Qui v The National Director of Public Prosecutions
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | LG Lever J and APS Nxumalo J and LP Nobanda AJ |
| Judgment Date | 04 February 2022 |
| Docket Number | 2746/2017 |
| Hearing Date | 18 October 2021 |
| Court | Northern Cape Division |
| Citation | 2022 JDR 1974 (NCK) |
Lever J:
This appeal comes before the full Court of this division by way of leave granted to the appellant by the Supreme Court of Appeal (SCA) on the 23 September 2020. The appeal is against the judgment and order of Mamosebo J handed down on 12 July 2019 in this matter. In terms of
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the said judgment, Mamosebo J made an Order declaring the relevant property forfeited to the State. The relevant portion of such Order reads as follows:
That in terms of s50 of the Prevention of Organised Crime Act 121of 1998 (POCA) the VW Polo with registration numbers and letters CL 16 YR GP, chassis number WVWZZZ6RZDY137775 and engine number CTH033333 currently in the custody of the police at the Colesburg Police Station and the cash amount of R2 448 240.00 booked into the Colesburg SAP 13 and deposited in the South African Police Services (SAPS) ABSA bank designated account with reference number 686018 is declared forfeit to the State with immediate effect.
...(the omitted portions of the Order deal with procedural aspects of a forfeiture order which are not relevant to the current appeal) ...
The respondents are ordered to pay the costs of the suit the one paying the other to be absolved."
The underlying facts that eventually led to the above forfeiture order are to a large degree, not really in dispute. Accordingly, they will not be dealt with in any great detail. To the extent that it is necessary to give context to this judgment an outline of such facts will be set out in this judgment.
In the early hours of the morning on 21 September 2017 Jermaine Johnson (Johnson Jnr) and his cousin, one of whom was driving the relevant vehicle at that time, were stopped just outside Colesberg by the South African Police Services (SAPS) at a roadblock. The vehicle was searched. A locked briefcase, which was ultimately found to contain an amount of R2,430, 000.00 (two million four hundred and thirty thousand
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Rand), was found in the said vehicle. Also, a plastic bag containing R18,240.00 (eighteen thousand two hundred and forty Rand) was found in the vehicle.
Johnson Jnr was to transport the briefcase and the funds contained therein from Pretoria to Cape Town and deliver the locked briefcase containing the cash to a specified person. The R18,240.00 mentioned above was part of R20,000.00 (twenty thousand Rand) where R5,000.00 (five thousand Rand) was intended for fuel and other expenses and the R15,000.00 (fifteen thousand Rand) was intended to pay Johnson Jnr for his troubles.
Johnson Jnr and his cousin were arrested and charged with money laundering. The criminal matter was reportedly struck off the roll. The charges against the two were withdrawn and to date hereof have not been reinstated. To date hereof, no one else has faced any criminal charges related to the relevant cash and VW Polo.
In papers filed in both opposing the preservation order as well as the forfeiture order proceedings, the appellant stated that she was approached by two individuals, Yehong Wu and Yexing Wu, collectively referred to as the Chinese nationals in the papers, to assist them in sourcing oysters and exporting them to China.
The appellant had contact with a private company referred to as Salmar in the papers that formed the record in this appeal. Salmar was
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represented by Tsz Cheung who was also referred to as Gabriel in the papers. The appellant contacted the said Tsz Cheung and for the specified tonnage of oysters a required price of R2,430, 000.00 (two million four hundred and thirty thousand Rand) was agreed.
The Chinese nationals enquired if they could pay this amount in United States of America Dollars (US Dollars). The position of the company Salmar was that only South African Rands paid to them in advance and in cash would be acceptable. These terms were agreed, and the Chinese nationals left the cash with the appellant so that she could finalise the transaction on their behalf.
The Chinese nationals brought a large sum of money in the form of US Dollars into the country and after staying at and gambling in various casinos in the country where they had allegedly won large sums of money. This on their version is the source of the funds that ultimately found its way into the relevant locked briefcase. On the appellant's version there was nothing illegal or unlawful in relation to the way the funds came to be the property of the Chinese nationals. These contentions and circumstances set out above were verified by way of affidavits from the Chinese nationals and Tsz Cheung. By virtue of the Order that it made in the matter, clearly the court a quo did not accept this version.
