---

IN THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE

EASTERN CAPE, GRAHAMSTOWN

Case No.: CA 28/2010

Date Heard: 26 July 2010

Date Delivered: 19 August 2010

In the matter between:

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Appellant

and

HECTOR HUGO DU PUSANI Respondent

JUDGMENT

EKSTEEN J:

[1] This appeal concerns the dismissal of an application brought by the appellant for a forfeiture order in respect of the sum of R154 260 in cash which was seized by members of the South African Police Services (SAPS) from the respondent in a hotel in Port Elizabeth.

[2] The seizure of the money occurred on 20 October 2008. Inspectors Mitchell and Van Huyssteen, both members of the SAPS obtained information that suspected armed robbers were using the Road Lodge Hotel in Port Elizabeth for accommodation. They accordingly proceeded to the hotel. Upon their arrival they identified a vehicle in the parking lot which had been reported as stolen. Armed with this information they proceeded to make enquiries from the hotel manager at reception about the vehicle. The manager advised that a young man had arrived in the vehicle and that he had proceeded to Room 214. The manager then accompanied the Inspectors upstairs where they encountered the young man, one Morton, in the passage. The Inspectors began to make enquiries from him. Morton moved down the passage towards the door of Room 214. Before he reached the door the respondent opened the door from the inside.

[3] Once the door was open they proceeded into the room. They immediately noticed a large amount of cash in the room which had been tied up in bundles and a number of envelopes on the counter next to the bed. It was later established that the money amounted to R154 260 in total. The money was then confiscated, at that time in terms of the Criminal Procedures Act, 51 of 1977.

[4] On 3 December 2008, the respondent launched an application for the return of the money. This was originally opposed by the appellant, however, the opposition was later withdrawn.

[5] On 12 December 2008, however, the appellant brought an application, ex parte, for a preservation order in terms of section 38 of the Prevention of Organised Crime Act, 121 of 1998, (POCA) in respect of the said money. A preservation order was duly granted. This was followed in April 2009 with an application for an order declaring the money to be forfeited in favour of the State as envisaged in section 48 of POCA. The application for forfeiture was opposed and ultimately dismissed. It is against this order which the appellant now appeals.

[6] The appellant’s case

In the preservation application Mr Kingsley, the Deputy Director Public Prosecutions, contends, on the strength of the affidavits filed in support of the application, that:

1. It has been established that first respondent is involved in illegal abalone activities.

2. It has been established that the first respondent was, in all probability, preparing to pay the money to divers who had illegally poached abalone on his or another person’s behalf.

3. On the probabilities, the cash was used in contravention of regulation 9, read with regulation 96 and section 1 of the Marine Living Resources Act, 18 of 1998.

4. The explanation offered by the respondent as to the origin and purpose of the money is patently false.

5. The money is “an instrumentality of an offence” within the meaning of the Act.

[7] In the application for forfeiture the appellant relied on the same affidavits which had been filed in the application for a preservation order and no additional factual affidavits were filed. Mr Kingsley, in the application for a forfeiture order argues as follows:

‘In the circumstances, from all the evidence available to date, I submit that Applicant has established, on a balance of probabilities, that the property is an instrumentality of the criminal activities of the Respondent or is the proceeds of unlawful activities. The evidence indicates that the following offences were committed:

17.1 More particularly, it is submitted that the property was used in contravening regulation 9 (as amended by R1000 published in Government Gazette Notice 22734 dated 12 October 2001), read with regulation 96 and section 1 of the Marine Living Resources Act 18 of 1998.

17.2 The Court is respectfully referred to Section 58(4) of the Marine Living Resources Act, which provides as follows:

“A regulation made under this Act may provide that a person who contravenes or fails to comply with a provision thereof, shall be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding two years.”

17.3 The Court is also respectfully referred in item 33 of the first Schedule to POCA which provides for “any offence the punishment wherefore may be a period of imprisonment exceeding one year without the option of a fine” and to item 34 of the first Schedule which provides for “Any conspiracy, incitement or attempt to commit any offence referred to in this schedule.”’

