Prophet v National Director of Public Prosecutions

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 29 September 2006
• Citation: 2007 (6) SA 169 (CC)
• Docket Number: CCT56/2005
• Counsel: W A Fischer for the applicant W H Trengove SC (with him A M Breitenbach and A Erasmus) for the respondent
• Court: Constitutional Court

Nkabinde J:

Introduction C

[1] This case raises a number of questions concerning the interpretation and application of the provisions of the Prevention of Organised Crime Act, 1998 (POCA). [1] The case arises out of the alleged manufacture of methamphetamine, an undesirable dependence-producing drug, colloquially referred to as 'tik', in a 'mini-laboratory' on D residential premises. The Court is called upon to strike an appropriate balance between two constitutional principles. The one is that no one should be arbitrarily deprived of property. The other is that the State is under an obligation to protect members of the public from criminal depredations. E

[2] The applicant has applied for leave to appeal against the judgment of the Supreme Court of Appeal [2] in respect of which the order declaring his house forfeit to the State in terms of the POCA by the Cape High Court (High Court) [3] was confirmed.

[3] It is worth mentioning at the outset that the determination of this application has been complicated by various factors. First, it F is not clear precisely what relief the applicant seeks. The relief sought in the notice of motion is for special leave to appeal against the judgment and order of the Supreme Court of Appeal and for an order that the costs of this application be costs in the appeal. In the same notice of motion the applicant concludes with the following prayers for substantive relief: G

'1.

Declaring that the forfeiture of the appellant's property by the respondent was not constitutionally defensible and is therefore set aside.

2.

Declaring that the operation of the provisions of the POC Act in respect of the forfeiture of the appellant's property was not constitutionally justifiable. H

3.

Declaring that the whole of Ch 6, alternatively certain sections thereof, are not constitutionally valid.'

These last two prayers are not appropriate for an application for leave to appeal, as they raise new matters beyond the scope of the appeal. Ordinarily such matters can be raised only in an application for direct I

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access, a procedure which is only permissible in exceptional circumstances. This is a matter to which I will return later. A

[4] Secondly, the grounds of appeal advanced by the applicant shifted constantly. The shifting position adopted by the applicant not only made it difficult for this Court to adjudicate upon the application but also rendered the task of the respondent in responding to the applicant's case unnecessarily burdensome. Thirdly, B the applicant sought at a very late stage to lead extensive new evidence at the hearing in this Court. Fourthly, both criminal and civil proceedings have been brought against the applicant. The applicant sought to place reliance on aspects of the criminal proceedings to further his cause in the civil proceedings and contended C that his right to silence has been violated.

[5] Many of these difficulties arose from the manner in which the application for leave to appeal was prosecuted by the applicant. They could have been avoided had more care been taken during the prosecution of the applicant's case in the High Court, Supreme Court of Appeal and this Court. D

Facts

[6] The applicant is the owner of immovable property situated at 54 Balfour Street, Woodstock, Cape Town (the property) [4] which is the subject-matter of the litigation in these E proceedings. He was, together with Ms Nicola Daniels (Ms Daniels) and Mr Dominic Hiebner (Mr Hiebner), arrested and charged with having contravened ss 3 [5] and 5 [6] of

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the Drugs and Drug Trafficking Act (the Drugs Act) [7] for dealing in prohibited substances and the alleged A manufacturing of the scheduled substances, respectively.

[7] The circumstances that gave rise to the arrests and culminated in these proceedings are set out in the opposing affidavits lodged by the respondent and from which the following emerge. During December 2000 Detective Captain Johan Smit (Captain Smit), an B investigating officer in the South African Police Service (SAPS) and the narcotics detective designated by the South African Narcotics Bureau (SANAB) to monitor chemicals in the Western Cape, received information about the unlawful importation into South Africa of phenylacetic acid. This substance is listed in Part II of Schedule 1 to C the Drugs Act. The substance, it is stated, may be used to manufacture methamphetamine, an undesirable dependence-producing substance listed in Part III of Schedule 2 to the Drugs Act. On 30 January 2001 Captain Smit and his colleagues observed the applicant receiving 2 kg of phenylacetic acid from Mr Hiebner. The substance was taken to the property by the applicant. Further investigation established that D the applicant subsequently purchased 500 g of caustic soda and three litres of distilled water from the Litekem Pharmacy in Cape Town, and took them to the property.

