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

• Jurisdiction: South Africa
• Citation: 2018 (2) SACR 513 (WCC)

National Director of Public Prosecutions v Five Star Import & Export (Pty) Ltd
2018 (2) SACR 513 (WCC)

2018 (2) SACR p513

Citation	2018 (2) SACR 513 (WCC)
Case No	17837/17
Court	Western Cape Division, Cape Town
Judge	Le Grange J
Heard	August 30, 2018
Judgment	August 30, 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).

Flynote : Sleutelwoorde

Search and seizure — Seizure — Return in terms of s 31(1)(a) of Criminal Procedure Act 51 of 1977 of article to owner — Proof of requirements of section — Two-stage inquiry — In casu, large sum of local currency seized in highly suspicious circumstances at airport — Applicant's C explanation preposterous and police having reasonable grounds for believing intended for use in commission of offence — Money forfeited to state.

Headnote : Kopnota

On 21 October 2016, a certain Mr Aboo travelled on a flight from Durban to Cape Town and was stopped in the domestic-arrivals hall in Cape Town by D two members of the South African Police Service (SAPS) conducting random stop-and-search inspections. They found R6 175 150 in various denominations in his suitcases. They also came upon his passport and a travel itinerary indicating that he was due to travel to Dubai within a few hours of his arrival. According to the police, Aboo informed them that the money belonged to his boss and that he needed to deliver it to a person in Cape Town. He refused to disclose the identity of either his boss or the E intended recipient. He also failed to inform the police that he was on his way to Dubai or showed any urgency in getting onto the flight. The police formed the view that he was attempting to remove the cash from the country in contravention of Exchange Control Regulations under the Currency and Exchanges Act 9 of 1933 which criminalised the removal from the country of local currency in excess of R25 000. Aboo missed the flight to Dubai and was released without charge. F

After almost a year no offence had been shown to have been committed and the Director of Public Prosecutions decided not to institute any prosecution. SAPS, however, refused to return the money to the applicant (Five Star) which had in the meantime laid claim to it. Its sole director alleged that he had asked Aboo to deliver an amount of R6 000 960 to one Mr Bassa in G Cape Town, being the receipt of money for the sale of goods that it had imported into South Africa. Aboo could later not be traced by the police.

Five Star instituted an application for the return of the money and the Asset Forfeiture Unit of the National Director of Public Prosecutions (the NDPP) instituted an application for leave to intervene and forfeiture of the money.

The NDPP argued that there had been a significant increase in incidents of H transnational crimes, including the smuggling of vast amounts of cash through the international airports of South Africa, and that in most of those instances the organised-crime syndicates would employ couriers to transport the criminal proceeds out of or into the country. According to the NDPP, Aboo had travelled the route and to a destination that was known for terror-financing, money-laundering and for black-market exchange systems I where cash moneys were laundered. It argued that the peculiar circumstances of his travel plans, and particularly the short time between the flights to and from Cape Town, indicated the criminal nature of the activities. The NDPP also produced evidence that Five Star, although registered with Sars, had not rendered any income-tax or VAT returns. Neither was Aboo registered as a taxpayer and could accordingly not have J

2018 (2) SACR p514

paid A for his flight, and the 16 other international flights overseas that he had undertaken in that year, other than from the proceeds of criminal activity.

Held, that on the objective facts, the reasonable belief that Aboo was attempting to remove cash from the country in contravention of the Exchange Control Regulations could hardly be faulted. Moreover, Five Star had elected not to oppose the preservation order, which could only mean it had accepted that B the police must have established reasonable grounds that an offence had been committed at the time the cash was seized. In the circumstances, the challenge that the seizure of the cash was executed in an unlawful manner was without merit and had to be dismissed. (See [38] and [40 – 41].)

Held, further, that s 31(1)(a) of the Criminal Procedure Act 51 of 1977 called for a two-stage inquiry into the fate of an article seized by the police. In the first C inquiry the onus was on the applicant seeking the return of its goods to show on a balance of probabilities that no criminal proceedings had been instituted and that there was no reasonable likelihood of such proceedings in the foreseeable future. Five Star had succeeded in proving that this was a case where no criminal proceedings were instituted within the meaning of the section. (See [47] – [49].)

Held, D further, that in the second inquiry the onus was on the police to show that the applicant could not lawfully possess the money. Here SAPS had discharged its onus on a balance of probabilities, the explanation offered by Five Star bordering on the preposterous. (See [50] and [56].) The main application was dismissed with costs and the currency was declared forfeited to the state.

Cases cited

Dookie E v Minister of Law and Order and Others 1991 (2) SACR 153 (D): referred to

First National Bank of SA Ltd v Perry NO and Others [2001] 3 All SA 331 (SCA) ([2001] ZASCA 37): referred to

Mnyungula F v Minister of Safety and Security and Others 2004 (1) SACR 219 (TkH): referred to

Ndabeni v Minister of Law and Order and Another 1984 (3) SA 500 (D): compared

Ntoyakhe v Minister of Safety and Security and Others 1999 (2) SACR 349 (E): dictum at 355h – 356a applied

Van G der Merwe and Another v Taylor NO and Others 2008 (1) SA 1 (CC) (2007 (11) BCLR 1167; [2007] ZACC 16): discussed.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 20 and 31(1)(a): see H Juta's Statutes of South Africa 2017/18 vol 1 at 2-274

The Currency and Exchanges Act 9 of 1933: see Juta's Statutes of South Africa 2017/18 vol 2 at 1-5

The Prevention of Organised Crime Act 121 of 1998, s 38(1): see Juta's Statutes of South Africa 2017/18 vol 1 at 2-499.

Case Information

Adv I 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 J counter-application).

2018 (2) SACR p515

An application for the return of moneys seized by the South African A Police Service; and counter-application by the National Director of Public Prosecutions for leave to intervene and forfeiture of said moneys.

Order

1.

The main application is dismissed with costs. B

2.

The counter-application succeeds with costs and the cash amount of R6 175 150 is declared forfeited to the state.

2.1

The registrar of this court is directed in terms of s 50(5) of the Prevention of Organised Crime Act 121 of 1998 (POCA) to publish a notice of this order in the Government Gazette as soon as reasonably possible. C

2.2

In terms of s 50(6) of POCA read with s 54(1), Lt Col Hendrik Matheus of the South African Police Service (SAPS), under whom the property is currently held, must deposit the moneys into the SAPS bank account No 4054522787 at Absa, and is further directed to cause the cash to be paid into the D bank account of the Criminal Asset Recovery Account, No 80303056, as established under s 63 of POCA at the Reserve Bank.

Judgment

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

2018 (2) SACR p516

Le Grange J

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...