[8] Regulation 9 promulgated in terms of the Marine Living Resources Act upon which the appellant relies provides that no person shall, except on the authority of a permit, engage in fishing, collecting, disturbing, keeping or controlling, or be in possession of, any fish during the period specified in respect of each specie in Annexure 2. Abalone is prohibited at all times. There is no suggestion on the papers that the respondent held a permit to perform any of these functions. It was accordingly the applicant’s case that the R154 260 in cash was being used by the respondent in contravention of regulation 9 of the Marine Living Resources Act and that it was therefore an “instrumentality of a schedule One offence” within the meaning of section 48 of POCA.

[9] Section 50(1) of POCA provides as follows:

‘50(1) The High Court shall, subject to section 52 make an order applied for under section 48(1) if the Court finds on a balance of probabilities that the property concerned:

“(a) is an instrumentality of an offence referred in schedule 1; or

(b) is the proceeds of unlawful activities; or

(c) is property associated with terrorist and related activities.’

[10] The circumstances envisaged in section 50(1)(c) of POCA are not in issue in the present matter. Whilst it is apparent from the aforegoing that appellant did, as an alternative, rely on the circumstances envisaged in section 50(1)(b), the focus of the appellant’s case both on the papers and in argument before us was directed at the circumstances envisaged in section 50(1)(a).

[11] The concept of “an instrumentality of an offence” is defined in section 1 of POCA as follows:

‘”Instrumentality” of an offence” being any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the Republic or elsewhere.’

[12] The words “concerned in the commission or suspected commission of an offence” has been the focus of the attention of the Courts. In NDPP v R O Cook Properties (Pty) Ltd (and 2 other cases) 2004 (2) SACR 208 (SCA) Mpati DP and Cameron JA stated as follows at p. 229 para [31]:

“As will appear when we discuss the individual cases, it is not necessary for us to determine comprehensively what standard applies, nor (because of their outcome) to apply a proportionality analysis to the appeals before us. For now it is enough to say that the words 'concerned in the commission of an offence' must, in our view, be interpreted so that the link between the crime committed and the property is reasonably direct, and that the employment of the property must be functional to the commission of the crime. By this we mean that the property must play a reasonably direct role in the commission of the offence. In a real or substantial sense the property must facilitate or make possible the commission of the offence. As the term 'instrumentality' itself suggests (albeit that it is defined to extend beyond its ordinary meaning), the property must be instrumental in, and not merely incidental to, the commission of the offence. For otherwise there is no rational connection between the deprivation of property and the objective of the Act: The deprivation will constitute merely an additional penalty in relation to the crime, but without the constitutional safeguards that are a prerequisite for the imposition of criminal penalties.”

See also Prophet v NDPP [2006] ZACC 17; 2006 (2) SACR 525 (CC) at 548 para [56] where the Constitutional Court approved the aforestated passage; and NDPP v Van Staden [2007] 2 All SA 1 at 6 para [11].

[13] It is well settled that the onus of showing that forfeiture is justified is on the applicant. See section 3(1); and Mohunram and Another v NDPP and Another 2007 (2) SACR 145 (CC) para [75] and [131].

[14] The evidence in support of appellant’s case

The facts leading up to the discovery of the money which are set out above are not dispute.

[15] Inspector Mitchell deposed to an affidavit in support of the appellant’s case. He states that upon entering into Room 214 where the cash was discovered he and Van Huyssteen introduced themselves as members of the SAPS. They thereupon enquired from the respondent what the large amount of money was for. Respondent advised them that he was making up parcels of money for things that he had to pay for and that he did so at the Road Lodge because he had previously been robbed at his home. Mitchell states that he and Van Huyssteen were suspicious and decided to contact the Organised Crime Unit of the SAPS. Upon hearing this, Mitchell states that the respondent appeared nervous and pleaded with them not to contact other units. The respondent said on several occasions that he might get 15 years imprisonment. At one stage he literally went down on his knees to plead. This notwithstanding Van Huyssteen did contact the Organised Crime Unit and Inspectors Els and Eksteen, together with two other members of the Organised Crime Unit came to the Road Lodge.

