The National Director of Public Prosecution v De Vries

• Jurisdiction: South Africa
• Judge: Bozalek J
• Judgment Date: 27 February 2009
• Citation: 2009 JDR 0137 (C)
• Docket Number: SS 67/2005
• Court: Cape Provincial Division

Bozalek J:

[1]

First to third defendants were respectively accused 1, 2 and 11 in criminal proceedings in this court which commenced before me in August 2005. The defendants were convicted of various offences on 10 June 2008 and sentenced on 26 August 2008. On 18 August 2008,

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after conviction but before sentence, the State applied for a confiscation order enquiry to be held in terms of s 18(1) of the Prevention of Organised Crime Act 121 of 1998 ("the Act") into any benefits the defendants may have derived from unlawful activities. By agreement the court ordered the institution of the proceedings but postponed the enquiry to 1 December 2008 in order not to delay sentencing proceedings. Further terms of the order made provision for the filing by the parties of the various statements and affidavits which ss 18 and 21 of the Act envisage.

[2]

By the time of hearing all three defendants were represented by counsel and fourth respondent, a close corporation in which the third defendant was said to possess a substantial interest, had been joined. Counsel for first and second defendants advised that they had only just received instructions and were not ready to proceed. Accordingly the enquiry in respect of these defendants was postponed but proceeded in relation to the third defendant.

POINTS IN LIMINE

[3]

On behalf of the third defendant, Mr. Spangenberg raised three points in limine. Firstly, he contended that the applicant had failed to prove his authority to conduct the proceedings. Secondly, he disputed the court's jurisdiction to hear the enquiry and, thirdly, he argued that any right which the applicant may have had to a confiscation order had prescribed.

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[4]

Before dealing with these points it is appropriate to quote the provisions of s 18:

18 Confiscation orders

(1) Whenever a defendant is convicted of an offence the court convicting the defendant may, on the application of the public prosecutor, enquire into any benefit which the defendant may have derived from-

(a)

that offence;

(b)

any other offence of which the defendant has been convicted at the same trial; and

(c)

any criminal activity which the court finds to be sufficiently related to those offences,

and, if the court finds that the defendant has so benefited, the court may, in addition to any punishment which it may impose in respect of the offence, make an order against the defendant for the payment to the State of any amount it considers appropriate and the court may make any further orders as it may deem fit to ensure the effectiveness and fairness of that order.

(2) The amount which a court may order the defendant to pay to the State under subsection (1)-

(a)

shall not exceed the value of the defendant's proceeds of the offences or related criminal activities referred to in that subsection, as determined by the court in accordance with the provisions of this Chapter; or

(b)

if the court is satisfied that the amount which might be realised as contemplated in section 20 (1) is less than the value referred to in paragraph (a), shall, not exceed an amount which in the opinion of the court might be so realised.

(3) A court convicting a defendant may, when passing sentence, indicate that it will hold an enquiry contemplated in subsection (1) at a later stage if-

(a)

it is satisfied that such enquiry will unreasonably delay the proceedings in sentencing the defendant; or

(b)

the public prosecutor applies to the court to first sentence the defendant and the court is satisfied that it is reasonable and justifiable to do so in the circumstances.

(4) If the judicial officer who convicted the defendant is absent or for any other reason not available, any judicial officer of the same court may consider an application referred to in subsection (1) and hold an enquiry referred to in that subsection and he or she may in such proceedings take such steps as the judicial officer who is absent or not available could lawfully have taken.

(5) No application referred to in subsection (1) shall be made without the written authority of the National Director.

(6) A court before which proceedings under this section are pending, may-

(a)

in considering an application under subsection (1)-

(i)

refer to the evidence and proceedings at the trial;

(ii)

hear such further oral evidence as the court may deem fit;

(iii)

direct the public prosecutor to tender to the court a statement referred to in section 21 (1) (a); and

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(iv)

direct a defendant to tender to the court a statement referred to in subsection (3) (a) of that section;

(b)

subject to subsection (1) (b) or (3) (b) of section 21, adjourn such proceedings to any day on such conditions not inconsistent with a provision of the Criminal Procedure Act, 1977 (Act 51 of 1977), as the court may deem fit.

