S v Imador

• Jurisdiction: South Africa
• Court: Western Cape Division, Cape Town
• Judge: Blignault J and Nyman AJ
• Judgment Date: 19 December 2013
• Citation: 2014 (2) SACR 411 (WCC)
• Hearing Date: 09 December 2013
• Docket Number: A 167/2013
• Counsel: TR Tyler for the appellant. Z Matayi for the state.

Blignault J (Nyman AJ concurring):

[1] Appellant was convicted on 13 August 2012 in the regional court at Bellville on a charge of money-laundering in contravention of s 4 of the Prevention of Organised Crime Act 121 of 1998 (POCA). He was E sentenced to five years' imprisonment.

[2] Section 4 of POCA reads as follows:

4 Money laundering

Any person who knows or ought reasonably to have known that F property is or forms part of the proceeds of unlawful activities and —

(a)

enters into any agreement or engages in any arrangement or transaction with anyone in connection with that property, whether such agreement, arrangement or transaction is legally enforceable or not; or

(b)

performs any other act in connection with such property, whether it is performed independently or in concert with any other person,

G which has or is likely to have the effect —

(i)

of concealing or disguising the nature, source, location, disposition or movement of the said property or the ownership thereof or any interest which anyone may have in respect thereof; or

H [Para. (i) substituted by s 6(b) of Act 24 of 1999.]

(ii)

of enabling or assisting any person who has committed or commits an offence, whether in the Republic or elsewhere —

(aa)

to avoid prosecution; or

(bb)

to remove or diminish any property acquired directly, or indirectly, as a result of the commission of an offence,

I shall be guilty of an offence.'

[3] Section 4 of POCA must be read with the following definitions, 'proceeds of unlawful activities' is defined as —

'any property or any service advantage, benefit or reward which was derived, received or retained, directly or indirectly, in the Republic or J elsewhere, at any time before or after the commencement of this Act, in

Blignault J (Nyman AJ concurring)

connection with or as a result of any unlawful activity carried on by any A person, and includes any property representing property so derived'.

'Unlawful activity' is defined as —

'conduct which constitutes a crime or which contravenes any law whether such conduct occurred before or after the commencement of this Act and whether such conduct occurred in the Republic or B elsewhere'.

[4] Subsections 1(2) and 1(3) of POCA read as follows:

'(2) For purposes of this Act a person has knowledge of a fact if —

(a)

the person has actual knowledge of that fact; or C

(b)

the court is satisfied that —

(i)

the person believes that there is a reasonable possibility of the existence of that fact; and

(ii)

he or she fails to obtain information to confirm the existence of that fact. D

(3) For the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached are those which would have been reached by a reasonably diligent and vigilant person having both —

(a)

the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and

(b)

the general knowledge, skill, training and experience that he or she E in fact has.'

[5] The full charge-sheet reads as follows:

'Preamble to charge-sheet

Whereas at all material times relevant to the charge-sheet. F

(1)

The accused is a Nigerian, with a South African identity number 700710 XXXXX, and is self employed

(2)

Izak Jacobus Lintvelt (Hereinafter referred to as the complainant) responded to an e-mail that he received on the 31st January 2008 from a person unknown to him, who introduced himself as Barrister Tom Hickman "Hickman", a London legal practitioner. G

(3)

Barrister Tom Hickman told the complainant that he was the executor of the estate of the late Randolf Lintvelt who passed away in October 1989.

(4)

Hickman informed the complainant that he, the complainant, was the only surviving relative of the late Randolf Lintvelt and that a sole beneficiary of the estate worth thirteen million eight H hundred pounds.

(5)

Hickman also informed the complainant that he required him to make several payments, which would be the following purposes:

•

Legal and consultation fees;

•

preparation of various documentation;

•

revenue charges. I

(6)

Accused before court approached a South African national by the name of Lonwabo Mqonci alias Toto, who at the time worked as a teller for ABSA to use his account number as a recepient (sic) of the money from the complainant, in return Lonwabo Mqonci would leave an amount of R100 000 (one hundred thousand rand) for his assistance, in his bank account. J

Blignault J (Nyman AJ concurring)

(7)

A Lonwabo Mqonci then gave the two Nigerian nationals, one of which was the accused before the court, his bank account details to wit Absa savings account number 917XXXX.

(8)

On the 6th March 2008 Izak Jacobus Lintvelt deposited an amount of R789 300 (seven hundred and eighty nine thousand three hundred rand) into the Lonwabo Mqonci account with B Absa, account number 917XXXX.

(9)

On the 8th March 2008 Lonwabo Mqonci then made two consecutive withdrawals of R290 000 (two hundred and ninety thousand...