The National Director of Public Prosecutions v Mlahleki

• Jurisdiction: South Africa
• Judge: Nepgen J
• Judgment Date: 29 September 2008
• Docket Number: 2353/2006
• Court: South Eastern Cape Local Division
• Hearing Date: 26 November 2007
• Citation: 2008 JDR 1250 (SE)

Nepgen J:

[1] On 13 June 2006 the National Director of Public Prosecutions (NDPP) applied for and obtained a preservation of property order in terms of Section 38 of the Prevention of Organised Crime Act, No 121 of 1998 (POCA). The property which was subject to this order was described therein as follows;

"1.

Erf 42007 Ibhayi also known as 24 Yoyo Street, Zwide, Port Elizabeth;

2.

Furniture at 24 Yoyo Street, Zwide, Port Elizabeth;

3.

Proceeds in First National Bank account number 74056018945;

4.

Proceeds in First National Bank account number 62054590437;

5.

A black Ford Bantam 1300 Explorer motor vehicle with registration number BHG 416 EC in the Second Respondent's possession;

6.

A sum of R 44 689.58 in cash seized at 24 Yoyo Street, Zwide, Port Elizabeth and kept under Mount Road SAP 13/778/2006;

7.

A sum of R 5 838.00 in cash seized at 119 Koyana Street, Zwide, Port Elizabeth and kept under Mount Road SAP 13/1125/2003: and

2008 JDR 1250 p2

Nepgen J

8.

Bail in the amount of R 9 000.00 held by the Clerk of the Court, Port Elizabeth Magistrates' Court under case numbers 27/3294, 3295 & 3296/2006 under receipt numbers D 98229, D982230 and D 982231 ("the property").

[2] The NDPP in due course brought an application under Section 48 (1) of POCA that the property referred to in the preservation order be declared forfeit to the State. This application was opposed by first respondent, but only in respect of the immovable property at 24 Yoyo Street, Zwide, Port Elizabeth (for convenience hereinafter referred to as the house); the furniture in the house; and the money in the two First National Bank accounts. The basis of first respondent's opposition was a denial that the property was an instrumentality of an offence and a denial that such property constituted the proceeds of unlawful activities. Eventually, on 17 October 2006, an order was made by agreement that the Ford Bantam motor vehicle; the sum of R 5 838.00 seized at 119 Koyana Street, Zwide, Port Elizabeth: and the bail in the amount of R 9 000.00 be forfeited to the State. The order further contained the usual provisions in orders of this nature, but in respect of the property to which first respondent laid claim as well as the sum of R 44 682,88 seized at the house, the matter was postponed for the hearing of oral evidence "on the question whether same are liable to forfeiture in terms of Section 50 (1) of the Act".

[3] The matter eventually came before me for the hearing of oral evidence. At such hearing the applicant called a number of witnesses, whereas first respondent was the only witness who testified on her behalf. Apart from Steenkamp, the investigation shift manager at the Boardwalk Casino in Port Elizabeth, who testified in respect of gambling activities conducted on a card belonging to first respondent, the applicant's witnesses were police officials. Two of these witnesses, namely Inspector Qingana and Constable Lawu testified with regard to a number of controlled sales involving mandrax tablets which took place during the period March 2006 to

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Nepgen J

May 2006, although Qingana also testified with regard to, events which occurred before that. The other police witness was Captain Kapp, who, gave evidence in respect of alleged drug dealing which occurred at the house over a number of years.

[4] First respondent purchased the house from the Port Elizabeth Municipality on 8 May 1989 for a price of R 5 825.10. First respondent resides in the house, as do other members of her family. According to the police evidence a number of drug related offences had been...