JURISDICTION

[5]

It was contended on behalf of the third defendant that the court lacked jurisdiction since the former resided in Gauteng, possessed no property within the court's jurisdiction and because the cause of action did not arise within the jurisdictional area of the court.

[6]

Section 18(1) of the Act makes it clear that the primary jurisdictional requirement for a confiscation order enquiry is that the defendant has been convicted of an offence in terms of the Act. It is common cause that the third defendant was convicted of money laundering and participating in the affairs of an enterprise through a pattern of racketeering activities in terms of the Act.

[7]

In Shaik v The State 2008 8 BCLR 834 (CC) [1] , in discussing the nature of the discretion exercised by a trial court in terms of s 18 of the Act, the Constitutional Court held that it was analogous to the discretion to determine the proper sentence to be imposed in criminal proceedings. [2] This observation underlines that the court best placed to conduct any such enquiry and make any confiscation order is that which has convicted the defendant. There is no suggestion in this matter of the

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court exercising extraterritorial jurisdiction in the sense of going beyond this country's borders. Furthermore, the prosecution against the third defendant and his fellow accused was centralized in this court in terms of s 111 of the Criminal Procedure Act, 51 of 1977. In these circumstances, and having regard to the provisions of s 18 of the Act, the questions of where in South Africa the third defendant is ordinarily resident, where the offences were committed and where his/her assets may be situated in the country, are irrelevant.

[8]

I should mention that in the criminal trial the third defendant similarly challenged the jurisdiction of the court notwithstanding the issuance of a certificate by the applicant in terms of s 111 of the Criminal Procedure Act. [3] That challenge was held to have no merit and it is no stronger for being raised again in this different context. Regard being had to the provisions of s 18(1) of the Act, it is this court alone which may consider an application for a confiscation order.

LACK OF AUTHORITY

[9]

Section 18(5) of the Act provides that no confiscation order application may be made without the written authority of the National Director of Public Prosecutions. In his opposing affidavit the third defendant points out that the deponent to the founding affidavit, an investigator in the employ of the South African Police Services stationed at the Asset Forfeiture Unit, does not allege that the application is brought with the

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written authority of the National Director, nor is any written authority attached to the founding affidavit.

[10]

When the application was launched in court on 18 August 2008, counsel for the Asset Forfeiture Unit handed up a copy of an authority entitled "Authorisation in terms of s 18(5) of Act 121 of 1998". In the heading of the authority first, second and third defendants were cited. The authority purported to have been signed by Mr. WA Hofmeyr in his capacity as Deputy National Director of Public Prosecutions and head of the Asset Forfeiture Unit. It reads as follows:

"I, William Andrew Hofmeyr, National Deputy of Public Prosecutions, duly appointed as such in terms of s 11 of the National Prosecuting Authority Act, 32 of 1998, and duly authorised by the National Director of Public Prosecutions, to authorise the institution of an application referred to in s 18(1) of the Prevention of Organised Crime Act, 121 of 1998, do hereby authorise the institution of such application in the matter of The State v Selwyn De Vries and Others: case no. 67 / 2005."

[11]

Although s 18(5) of the Act refers to the written authority of the National Director, s 23 of the National Prosecuting Authority Act, 32 of 1998 provides that:

"(a)ny Deputy National Director may exercise or perform any of the powers, duties and functions of the National Director which he or she has been authorised by the National Director to exercise or perform."

Section 11 of the said Act provide for the appointment of Deputy National Directors. Furthermore, s 1(c) of the Prevention of Organised Crime Act 121 of 1998 provides by implication that, for the purposes of s 18(5), the National Director "includes any functionary referred to in section 1 of… (Act 121 of 1998) …which is under the control of the National Director and authorised thereto by the National Director in a specific case or in general…". Again, Mr. Hofmeyr, the signatory to the authority, fits the description of one such functionary, namely, a Deputy

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National Director appointed under section 11 and acting under a general authority to institute confiscation order enquiry proceedings.

[12]

Counsel for the various defendants were either furnished with a copy of...