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

• Jurisdiction: South Africa

Van der Burg and Another v National Director of Public Prosecutions and Another
2012 (2) SACR 331 (CC)

2012 (2) SACR p331

Citation	2012 (2) SACR 331 (CC)
Case No	CCT 75/11; [2012] ZACC 12
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
Heard	March 8, 2012
Judgment	June 12, 2012
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.

Flynote : Sleutelwoorde

Prevention of crime — Forfeiture order — Application for in terms of s 48(1) of C Prevention of Organised Crime Act 121 of 1998 — Whether property, which is instrumentality of offence not created by Act, subject to forfeiture in terms of s 50(1)(a) of Act — Immovable property in question instrumentality of offence of selling liquor without licence in contravention of s 154(1)(a) of Liquor Act 27 of 1989 — No requirement in s 50(1)(a) that crime be one D specifically covered by Prevention of Organised Crime Act — Forfeiture provisions of Prevention of Organised Crime Act applicable to immovable property.

Prevention of crime — Forfeiture order — Application for in terms of s 48(1) of Prevention of Organised Crime Act 121 of 1998 — Whether forfeiture of E residential property disproportionate to offence — Property in question instrumentality of offence of selling liquor without licence in contravention of s 154(1)(a) of Liquor Act 27 of 1989 — Forfeiture sought as last resort to put end to criminality by removing main instrument used in its commission after conventional law enforcement strategies had failed to deter applicants — Manner in which offence committed, coupled with patent harm that commission of offence causing, must result in conclusion that forfeiture F proportionate and appropriate.

Headnote : Kopnota

The applicants appealed to the court against the grant of an order under the Prevention of Organised Crime Act 121 of 1998 forfeiting their residential property. The applicants had been selling liquor from the residential G

2012 (2) SACR p332

A property without a licence, in contravention of s 154(1)(a) of the Liquor Act 27 of 1989. They contended that the forfeiture provisions of the Act were not applicable to the case and that forfeiture was disproportionate in the circumstances. In particular, they submitted that the provisions of s 50(1)(a) permitting forfeiture of property which is an instrumentality of an offence, applied only to offences specifically covered by the Act. B Furthermore, they argued that the forfeiture provisions had been used abusively to punish them for activities which the ordinary criminal-law mechanisms were readily capable of curtailing, that the forfeiture of their property was far more serious than the seriousness of the offence and thus inappropriate, and that forfeiture of their property would leave them and C their children homeless, in breach of their constitutional rights protecting them from arbitrary deprivation of property and eviction.

Held, firstly, that to hold that s 50(1)(a) of the Prevention of Organised Crime Act has the additional requirement, that the crime is one specifically covered by the Act, would probably require a declaration of invalidity or a reading-down of the legislation, but a decision on the constitutional validity D of the provision had not been called for. Although the Act did not explicitly identify the unlawful activity or offence at issue in the matter, the ex facie language of the statute, as well as its aims, suggested that its forfeiture provisions did apply to the property at which the unlawful selling of liquor occurred. Accordingly, the court concluded that the forfeiture provisions of the Act were applicable to the matter. (Paragraphs [38] and [41] E at 345c–345e and 346c.)

Held, further, that the facts of the case showed that the forfeiture provisions had not been used whimsically to punish the applicants for activities which the ordinary criminal-law mechanisms were readily capable of curtailing, but as a last resort to put an end to the criminality by removing the main F instrument used in its commission. This was not an abuse of the Act or the criminal justice system, and did not offend against the Constitution. (Paragraph [51] at 349b–d.)

Held, further, that the 'ordinary criminal law' had failed to deal with the evil and that the patent and ongoing harm caused by the unlawful conduct required alternative measures to bring the unlawful activity to an end. The applicants G had used the property for their business of crime for more than six years, and conventional law enforcement strategies and the preservation order previously obtained had failed to deter them. The manner in which the crime of selling liquor without a licence was being committed, coupled with the patent harm that its commission was causing, must result in a conclusion that forfeiture was proportionate and appropriate in this case. H (Paragraphs [53], [55] and [56] at 349f, 350b and 350c.)

