Van der Burg and Another v National Director of Public Prosecutions and Another

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Mogoeng CJ, Yacoob ADCJ, and Cameron J, Van Der Westhuizen J, Froneman J, Jafta J, Khampepe J, Nkabinde J and Skweyiya J, and Maya AJ and Zondo AJ
• Judgment Date: 12 June 2012
• Citation: 2012 (2) SACR 331 (CC)
• Hearing Date: 08 March 2012
• Docket Number: CCT 75/11 [2012] ZACC 12
• Counsel: A Katz SC (with H Slingers and M Bishop) for the applicants. G Budlender SC (with H Cronje) for the respondent. R Keightly (with A Skelton) for the amicus curiae.

Van der Westhuizen J (Mogoeng CJ, Yacoob ADCJ, and Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J and Skweyiya J, and Maya J and Zondo AJ concurring):

Introduction

D [1] In this matter the constitutional imperative of law enforcement and combating crime, [1] as given effect to in the forfeiture provisions of the Prevention of Organised Crime Act [2] (POCA), must be balanced against the constitutional guarantee against the arbitrary deprivation of property. [3] The best interests of children who may be affected by forfeiture, or E by the criminal environment giving rise to it, must also be considered.

[2] This is an application for leave to appeal against a judgment of the full court of the Western Cape High Court, [4] which dismissed an appeal challenging an order under POCA granting the forfeiture of the residential F property of the first and second applicants. The applicants want the forfeiture order to be set aside. They argue that this court should condone the late lodging of their application for leave to appeal, grant leave to appeal and hold that the forfeiture provisions of POCA do not apply to this case and that forfeiture is disproportionate in the circumstances. The respondent, the National Director of Public Prosecutions G (NDPP), requests the dismissal of the application for leave to appeal for

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lack of reasonable prospects of success, alternatively, that the appeal be A dismissed.

[3] The Centre for Child Law was admitted as amicus curiae. The amicus contends that the Constitution obliges a court to consider the best interests of the applicants' children before a final determination B can be made on the forfeiture. [5] Thus the amicus requests the court to appoint a curator ad litem to prepare a report concerning the impact the forfeiture would have on the applicants' children.

[4] The questions to be determined are whether —

(a)

The forfeiture provisions of POCA apply to this case and in particular to the criminal offence committed here; C

(b)

the forfeiture of the applicants' property would be proportionate or disproportionate in the circumstances; and

(c)

the Constitution requires this court to appoint a curator ad litem to represent the interests of the children by filing a report to be taken into account in deciding the merits of the forfeiture order, or to take D alternative measures to ensure that the best interests of the children are duly considered under the circumstances.

Factual and litigation background

[5] A fairly detailed account of the factual and litigation history of this E matter is relevant to the determination of the issues. The applicants are a married couple with four children, three of whom are minors. [6] They are registered owners of property they bought in November 2000 for R169 000. A mortgage bond for R135 000 was registered against the property in favour of Standard Bank of South Africa. The F market value of the property at the time of the forfeiture application in 2006 was approximately R350 000. In the same year Standard Bank obtained judgment against the applicants for payment of the amount of R139 538,43 plus interest, and an order declaring the property specially executable.

[6] The property is situated at 25A Birdwood Street, Athlone, a residential G area in Cape Town. The building on the property — a semi-detached house — consists of an open-plan kitchen and living area, three bedrooms, a bathroom and passage. A wooden and galvanised structure is attached to the right side of the house. The applicants have been illegally running a shebeen [7] from the property for years. Liquor is ordered from H

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A and served in the main house and the wooden structure is used as a service, sale and consumption area in the shebeen operation. [8] Police investigations on the property have revealed that the main house, including its bedrooms and passage, is also used extensively to store liquor. Indeed, it appears that a great deal of the property is used for B illegal shebeen activity.

[7] Saint Raphael's Primary School is about 30 m from the property. The entrance to the school is directly in the line of sight of the property. Next to the school, approximately 100 m from the house, is St Mary's Roman Catholic Church. About 900 m from the property, also in C Birdwood Street, is the Star High School, whose learners use Birdwood Street to get to the railway station and thus have to pass the property.