[8] According to Superintendent Casper Hendrik Venter (Superintendent Venter), who is a narcotics detective and forensic E analyst with the Forensic Science Laboratory (FSL) attached to the SAPS, the diluted caustic soda is necessary in the final process of manufacturing methamphetamine.

[9] Captain Smit applied for and obtained a search warrant to search the F

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property. Upon arrival at the property captain Smit and his colleagues knocked at the door and demanded access. They forced open A the door and entered the house as there was no response. Captain Smit observed the applicant running from the old kitchen carrying a cardboard box. He heard the sound of a glass breaking at the back of the house. The property was searched by Captain Smit, assisted by Detective Sergeant Grimmbacher, Detective Captain Cockrill, other B members of SANAB, Superintendent Venter, and other members of the FSL.

[10] The police found, among other things:

(a)

five bottles of methylamine in one of the bedrooms;

(b)

a broken glass and a yellowish-brown fluid in the bowl of the toilet at the back of the house. The fluid, according to C Captain Smit, smelled strongly of chemicals;

(c)

an unopened container of phenylacetic acid delivered by Mr Hiebner to the applicant on 30 January 2001;

(d)

a handwritten document on the table in the 'opwaskamer' adjacent to the laboratory which, according to Superintendent Venter, detailed an alternative method to synthesise D methamphetamine;

(e)

loose documentation containing information about drugs and drug formulas, including a recipe for the extraction of 1-phenyl-2-propanone from a solution; E

(f)

a vacuum sealer and cooldrink straws routinely used to package methamphetamine and ephedrine for sale;

(g)

a flask containing a small amount of what was later established as chilled methylamine; and

(h)

an electronic scale used to measure quantities of chemicals.

While the search was in progress Ms Daniels removed a glass containing a liquid which had been stored in the freezer compartment of F the refrigerator and poured its contents down the drain of the kitchen sink.

[11] Superintendent Venter seized various chemical substances, laboratory equipment and documents recording chemical processes. [8] G He subsequently analysed the seized chemical substances and verified their identity. After analysing the sample of the yellowish-brown fluid which had been found in the bowl of the toilet, he found that the fluid contained phenylacetic acid and 1-phenyl-2-propanone. The 1-phenyl-2-propanone was, according to him, about to be purified by means of a process involving benzene and diluted potassium hydroxide. Potassium hydroxide was found in the H laboratory, as was the benzene. Superintendent Venter also analysed the small quantity of the liquid that remained in the glass container which had been stored in the freezer and found that it contained chilled methylamine. I

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[12] Superintendent Venter said that the arrival of the police at the property interrupted the unlawful manufacturing process of A methamphetamine. He explained that one of the ways in which methamphetamine is manufactured is by combining 1-phenyl-2-propanone with chilled methylamine. He concluded that it would have been possible to synthesise 400 g to 600 g of methamphetamine from the chemical substances found on the property. Superintendent Venter tendered the B exhibits and the results of his analysis for inspection and re-analysis by the applicant if he desired to do so. Based on his experience, Captain Smit estimated the street value of that amount of methamphetamine to be approximately R250 000. He said that methamphetamine sells for about R500 per gram. C

[13] Upon arrest, Mr Hiebner made a statement that he had previously ordered chemicals on behalf of the applicant. The applicant, so said Mr Hiebner, had told him to place an order for chemicals in the name of Mr Harris. The applicant represented to Mr Hiebner that he operated a leather-softening business and that Mr Harris was his partner in the business. An invoice attached to one of Captain Smit's D affidavits indicated that phenylacetic acid and methylamine had been ordered from B & M Scientific by Kevin Harris. Captain Smit established that the latter name was a false name.

High Court E

[14] Relying on these facts, the respondent initiated proceedings in the High Court in terms of s 38 [9] of the POCA for a preservation order in respect of the property. A preservation order was granted on 28 June 2001 and a curator bonis was appointed to assume control over the property. A forfeiture order in terms of ss 48 and 50 of the POCA was F subsequently sought. Section 48(1) provides:

'If a preservation of property order is in force the National Director may apply to a High Court for an order...