National Director of Public Prosecutions v Five Star Import & Export (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Le Grange J
• Judgment Date: 30 August 2018
• Citation: 2018 (2) SACR 513 (WCC)
• Docket Number: 17837/17
• Hearing Date: 30 August 2018
• Counsel: Adv Van Rooyen SC (with N Mbangeni) for the applicant, Five Star (respondent in counter-application). H Cronje (with U Gcilishe) for the first respondent, SAPS (main application). M Kagee (attorney) for the second respondent, the NDPP (applicant in counter-application).
• Court: Western Cape Division, Cape Town

Le Grange J: E

[1] On 21 October 2016 a person by the name of Nabeel Mohammed Aboo (Aboo) was travelling from Durban, KwaZulu-Natal, on Kulula flight M702 to Cape Town. He was scheduled to fly on the same date to Hong Kong via Dubai on an Emirates flight. At the domestic-arrivals hall in Cape Town, two officers of the SAPS Border Unit were in the process of conducting random stop-and-search inspections. F

[2] At the time Aboo was carrying three suitcases and was stopped by the Border Unit. According to the police, Aboo confirmed that the suitcases belonged to him and that he packed the contents thereof. In the suitcases a large amount of cash was found.

[3] The moneys were counted at the airport in the customs office in the G presence of Aboo and his attorney who arrived at the customs offices while the counting process was under way.

[4] The police found an amount of R6 175 150 in cash in dominations of R50, R100 and R200, inserted into 82 unmarked size-A4 white and brown envelopes. Each envelope contained between R50 000 and H R60 000 in cash.

[5] Arising out of these events, the applicant (Five Star) launched an application on 3 October 2017 for the return of the moneys from SAPS as it claimed ownership thereof. SAPS opposed the relief sought. As a result I of Five Star's application, the Asset Forfeiture Unit of the National Director of Public Prosecutions (the NDPP) applied in November 2017 for leave to intervene as a party to the proceedings. The NDPP also applied in a counter-application for an order in terms of s 38(1) of the Prevention of Organised Crime Act 121 of 1998 (POCA) for a preservation order of the money that was seized by the police, and to oppose J

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Five A Star's application (the main application) for the return of the property.

[6] In terms of s 38(2) of POCA, a High Court is obliged to make an order as contemplated in s 38(1) if there are reasonable grounds to believe that the specified property is either the proceeds, and/or alternatively, an B instrumentality, of an offence specified in sch 1 to POCA, or both. Five Star was cited by the NDPP as a party to the counter-application. According to the NDPP, the purpose of seeking the preservation order was to ensure that the moneys that were seized would be preserved pending the outcome of an application for a forfeiture order in terms of s 48 of POCA. Five Star did not oppose the preservation order that was sought by C the NDPP but did oppose the forfeiture order, as contemplated in s 48 read with s 50(1) of POCA.

[7] In the counter-claim, Five Star remains adamant that it acquired the moneys by ordinary trade and lawful means and is the owner thereof.

[8] D Five Star was incorporated on 23 July 2013 as a private company. Its sole director is Petros Sibusiso Khanyile (Khanyile). The basis upon which Five Star claims it is the legitimate owner of the moneys was set out in the founding affidavit, as deposed to by Khanyile.

[9] The versions advanced by Khanyile, on behalf of Five Star, can be E summarised as follows: since January 2016 Five Star imported agricultural tools and other hardware from various suppliers in China; all custom and excise duty on these goods was paid and Five Star had currently no liability to Sars; in turn, Five Star sold the imported goods to clients in South Africa, who paid in cash; Five Star as a result had a F large amount of cash on hand; the cash enables Five Star to conclude business deals expeditiously without delay; this format of doing business suits Five Star as bank transfers where substantial sums are involved often cause delays; the cash was utilised as soon as possible to generate further profit; on advice from other businessmen, it was decided by Khanyile that Five Star would purchase prepaid cellular phone airtime G and resell it within a short period of time.; this method of business would allow Five Star to 'spin the cash quickly' and to generate quick profit and additional cash flow; due to Five Star's ability to pay in cash, ERZ Telecom CC (ERZ) was prepared to sell large quantities of prepaid airtime to it at a price of R6 000 960.

[10] H Khanyile further recorded that on 21 October 2016 he liaised with Zubair Ghood (Ghood), a representative of ERZ; Ghood required a meeting with a representative of Five Star for purposes of depositing the funds in the bank account of ERZ and for the release of the prepaid cards from the MTN depot in Canal Walk; Junaid Bassa, an acquaintance of I Khanyile, was Five Star's representative in Cape Town; and a meeting was scheduled with one Ridwaan of ERZ, to finalise the transaction after the arrival of Aboo in Cape Town.

[11] Khanyile described his relationship with Aboo and the reason for his (Aboo's) possession of the moneys as follows: they are friends and J former neighbours. He had known Aboo in excess of 10 years; Aboo lives

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in Durban and often travels to Dubai to visit his family; he was aware A that on 21 October 2016 Aboo would travel to Cape Town from where he would travel to Dubai later that day; and as a result of this information he requested Aboo to take the R6 000 960 in cash with him to Cape Town where he had to deliver it to Bassa.

[12] The meeting arrangements that needed to happen when Aboo B arrived in Cape Town were described by Khanyile as follows: he (Khanyile) had to contact Bassa the moment Aboo landed in Cape Town. Bassa would then meet with Aboo at the airport.

[13] The handling of the moneys was recorded as follows: according to C Khanyile he trusted Aboo and agreed to hand him the cash. Aboo signed a receipt on 21 October 2016, acknowledging receiving the cash. Khanyile also signed the receipt. It was also recorded that Aboo must hand the cash in the amount of R6 000 960 to Bassa.

[14] According to Khanyile, Aboo was detained by the police for a few D hours. The police apparently seized his cellular phone and denied him access to it. Bassa could not get hold of Aboo upon his arrival in Cape Town. On discovering that Aboo was arrested, the attorneys were instructed to assist Aboo.

[15] After the moneys were counted, Aboo was released. He left the E airport with his attorney. Aboo did not continue with his onward journey to Dubai.

[16] Khanyile further recorded that, despite after almost a year since the seizure of the moneys, the police had failed to establish that any offence has been committed, and demands the return of the moneys. F

[17] According to Khanyile, despite his detailed version of proof of ownership of the moneys, and the fact that the second respondent on 1 September 2017 decided that it would not institute any prosecution in connection with the matter at that stage, SAPS refused to return the moneys. G

[18] According to Khanyile, large sums of cash are regularly used to pay for supplies and are often transported from one city to another in business generally. It was further stated that the interests of justice can certainly not demand that, in each instance, such a customary transport of money for business purposes will give rise to reasonable grounds to H believe that the money is concerned in the commission or suspected commission of an offence.

[19] The police version of what transpired after Aboo was confronted at the airport is somewhat different to what Khanyile stated, and can be I summarised as follows. Aboo confirmed that all three suitcases belonged to him and that he packed them himself; he informed the police that the moneys belonged to his boss and that he needed to deliver it to a person in Cape Town; Aboo could not, or was unwilling to, provide any further identification or information as to the person(s) who gave him the moneys, or to whom he needed to deliver it. J

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[20] A Aboo also failed to inform them that he was on his way to Dubai and showed no urgency to get onto the flight which at that time was starting to board. The police accidentally came upon his passport with his travel itinerary. According to the police, they formed the view that Aboo attempted to remove the...