Prophet v National Director of Public Prosecutions

• Jurisdiction: South Africa
• Judgment Date: 29 September 2006
• Citation: 2007 (6) SA 169 (CC)

Prophet v National Director of Public Prosecutions [*]
2007 (6) SA 169 (CC)

2007 (6) SA p169

Citation	2007 (6) SA 169 (CC)
Case No	CCT56/2005
Court	Constitutional Court
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
Heard	March 7, 2006; May 10, 2006
Judgment	September 29, 2006
Counsel	W A Fischer for the applicant; W H Trengove SC (with him A M Breitenbach and A Erasmus) for the respondent

Flynote : Sleutelwoorde B

Constitutional practice — Appeal — New evidence on appeal — Stringent test adopted for admission of new evidence on appeal — Rule 31 of Constitutional Court Rules permitting parties to adduce relevant material where common cause or C otherwise incontrovertible, or of official, scientific, technical or statistical nature and capable of easy verification — Section 22 of Supreme Court Act 59 of 1959 permitting tendering of new evidence in exceptional circumstances, where weighty, material and to be believed, and subject to reasonable explanation for late filing of evidence — Applicant in casu remiss in not adducing scientific evidence at trial — Respondent disputing veracity of D evidence — Further evidence sought to be adduced amounting to opinions on matters possibly to be decided by a Court and therefore irrelevant — Application dismissed.

Appeal — To Constitutional Court — Leave to appeal — Application for — When to be granted — Applicant to satisfy two requirements: application must raise constitutional matter or issues connected E therewith; and must be in interests of justice for Court to grant leave — Where applicant raising constitutional issues for first time in application for leave to appeal, whether in interests of justice to grant leave — Applicant seeking to challenge constitutionality of Ch 6 of Prevention of Organised Crime Act 121 of 1998 (POCA) — Applicant failing to seek declaration of invalidity in either High Court or Supreme Court of F Appeal — Applicant also failing to file application for direct access and, despite requirements of Rule 5, not joining Minister of Justice as party — Constitutional litigation requiring accuracy in identification of statutory provisions being attacked, reasonable precision in formulation of attacks and disciplined compliance with Rules — In view of applicant's G non-compliance, not in interests of justice to grant leave to appeal on challenge to Ch 6 of POCA.

Criminal procedure — Prevention of crime — Prevention of Organised Crime Act 121 of 1998 — Forfeiture proceedings in terms of ss 48 and 50 of Act — Requirement that property instrumentality of offence — Such to be proved on balance of probabilities — Beyond doubt that property appointed, H arranged, organised, furnished, and adapted or equipped to enable or facilitate applicant's illegal activities — Clear that property concerned in commission of drug offences, and not merely incidental thereto — Appeal against constitutionality of forfeiture dismissed.

Criminal procedure — Search and seizure — Forfeiture order in terms of Ch 6 of Prevention I of Organised Crime Act 121 of 1998 — Forfeiture proceedings in terms of ss 48 and 50 of Act — Proportionality enquiry — Court weighing severity of interference with individual rights to property against

2007 (6) SA p170

extent to which property used in commission of offence — Fact that only small quantity of prohibited A substance found on property not decisive — Given nature of offence and extent to which property used as instrument of offence, forfeiture satisfying proportionality test.

Headnote : Kopnota

In June 2001 a preservation order in terms of s 38 of the Prevention of Organised Crime Act 121 of 1998 (POCA) was granted in B respect of certain immovable property owned by the applicant. Subsequently, in May 2003, the High Court granted a forfeiture order in terms of ss 48 and 50 of POCA in respect of the same property, ruling that it was an instrumentality of an offence - the manufacture of methamphetamine, an undesirable dependence-producing drug. C

An appeal to the Supreme Court of Appeal (SCA) having been unsuccessful, the applicant approached the Constitutional Court seeking leave to appeal against the judgment of the SCA. At the same time he applied for an order declaring that the forfeiture of his property was 'not constitutionally defensible' and setting it aside; declaring that the operation of the provisions of POCA in respect of the D forfeiture of the property was 'not constitutionally justifiable'; and declaring that the whole of Ch 6 of POCA (alternatively certain sections thereof) was 'not constitutionally valid'. In addition, the applicant applied for leave to lead new evidence.