There are three questions to be considered in this appeal:
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Firstly, does appellant have a right to oppose the application for forfeiture or stated differently, a right and interest to prosecute this appeal in respect of the said sum of money in particular. It is clear that as the owner of the VW Polo she has a direct interest in the said vehicle;
Secondly, interpretation of s50(1)(a) of POCA [1] and its application to the facts of this matter, i.e. whether the motor vehicle concerned was an instrumentality of an offence; and
Finally, interpretation of s50(1)(b) of POCA and its application to the facts of this matter, i.e. whether the sum of money concerned was the proceeds or derived from unlawful activity.
Turning to the first question, it was never in dispute that the vehicle concerned was registered in appellant's name. In regard to the relevant sum of money, the appellant deposed in her opposing affidavits that the Chinese nationals entrusted the money to her. That in accordance with their business practice and custom she would be obliged to reimburse the said Chinese nationals if the money was lost whilst in her care.
In debating this issue with Ms Van Dyk who appeared for the respondent in this matter, she correctly conceded that this would give the appellant an interest in the relevant sum of money sufficient to
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prosecute this appeal. This effectively disposes of the first question set out above.
Turning to the second and third questions set out above. Section 50(1)(a) of POCA deals with property that is an instrumentality of an offence referred to in Schedule 1 of the said Act and section 50(1)(b) of POCA deals with property that constitute the proceeds of unlawful activity. Both the court a quo and the respondent in arguing this appeal approached the issue of dealing with the question of whether the relevant vehicle was an instrumentality of an offence first. This is how it appears chronologically in the POCA. However, on the facts of the present case, the question of the status of the said vehicle as an instrumentality in committing an offence depends upon the question of whether the relevant sum of money is tainted by criminality.
It therefore makes sense, on the facts of the present matter, to first determine whether the respondent has established on a balance of probabilities that the money concerned is the proceeds of any unlawful activity.
It is important to note that forfeiture proceedings under the provisions of s50 of POCA are civil proceedings as provided for in s37 of POCA. Specifically, s37(2) of POCA provides that the rules of evidence applicable in civil proceedings apply to such forfeiture applications.
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The respondent relies on the following grounds, as set out in paragraph 7 of its founding affidavit in the forfeiture application [2] to establish that the relevant sum of money is the proceeds of unlawful activities and that the relevant vehicle was an instrumentality of an offence:
For reasons that will be dealt with below, it is submitted that the property (sic) are instrumentalities of an offence or the proceeds of unlawful activities referred to in schedule 1 i.e. items 26 (any offence relating to exchange control), 32 (any offence referred to in chapter 3 or 4 of POCA), 33 (any offence the punishment wherefore may be a period of imprisonment exceeding one year without the option of a fine i.e. section 64 of the Financial Intelligence Centre Act 38 of 2001) and/or 34 (any conspiracy, incitement or attempt to commit any offence referred to in Schedule 1of POCA)(the offences)."
It is evident from the passage quoted above that at least to some extent, the respondent, has mixed and matched the concepts of what is an instrumentality of an offence and what are the proceeds of unlawful activities. In the context of s50 of POCA, Schedule 1 of POCA relates only to property that is an instrumentality of an offence. On the facts of this case, this would only relate to the relevant vehicle.
However, also in the context of the facts of the present case, the grounds upon which the respondent alleges that the vehicle is an instrumentality of a crime also informs us of the basis upon which the
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respondent relies for contending that the sum of money concerned is derived from or is the proceeds of unlawful activity.
In summary, the respondent in the forfeiture application, relied on the following contentions in asserting that the sum concerned derived from or was the proceeds of unlawful activity:
It derived from any offence relating to exchange control;
On the facts of this case chapter 3 of POCA and specifically the offence of money laundering as defined in s4 of POCA is relevant. Chapter 4 of POCA would on the facts of this case not be relevant;
There was a contravention of s64 of the Financial Intelligence Centre Act [3] (FIC Act) on the basis that such offence would attract a sentence exceeding...
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