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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number:308/2002
In the matter between :
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS APPELLANT
and
SAVVAS IOANNOU KYRIACOU RESPONDENT
CORAM : HOWIE P, BRAND, NUGENT JJA, SOUTHWOOD AND MLAMBO AJJA
HEARD : 18 SEPTEMBER 2003
DELIVERED : 26 SEPTEMBER 2003
_________________________________________________________
JUDGMENT
BRAND JA/
BRAND JA:
[1] I have had the benefit of reading the judgments of both Mlambo and Southwood AJJA. I concur in the judgment of Mlambo AJA and I share the views reflected therein. I find myself in respectful disagreement with Southwood AJA.
[2] The difference in the diverging judgments seems to pertain, not so much to the interpretation of the relevant provisions of the Act, but to the application of these provisions to the facts of the case. Broadly stated, Southwood AJA is of the view that the jurisdictional requirements referred to in s 25(1)(a)(ii) have not been met in that there appear to be no 'reasonable grounds for believing that a confiscation order may be made against' the respondent. I cannot agree. I believe that reasonable grounds for such belief do indeed exist. Since both the relevant facts and the opposing arguments already appear from the two preceding judgments, I will state the reasons for the view I hold as succinctly as possible.
[3] It is true that the appellant has been deprived of the R4,5 million which appears to have constituted his entire benefit from the crimes of which he had been convicted. I agree with the view expressed by both Mlambo and Southwood AJJA that, if this were the end of the matter, the trial court would be likely to exercise its discretion in favour of the respondent. However, I believe that there is a real possibility of the trial court concluding that a confiscation order is warranted on the basis that the respondent had derived substantial benefits from offences sufficiently related to those of which he had been convicted. Southwood AJA seems to be of the view that a restraint order can only be based on benefits derived from related criminal activities if the appellant can establish the respondent's involvement in such activities on a balance of probabilities (see par [16] of his judgment). I do not agree. All s 25(1)(a)(ii) requires are reasonable grounds for the belief that the trial court may (not will) conclude that respondent benefited from related criminal activities.
[4] The respondent was convicted on 102 counts of the common law crime of receiving stolen property which he knew to be stolen. The property concerned was found in his possession. It was worth R4,5 million. It is clear that he committed the crime of receiving stolen property on a grand scale. It is most unlikely that a 'fence' who had operated on such a scale would be so unlucky to be caught in possession, on one single occasion, of all the stolen property that he had ever received.
[5] Added to this, there is the fact that the respondent currently owns immovable property to the value of R42 million gross and in excess of R18 million nett of the amounts owing on the bonds registered over them. This is on his own case. In his answering affidavit the respondent does not begin to explain how he acquired this substantial estate. This is where s 22 of the Act comes in. In terms of this section it is presumed that these substantial assets are derived from related criminal activities. In this regard I do not believe that the operation of s 22 can be limited in the way suggested by Southwood AJA in paras [21] and [22] of his judgment. Of course, the respondent may be able to rebut this onus at the enquiry. However, since he had failed to indicate virtually any evidence upon which he proposes to rely in doing so, there must at least be reasonable grounds for believing that he may not succeed.
[6] Moreover, it goes without saying that the available evidence should be approached holistically and not on a piecemeal basis. What must inter alia be included in the complete picture, is the evidence of Captain van Wyk regarding the allegedly stolen goods to the value of R300 000 that were subsequently discovered on the premises of a business controlled by the respondent. Although, as is pointed out by Southwood AJA, the allegation that these goods had allegedly been stolen is based on hearsay evidence, the respondent does not dispute this fact. Nevertheless I agree with Southwood AJA that the case made out by Van Wyk against respondent with regard to these goods, seen in isolation, is not entirely convincing, yet it fits the pattern established by his conviction. It is also true, as Southwood AJA points out, that these goods have, in any event, now been removed by the SAPS. However, that, with respect, is not the point. The goods were received from the same so-called 'fly by night' sources and stored in the same warehouse as those that formed the basis of the respondent's convictions. His defence with regard to these goods is a repetition of the one raised in the criminal prosecution. He again denies 'any knowledge of how the goods were obtained' and contends that he 'merely purchased them from sales representatives whom [he] had no reason to suspect of any crime'. In these circumstances there is, in my view, at least a reasonable prospect that the trial court may discern the emergence of a pattern.
[7] For these reasons I agree with Mlambo AJA that there are indeed reasonable grounds for believing that the trial court may order the confiscation of the property placed under restraint and that the appeal should therefore be upheld with the accompanying costs order that he proposes to make.
……………….
F D J BRAND
JUDGE OF APPEAL
Concur:
Howie P
Nugent JA
Mlambo AJA
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URL: http://www.saflii.org/za/cases/ZASCA/2003/95.html
.RTF of original document