In the application for leave to appeal the issues before the Court were (1) a constitutional challenge to POCA; (2) the constitutionality of the forfeiture in casu and the proper constitutional approach to that question; (3) whether evidence obtained in consequence E of a search of the applicants' property was admissible to prove that the property was an instrumentality of an offence; (4) a question concerning a possible reverse onus relating to the proportionality analysis; and (5) the issue of the contemporaneous institution of criminal and civil proceedings against the applicant.

The applicant had been acquitted in a magistrates' court on criminal charges arising from the same facts. F

Application to adduce new evidence

Held, that there were two routes for the admission of late evidence on appeal to the Constitutional Court. First, Rule 31 of the Constitutional Court Rules permitted parties to adduce relevant material that was common cause or otherwise incontrovertible, or that was of an official, scientific, technical or statistical nature and G capable of easy verification. Secondly, s 22 of the Supreme Court Act 59 of 1959 permitted the tendering of new evidence in exceptional circumstances, where the evidence was weighty, material and to be believed, and where there was a reasonable explanation for the late filing of the evidence. The three documents sought to be introduced into evidence had to be dealt with in the light of these principles. (Paragraph [33] at 185D - F.) H

Document 1

Held, that the first document, an affidavit from an academic chemist that challenged the conclusion that the applicant had been synthesising methamphetamine contained objectively ascertainable information that could have been adduced earlier. The applicant had I been remiss in not doing so and it would be a travesty of justice, and a precedent open to abuse, if the Court were to exercise its discretion in favour of the applicant simply on the basis that Rule 31 did not require an explanation for the lateness of the filing of the evidence. In any event, the affidavit did not fall within the terms of Rule 31: although it was scientific evidence, it was disputed by the J

2007 (6) SA p171

respondent and was not capable of easy verification. The affidavit was also not admissible in terms of s 22 of the Supreme A Court Act. (Paragraphs [35] and [38] at 186B and 186E - H.)

Document 2

Held, as to the second document - the transcript of the criminal trial in which the applicant had been acquitted - that his main reason for seeking its admission was to persuade the Court that the magistrate's decision that the B evidence gathered during a search of his premises should be excluded was correct. It was to be noted, however, that the provisions of Ch 6 of POCA were not conviction-based. The findings of the magistrate were, for purposes of the present hearing, irrelevant. In any event, the applicant had admitted on the record what was found on his premises and had not sought to withdraw those admissions. Accordingly, the transcript fell to be excluded. (Paragraph [42] at 187G - 188A.) C

Document 3

Held, that the third document, a memorandum from the Director of Public Prosecutions reflecting his decision not to appeal the magistrate's decision to set aside an improperly obtained search warrant, and that the magistrate's decision was thus 'final and D unassailable', was irrelevant for determination of the issues before the Court. In addition, it already formed part of the record, and it was also inadmissible on the ground that the DPP was expressing a legal opinion on matters that a Court might have to decide. In the result, the application to adduce further evidence was to be refused with regard to all three documents. (Paragraphs [43] and [44] at 188B - D.) E

Application for leave to appeal

Held, that an applicant seeking to appeal to the Constitutional Court had to satisfy two requirements. First, the application must raise either a constitutional matter or issues connected with decisions on a constitutional matter; and, second, it must be in the interests of justice for the Court to grant leave. The F present application did raise important constitutional issues: asset forfeiture orders were inherently intrusive and it was necessary to interpret legislation such as POCA so as to ensure that its provisions were constitutionally justifiable. However, the applicant had raised these issues for the first time in the application for leave to appeal. The question therefore arose as to whether it was in the interests of justice to grant leave. In considering this question the different G forms of relief sought by the applicant needed to be dealt with separately. (Paragraphs [45] - [48] at 188E - 190D, paraphrased.)

Constitutional challenge to Ch 6 of POCA

Held, that the fundamental difficulty confronting the applicant was that his attack on POCA was raised for the first time in H this Court - he had not sought a declaration of invalidity in either the High Court or the SCA. Furthermore, in his written argument in...