National Director of Public Prosecutions v Phillips and Others

• Jurisdiction: South Africa
• Citation: 2001 (2) SACR 542 (W)

National Director of Public Prosecutions v Phillips and Others
2001 (2) SACR 542 (W)

2001 (2) SACR p542

Citation	2001 (2) SACR 542 (W)
Court	Witwatersrand Local Division
Judge	Heher J
Heard	February 22, 2001; March 2, 2001
Judgment	July 31, 2001
Counsel	C Z Cohen SC and W Trengove SC (with them A Cockrell) for the applicant.; K J Kemp SC and M R Hellens SC (with them M Smithers) for the respondents.

Flynote : Sleutelwoorde B

Prevention of crime — Preservation of property order — When to be granted — Proof that respondent would hide or make away with assets not required — Prevention of Organised Crime Act 121 of 1998 s 26.

Prevention of crime — Preservation of property order — Amount of assets to be attached — Legislature had left issue of proportionality C to court in formulation of conditions and exceptions of order — Prevention of Organised Crime Act 121 of 1998 ss 25 and 26.

Prevention of crime — Preservation of property order — Standard of proof required — Application for a restraint order analagous to an application for an interim interdict and attachment D pendente lite: the prima facie case had to be proof of a reasonable prospect of obtaining both a conviction in respect of the charges levelled against the defendant and a subsequent confiscation under s 18(1) of Prevention of Organised Crime Act 121 of 1998.

Prevention of crime — Preservation of property order — Nature of proceedings — Proceedings not 'criminal proceedings' for purposes E of s 35(3) of Constitution Act 108 of 1996.

Prevention of crime — Preservation of property order — Extent of order — Phrase 'any criminal activity which the court finds to be sufficiently related' in s 18(1)(c) of Prevention of Organised Crime Act 121 of 1998 ordinarily had to have a fairly limited F range: usually the time period of related activity would be within or close to the period of the charge and possess some connection with it (other than simply being an offence of the same nature).

Prevention of crime — Preservation of property order — Assets subject to order — Primary concern of the Legislature not the title and because concealment was an evil which the Legislature sought to G neutralise, 'holding' had to be given a wide meaning — Prevention of Organised Crime Act 121 of 1998 s 14(1).

Prevention of crime — Preservation of property order — Extent of order — Whether indemnity should be attached to order — Such order could create a substantive remedy for damages which had no basis in H common law or statute law — Order not an 'ancillary order' referred to in s 26(8) of Prevention of Organised Crime Act 121 of 1998.

Prosecution — Legitimate expectation that accused would not be prosecuted — When legitimate expectation could arise — The representation underlying the expectation had to be clear, unambiguous I and devoid of relevant qualification; reasonable; it had to have been induced by the decision-maker and must have been competent for the decision-maker to make.

Sexual offences — Prostitution — Constitutionality of offence of prostitution — Section 20(1)(aA) of Sexual Offences Act 23 of 1957 criminalising J

2001 (2) SACR p543

only the recipient of the reward — Even if the distinction could be said to be discriminatory, it could not be said A that a legitimate government purpose might not reasonably be served by targeting the mercenary party to the deal.

Headnote : Kopnota

The applicant had been granted a preservation order in terms of s 26 of the Prevention of Organised Crime Act 121 of 1998 against the B 15 respondents authorising the attachment and ordering the surrender of certain assets. Pursuant to the order, the curator bonis attached vehicles, movables, bank accounts and immovable properties valued at more than R7 million and a further five properties which it had not been possible to value. On the return day the first respondent asked for the order to be discharged on a number of grounds. C

The applicant relied for confirmation of the rule on s 25(1) of the Act in that a prosecution had been instituted against the first respondent which was set to proceed in May 2001 and it was alleged that there were reasonable grounds for believing that a confiscation order under s 18 would be made against him following upon a conviction in the trial. D

It was contended on behalf of the respondents that the applicant had not attempted to show that the first respondent would hide or make away with his assets and that therefore the application had to fail.

