter was heard it was common cause that there was no money in G any of the bank accounts in respect of which the applicant also initially sought an order of forfeiture and these prayers were abandoned. It was contended by the applicant that the respondents were running brothels at three venues, one of which was at one of the properties owned by the first respondent and in respect of which a forfeiture order was sought, and the other two were properties that were rented from their owners. The evidence H relied on by the applicant derived from raids conducted at the three venues which operated ostensibly as massage parlours. From the respondents' own statements taken at about the time of the raids it appeared that pelvic massages and sexual intercourse were offered for reward. It was accordingly contended by the applicant that the respondents had committed the offences created by s 2 of the Sexual Offences Act 23 of 1957 (keeping a I brothel) and s 20(1)(a) of the Sexual Offences Act (living off the proceeds of prostitution). The applicant alleged that the properties in respect of which orders were sought were the proceeds of the respondents' unlawful activities and therefore liable to forfeiture in terms of s 48 of POCA. The respondents' defence was that they were running legitimate massage parlours at the three premises and did not know whether any of the masseuses had sexual intercourse with their clients for money, and, if they J

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A did that, it was their private business and had nothing to do with them. The court held on the evidence that the respondents were fully aware of what was happening at the respective premises and there was no evidence that either of them had any significant other income from legitimate sources with which to service the loans they had taken to acquire the three immovable properties and the motor vehicle, and consequently the money B they used to make the necessary repayments emanated from the three brothel businesses. (Paragraph [98] at 147d.) The first respondent contended that forfeiture of any of the properties would be disproportionate and would infringe the right not to be arbitrarily dispossessed of property in s 25(1) of the Constitution. The court accordingly proceeded to examine whether proportionality was a requirement not only for instrumentality in relation to an offence but also for the proceeds of unlawful activities.

C Held, that the definition of 'proceeds of unlawful activities' in POCA made it clear that the connection between the proceeds and the unlawful activities did not need to be direct. The proceeds included, for instance, benefits which someone could legitimately have acquired, but retained by or as a result of his or her offences. (Paragraph [102] at 147j–148a.)

D Held, further, that the three properties in question and the motor vehicle were the proceeds of unlawful activities as defined in POCA because they were assets which the respondents were able to retain by using the money which they made in connection with or as a result of the operation of the three brothels and the consequent contraventions of ss 2 and 20(1)(a) of the Sexual Offences Act. (Paragraph [106] at 148g–h.)

E Held, further, that the purposes of ch 6 of POCA included, inter alia, removing the incentives to crime which related not to the instrumentalities of the offences but to the proceeds of unlawful activities. (Paragraphs [113]–[114] at 150a–d.)

Held, further, that there were equivalences between s 18(1) of POCA (which was located in ch 5) and s 50(1)(b) of POCA (which was located in ch 6) which, F together, supported the proposition that proportionality was a requirement of the forfeiture to the state of proceeds, not just instrumentalities. The court concluded that proportionality was indeed a requirement for the forfeiture to the state of the proceeds of unlawful activity under POCA. (Paragraph [135] at 155b.)

Held, further, as regards the question whether the forfeiture of the properties G would be justified on the proportionality test, that the offences of keeping a brothel and knowingly living on the proceeds of prostitution were serious offences but were less serious than many other offences. (Paragraph [144] at 157a.)

Held, further, that it had to be accepted that prostitution in itself was degrading H to women but there was no evidence showing that any of the brothels was a frequent and persistent cause of public nuisance; was conducive to violent abuse of prostitutes by customers and pimps; was associated with and encouraged the international trafficking in women; that they led to child prostitution; that they carried an intensified risk of the spread of sexually transmitted diseases, especially HIV/Aids; that they went hand in hand with high degrees of drug abuse; or that they had close connections with other I crimes such as assault, rape and even murder. On the contrary, the fact that the brothels were able to operate for several years without being raided and shut down suggested that, in keeping with their being established, tidy and well-run places, they were not a major public nuisance. Although none of the property derived directly from the commission of the offences, all of it comprised assets which the respondents were able to retain, using money J which they had made from the commission of the offences. There was

2015 (1) SACR p123

therefore a relatively close connection between the property and the A commission of the offences. (Paragraphs [145]–[150] at 157f–158h.)

Held, further, that the total value of the respondents' interest in the property was less than the proven brothel income and the proven total income was a significant percentage, namely 58%, of the total value of the property and, as a result, the present case was not one where a forfeiture to the state of the whole property would be disproportionate when viewed in monetary terms. B (Paragraph [165] at 161j–162a.)

Held, further, that, when all of the considerations were weighed together, even though the commission of the offences in the present matter was not accompanied by any aggravating factors, and even though there was a range of notable mitigating factors, the forfeiture to the state of all the property was justified. There was a relatively close connection between the property C and the commission of the offences and the case at hand was therefore not an exceptional one in which an entire forfeiture, as opposed to a partial forfeiture or no forfeiture, would constitute an arbitrary deprivation of property in contravention of s 25(1) of the Constitution. (Paragraphs [167] at 162e – f and [168] at 162h–i.) The orders were accordingly granted. D

Cases cited

Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another 2011 (1) SA 8 (SCA): referred to

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) ([2006] ZASCA 54): E dicta in paras [55] – [56] applied

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 2002 (4) SA 768 (CC) (2002 (7) BCLR 702; [2002] ZACC 5): referred to

Lipschitz NO v UDC Bank Ltd 1979 (1) SA 789 (A): referred to F

Mazibuko and Another v National Director of Public Prosecutions 2009 (2) SACR 368 (SCA) (2009 (6) SA 479): referred to

Mohunram and Another v National Director of Public Prosecutions and Another (Law Review Project as Amicus Curiae) 2007 (2) SACR 145 (CC) (2007 (4) SA 222; 2007 (6) BCLR 575; [2007] ZACC 4): dictum in para [121] applied G

National Director of Public Prosecutions and Another v Mohamed NO and Others 2002 (2) SACR 196 (CC) (2002 (4)...