Petersen v Minister of Police and Another

• Jurisdiction: South Africa
• Citation: 2022 (1) SACR 333 (WCC)

Petersen v Minister of Police and Another
2022 (1) SACR 333 (WCC)

2022 (1) SACR p333

Citation	2022 (1) SACR 333 (WCC)
Case No	12382/2019
Court	Western Cape Division, Cape Town
Judge	Bozalek J
Heard	February 3, 2021
Judgment	February 3, 2021
Counsel	Applicant in person.; M Titus for the respondent.

Flynote : Sleutelwoorde

Search and seizure — Seizure — Seizure in terms of s 31 of Criminal Procedure Act 51 of 1977 — Money held for long period by police — Asset Forfeiture Unit ought to have applied ex parte for preservation order expeditiously.

Headnote : Kopnota

The applicant applied for the release of an amount of R480 000 that had been seized by the Metro Police in 2019 at the home of a friend of his. The home had been the target of a raid by the police in search of firearms and drugs. Instead, they had found the cash. The owner informed the police that the applicant had asked her to keep it there as he intended to use it to buy a surprise birthday present for his wife. The money was kept in a small box in a safe and some of it was in a shoebox. The police subsequently searched the applicant's home, some 13 kilometres away, and found traces of drugs, plastic bags and a machine for sealing small packets. The money was seized in terms of s 31 of the Criminal Procedure Act 51 of 1977, but no prosecution was ever instituted. The National Director of Public Prosecutions (the NDPP) sought to intervene in the present proceedings to apply for a preservation-of-property order under s 38 of the Prevention of Organised Crime Act 121 of 1998, contending that the Asset Forfeiture Unit was investigating the case on the basis that the money was the proceeds of drug- dealing and money-laundering.

Held, the applicant's explanation for the money, namely that it arose from buying and selling motor vehicles, did not add up, as he had only sold two vehicles over a long period, and it was suspicious that he kept his money at another

2022 (1) SACR p334

person's house, rather than banking it. The court was satisfied that a preservation order should be granted, and the accused's application had to fail. (See [14] – [15] and [17].)

The court remarked that, in truth, what had happened was that the police had held the money almost as an agent for the NDPP, awaiting the preservation application. That may well be lawful if that action continued for a short while, but the police did not have the authority to hold someone's property indefinitely, knowing that there would be no criminal proceedings, whilst they waited for the Asset Forfeiture Unit to gear itself up to bring a forfeiture application. These matters had to be done much more expeditiously. There were redeeming features in the present matter, in that the preservation application was launched three months after the raid, but had taken so long to reach the court because it had not been done on an ex parte basis. The Asset Forfeiture Unit should have been before the court within months of the raid, asking for a preservation order, on an ex parte basis if need be. (See [17] – [18].)

Cases cited

National Director of Public Prosecutions v Five Star Import & Export (Pty) Ltd2018 (2) SACR 513 (WCC): followed.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 31: see Juta's Statutes of South Africa 2020/21 vol 1 at 2-279

The Prevention of Organised Crime Act 121 of 1998, s 38: see Juta's Statutes of South Africa 2020/21 vol 1 at 2-515 – 2-516.

Case Information

Applicant in person.

M Titus for the respondent.

Application for an order to return a large amount of cash to the applicant which had been seized during a police raid.

Order

1.

Mr Petersen's application for the return of the moneys to him is dismissed, but there will be no order as to costs.

2.

The preservation order against those moneys and against the R6000 is granted in the form of the draft order presented by counsel for the National Director of Public Prosecutions.

Judgment

Bozalek J:

[1] Two interrelated applications were...