Held, further, that the applicants' bald allegation of homelessness did not seem to be borne out by the facts, as they had not shown that their monthly income was insufficient to lease another home while supporting their children. Moreover, forfeiture under the Act did not necessarily result in eviction. Once a forfeiture order was granted, the occupation might well become I unlawful, but an enquiry under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 would still have to take place, if and when an eviction order was sought. (Paragraphs [59]–[60] at 351d, 352a and 352b.)

Held, accordingly, that forfeiture was not disproportionate in the circumstances of the case. (Paragraph [61] at 352d.)

J Appeal dismissed.

2012 (2) SACR p333

Annotations:

Cases cited

Case law

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2002 (1) SACR 79 (CC) (2001 (4) SA 938; 2001 (10) BCLR 995; [2001] ZACC 22): referred to B A

F v Minister of Safety and Security and Others 2012 (1) SA 536 (CC) (2012 (3) BCLR 244; [2011] ZACC 37): referred to

Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) (2000 (7) BCLR 713; [2000] ZACC 6): referred to

Mohunram and Another v National Director of Public Prosecutions and Another C (Law Review Project as Amicus Curiae) 2007 (2) SACR 145 (CC) (2007 (4) SA 222; 2007 (6) BCLR 575; [2007] ZACC 4): applied

National Director of Public Prosecutions and Another v Mohamed NO and Others 2002 (2) SACR 196 (CC) (2002 (4) SA 843; 2002 (9) BCLR 970; [2002] ZACC 9): referred to

National Director of Public Prosecutions v Christopher Patterson and Another D (CPD, 24 April 2001, case No 12100/99): approved

National Director of Public Prosecutions v Engels 2005 (1) SACR 99 (C) (2005 (3) SA 109; [2004] 4 All SA 250): approved

National Director of Public Prosecutions v Hilda van der Burg and Another (CPD, 22 December 2008, case No 5597/06): referred to

National Director of Public Prosecutions v Mohunram and Others E 2006 (1) SACR 554 (SCA) ([2007] 4 All SA 704; [2006] ZASCA 12): referred to

National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another; National Director of Public Prosecutions v Seevnarayan 2004 (2) SACR 208 (SCA) (2004 (8) BCLR 844; [2004] 2 All SA 491; [2004] ZASCA 37): referred to F

National Director of Public Prosecutions v Van Staden and Others 2007 (1) SACR 338 (SCA) ([2007] 2 All SA 1; [2006] ZASCA 107): applied

National Director of Public Prosecutions v Vermaak 2008 (1) SACR 157 (SCA) ([2008] 1 All SA 448; [2007] ZASCA 150): referred to

Prophet v National Director of Public Prosecutions 2005 (2) SACR 670 (SCA) (2006 (1) SA 38; [2006] 1 All SA 212; [2005] ZASCA 94): referred to G

Prophet v National Director of Public Prosecutions 2006 (2) SACR 525 (CC) (2007 (6) SA 169; 2007 (2) BCLR 140; [2006] ZACC 17): applied

S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312; [2007] ZACC 18): applied

S v Zinn 1969 (2) SA 537 (A): referred to H

Van der Burg and Another v National Director of Public Prosecutions [2011] ZAWCHC 75: approved.

Legislation cited

Statutes

The Liquor Act 27 of 1989, s 154(1)(a): see Juta's Statutes of South Africa I 2011/12 vol 2 at 2-101

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998: see Juta's Statutes of South Africa 2011/12 vol 6 at 3-505

The Prevention of Organised Crime Act 121 of 1998, ss 48(1) and 50(1)(a): see Juta's Statutes of South Africa 2011/12 vol 1 at 2-599 and 2-600. J

2012 (2) SACR p334

Case Information

A Appeal against grant of an order of forfeiture of residential property under the Prevention of Organised Crime Act 121 of 1998. The facts appear from the judgment of Van der Westhuizen J.

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. B

Cur adv vult.

Postea (June 12).

Judgment

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...