[8] Four licensed liquor outlets exist within a radius of 400 m of the property. One of these has a bottle store licence and the other three liquor licences permitting liquor consumption on the premises.

D [9] The applicants unsuccessfully applied for a liquor licence in February 2002. It is not in dispute that the shebeen has been operating unlawfully from the property. In the full-court decision it is stated that the applicants have carried on their illegal conduct since 2000, when they bought the home. [9]

E [10] The money made by the applicants from trading liquor illegally is not their only income. It would appear from the evidence that the applicants have earned at least R6000 per month from two fruit and vegetable stalls. [10]

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[11] Neighbours have repeatedly complained about the effects of the A shebeen on their children and neighbourhood. An immediate neighbour has written over 50 letters to various government departments in an attempt to bring an end to the unlawful selling of liquor from the property. She has described how people enter the premises throughout B the day and night and leave with liquor purchased there. Patrons sit and drink in the carport and in the back yard, on benches specifically put up for them. On many occasions minors buy liquor and drink it on the premises. The shebeen generates undesirable noise. Physical fights break out regularly between the patrons; the applicants often join the fracas. Extremely vulgar and abusive language is commonplace. Some of the C patrons become so drunk that they collapse on the road on either Birdwood Street or Carrington Street (the street that runs perpendicularly off Birdwood Street). Patrons hurl bottles at one another, as well as against the walls surrounding the neighbours' properties. They urinate in full view of the public, in the yard of the premises, on the street and D against the boundary wall, and they trespass on the neighbour's property in order to gain access to the shebeen.

[12] There have been more than 50 police actions on the property, including 18 arrests. The applicants have themselves been arrested. [11] E In two of the cases in which arrests were made, the charges were withdrawn, while admission of guilt fines were paid in the other 16. In each instance there was no dispute that liquor was being unlawfully sold on the property. The police gave oral [12] and written [13] warnings to the applicants on numerous occasions, to cease the unlawful selling of liquor. In addition to these arrests and warnings, the police have seized vast

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A amounts of liquor from the premises on various occasions. [14]

[13] These police interventions have not stopped the criminal activity, which continues day and night. It seems to be a large operation. The applicants have 'runners' who do much of the work for them. They seem to persist in the unlawful conduct because of its profitability. B Indeed, the police decided —

'due to lack of resources, to stop with further search and seizure operations at the property as conventional law enforcement strategies failed to have any effect on the [applicants].' [15]

C [14] As a result of these unsuccessful efforts the NDPP launched an application for a preservation order in respect of the property. A provisional preservation order was granted in June 2006 and the order was made final in October of that year. Despite the preservation order, the applicants continued unabated with the unlawful activity.

[15] In January 2007 the NDPP applied to the high court for a forfeiture D order against the property in terms of s 50(1)(a) of POCA. [16] On 22 December 2008 Gassner AJ [17] granted the order after finding that the property was instrumental in the commission of the crime of selling liquor without a licence and that forfeiture would be proportionate in the circumstances. [18]

E [16] The applicants appealed to the full court and argued that illegally selling liquor is not an offence in terms of ch 6 of POCA, [19] as POCA only relates to 'organised crime offences' and not to criminal activity by individuals. They argued that the property therefore could not be an instrumentality of an offence as envisaged by POCA. They also contended that the forfeiture of the property is manifestly disproportionate F to the offence they committed. [20]

[17] On 16 March 2011 the full court dismissed the applicants' appeal. It held that the offence fell squarely within the ambit of POCA, that the property was a direct 'instrumentality of an offence' within the meaning of s 1 of POCA [21] and that the forfeiture was not disproportionate. G The applicants sought leave to appeal to the Supreme Court of Appeal. On 30 June 2011 their application was dismissed with costs.

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[18] The applicants ask this court for leave to appeal against the full-court A decision. They submit that the interpretation of POCA is a constitutional issue and that this court has recognised that forfeiture affects constitutional rights.

Constitutional and statutory framework B

[19] The general objectives of POCA — according to its long title — are to combat organised crime, money-laundering and criminal gang activities, to ensure recovery of the proceeds of unlawful activity and to provide for the civil forfeiture of criminal property that has been used...