[16] When the members of the Organised Crime Unit arrived Inspector Els took over the investigation. Mitchell does not in his affidavit deal with any further events which occurred in the hotel room. He states, however, that he recalls that Els had at a stage asked the respondent where he had obtained the cash. The respondent explained that he had sold his Nissan Hardbody to one Fabian for an amount of R140 000. He states that the respondent was unable to give particulars of Fabian’s telephone number. Mitchell says that he accompanied the members of the Organised Crime Unit to their offices. He states that at the offices of the Organised Crime Unit respondent requested to be taken to the toilets. On route, before the respondent entered the toilets, Mitchell states that he searched the respondent and found on him a piece of cardboard in his trouser pocket with various inscriptions on. He states that the respondent pleaded with him not to take the cardboard. Notwithstanding his plea, Mitchell did confiscate the document and handed it to Inspector Els. A copy of the document was attached to the affidavit of Mitchell.

[17] Inspector Van Huysstteen confirms the events leading up to the discovery of the money and further states that prior to enquiring from the manager at reception and whilst he and Mitchell were approaching the reception area he had noticed Morton standing at reception. (Mitchell did not testify to this fact.)

[18] He corroborates the evidence of Mitchell in respect of the manner in which the Inspectors entered in the room and states that he had enquired from the respondent in respect of the money. When he enquired the respondent had told him “don’t worry” and advised him simply to leave it. This explanation is not the same as Mitchell’s evidence as to the explanation given.

[19] He confirms that he and Mitchell decided to contact the Organised Crime Unit and confirms that the respondent repeatedly pleaded with him not to do so and said that he could get 15 years for this. He did not specifically mention that the respondent literally went down on his knees in the course of so pleading as had been described by Mitchell.

[20] Van Huyssteen confirms that when Els and other members of the Organised Crime Unit arrived Els took over the investigation. He too does not deal further with the events which occurred in the room. He also states, however, that at some stage Els had asked Du Pusani about the origin of the money and he corroborates the evidence of Mitchell as to the reply.

[21] Inspector Els stated that when he arrived at the Road Lodge Hotel, having been summoned by Van Huyssteen he proceeded together with Eksteen and Van Huyssteen to Room 214. Originally he was of the opinion that the money may have something to do with the reportedly stolen vehicle which had been discovered. He accordingly focused his attention on Morton, as he was alleged to have been the driver of the vehicle. He states that he questioned Morton whilst Eksteen spoke to the respondent. When he had completed his conversation with Morton he turned his attention to the respondent. At this stage the respondent appeared nervous and told him to “just take the money”.

[22] Els states that the room was searched and that further envelopes containing money were found which had the words “petrol” and “duck” inscribed on them. These exhibits were apparently photographed although the photographs included in the record do not reveal the inscriptions.

[23] On an enquiry as to the origin of the money Els confirms that the respondent informed him that he had sold a motor vehicle for R140 000 to one Fabian and the remainder of the money, he said, was his.

[24] Els further enquired from the respondent what he intended to do with the money to which the respondent replied that he was intending to make loans to people and that Morton was assisting him therein. He also advised that he was using the Road Lodge because he had previously been robbed at his residence. Els confirms that the brown cardboard paper which Mitchell contends that he had obtained in the body search of the respondent of the offices of the Organised Crime Unit was handed to him.

[25] Eksteen corroborates broadly the version of Els. Eksteen states further, however, that when he entered Room 214 he asked the respondent for an explanation for the money. The respondent informed him as follows: “Oom weet mos dit is vir goed wat gelewer is”. Upon a further enquiry as to what goods were delivered Eksteen states that the respondent said: “perlemoen”. He states that this information was freely and voluntarily given.

[26] In addition to the affidavits filed by the various policemen the appellant relied upon an affidavit by one Van Rooyen. Van Rooyen states that he was himself previously involved in the illegal harvesting of abalone. He owned a boat of his own and got to know other role players who participated in the illegal harvesting of abalone. Van Rooyen states that he had been introduced, approximately 18 months prior to deposing to this affidavit, by one Juan de Klerk, to the respondent. He states that the respondent also owns a boat and purchases abalone. Van Rooyen states that he regularly delivered abalone to the respondent who purchased abalone from him.

[27] The brown cardboard with the various inscriptions on which Mitchell contends that he had obtained from the respondent was shown to Van Rooyen. Van Rooyen states that the document is typical of scribblings kept by boat owners in order to calculate payments made to divers employed in harvesting of abalone. Indeed, Van Rooyen states that on numerous occasions he had been present where the respondent himself kept notes of that nature.