Held, dismissing this objection, that the public policy behind the legislation demonstrated that the Legislature did not, as a jurisdictional prerequisite, require the Court to examine whether it was likely that a respondent would dispose of the property. E

It was contended on behalf of the respondents that it was a jurisdictional requirement of s 25(1) that there should be reasonable grounds for believing that a confiscation order would be made in a particular amount and that the Court had no power under s 26 to order a restraint which allowed the attachment of assets exceeding in value the amount of that order. F

Held, that the Legislature had chosen language in formulating ss 25 and 26 which suggested that a restraint order could relate to assets which, in value, need bear no relation to the amount which might ultimately be confiscated. It seemed clear that the Legislature had chosen to leave the aspect of proportionality as a matter which could be considered in the formulation of the conditions G and exceptions which could be specified in the order.

The first respondent was charged with the following offences: Count 1 - keeping a brothel in contravention of s 2 of the Sexual Offences Act 23 of 1957 which was punishable by imprisonment not exceeding three years with or without a fine or not exceeding R6000. Count 2 - procuring females for unlawful carnal intercourse in contravention of s 10(8) of the Sexual Offences Act (alternatively procuring females to become H common prostitutes in contravention of s 10(c) of the Sexual Offences Act), punishable by imprisonment not exceeding seven years. Count 3 - a contravention of s 12A of the Sexual Offences Act in that he allowed persons into his premises with the intent for them to commit unlawful intercourse or acts of indecency with females working there, punishable by a fine or imprisonment not exceeding five years. I Count 4 - living off the earnings of prostitution in contravention of s 20(1)(a) of the Sexual Offences Act. Counts 5, 6, 7 and 8 related to contraventions of the Aliens Control Act 96 of 1991 in that the accused employed illegal aliens in his brothel.

As to the standard of proof required in the application, the Court held that an application for a restraint order was analagous to an application for an J

2001 (2) SACR p544

interim interdict and attachment pendente lite: the prima facie case had to be proof of a A reasonable prospect of obtaining both a conviction in respect of the charges levelled against the defendant and a subsequent confiscation under s 18(1).

The case against the first respondent was that he was in effective control of all the other respondents. The applicant alleged that the first respondent controlled an upmarket brothel consisting of B various facilities such as lounges, bars, striptease bars and a massage parlour. During the course of a police operation in February 2000, 40 foreign women were found on the premises, most of whom were either employed illegally whilst in the country on temporary residence permits or had false or invalid identity or travel documentation. Many of the women were later convicted of offences under the Aliens Control Act. The applicant filed affidavits of various women who worked at the C brothel as prostitutes. A portion of their income went to the brothel. It appeared that the steps taken by the first respondent to confirm the women's right to be in South Africa or to be employed in South Africa was superficial.

In response, the first respondent placed emphasis on the fact that the relationship between the prostitutes in question and the brothel was an entirely voluntary one. The Court held however that this was D irrelevant and that there was sufficient prima facie evidence against the first respondent on all counts except the second count and its alternative.

The first respondent contended that he had a legitimate expectation that he would not be prosecuted for his activities as he had carried them on for 13 years; he had maintained exemplary hygiene standards; his activities had been allowed to continue without interference; the E same activities were widely carried in South Africa; and the decriminalisation of the offence was being considered.

Held, that for a claim of right based on a legitimate expectation the representation underlying the expectation had to be clear, unambiguous and devoid of relevant qualification; reasonable; it F had to have been induced by the decision-maker and must have been competent for the decision-maker to make. On this basis the first respondent's argument had to fail. A legitimate expectation did not give rise to a right of exemption from prosecution to all past offences committed in respect to offences involving prostitution at the brothel. Neither was it in the public interest to recognise such a defence.

In mounting a constitutional challenge to the provisions of the Prevention of Organised Crime Act, the Sexual Offences Act, and the G manner in which the application had been made, the Court held that the first respondent had adopted a blunderbuss approach and had failed to sufficiently identify the terms or features which were allegedly unconstitutional. It was impermissible to mount a constitutional attack in this way. Pleadings had to be lucid, logical and intelligible and...