[28] Evidence for the respondent

Numerous of the allegations contained in the founding affidavits on behalf of the appellant are not specifically addressed at all by the respondent other than by a blanket denial in the respondent’s answering affidavits. In this regard, after setting out the history of the matter and before dealing with the averments made on behalf of the appellant the respondent stated as follows:

“In the following paragraphs I shall deal with the relevant portions of the affidavits filed in support of the application for a preservation order. To the extent that I have not dealt with any allegations contained in the application for a preservation order, and those allegations are in conflict with what I have set out below or what is set out in Annexure “A” hereto, those allegations must be taken as being denied.”

Annexure “A” to his affidavit constituted the record of the application previously brought for the return of the monies to which I have referred above.

[29] This approach the respondent adopts at his peril. There is a duty upon the respondent to ascertain and to engage with the facts which he disputes and to reflect such disputes accurately in his answering affidavit. See Wightman trading as J W Construction v Headfour (Pty) Limited [2008] ZASCA 6; 2008 (3) SA 371 (SCA) at 375G-376B. The allegations made by Van Huyssteen and Mitchell to the effect that the respondent pleaded with them not to engage the Organised Crime Unit and that he repeatedly stated that he might get 15 years has not been specifically challenged at all, neither have Mitchell’s assertion that he literally went down on his knees. Mitchell’s evidence relating to the body search at the offices of the Organised Crime Unit and the discovery of the cardboard containing various inscriptions is specifically addressed and met by a blanket denial of the events. The respondent protests further that the handwriting on the cardboard is not his.

[30] The content of Van Rooyen’s affidavit is similarly met by a total denial, save that the respondent does admit that he had met Van Rooyen on a number of occasions. He describes Van Rooyen as an unsavoury character with whom he would have nothing to do and who supplies information to the police for financial gain.

[31] The respondent insists that he conducts business as a money lender and has no involvement in the unlawful harvesting of abalone. Just how a money lender came to meet such an unsavoury character engaged in the criminal activity of abalone harvesting on more than one occasion is not explained at all. Neither does the respondent explain how he became aware, as a money lender, that Van Rooyen provides information to police in respect of the unlawful harvesting of abalone.

[32] The averments of Inspector Eksteen are specifically addressed and similarly met with a blanket denial. The respondent labels Eksteen’s evidence in respect of the alleged admission to which Eksteen testifies as “a blatant lie”.

[33] The bulk of the evidence put up on behalf of the respondent relates to the origin of the money. The respondent has provided a brief affidavit from his father Leon Hugo du Pusani, who declares that he had approached the respondent to obtain a purchaser for his motor vehicle. He advised the respondent that he wanted R155 000 for the vehicle and requested the respondent to endeavour to find a purchaser. He states that the respondent informed him on approximately 17 October 2008 that he had obtained a purchaser who was willing to pay R140 000 and that he had sold the vehicle for such an amount. Du Pusani then proceeded to advise that on 20 October he was contacted by Mr Roelofse, an attorney, who advised him of the arrest of his son and that the money had been attached. He states that he was most upset and that he demands the return of his R140 000 from the police.

[34] One Fabian Richard Jones Robert also deposed to an affidavit. He states that he had been approached by the respondent to obtain a purchaser for a Nissan Hardbody motor vehicle which he had been advised belonged to the respondent’s father who wanted as close to R150 000 for the vehicle as he was able to obtain. Robert then made contact with one Van Vuuren, who deals in second hand vehicles and advised him of the particulars of the vehicle. Van Vuuren was prepared to pay R140 000 for the vehicle.

[35] Robert states that he thereupon contacted the respondent who undertook to have the vehicle ready for delivery on 20 October 2008. On 20 October 2008 a meeting was arranged at the offices of Robert between the respondent and the said van Vuuren. Van Vuuren paid the R140 000 for the vehicle, however, he wished certain repairs to be effected to the vehicle prior to the vehicle being delivered. It was accordingly agreed that the vehicle would only be delivered on 24 October 2008. He later heard of the arrest of the respondent and the seizure of the money.

[36] Van Vuuren too deposed to an affidavit. He confirms broadly the version of events as set out by Robert. He states that he is a second hand motor car dealer and he frequently purchases vehicles for hard cash. In this regard he annexes to his affidavit various bank statements for the period ending 25 September 2008 which reveal a number of sizeable cash withdrawals.

[37] The respondent states that he held the monies, being the R140 000, on behalf of his father, but that he was utilising such money to loan to third parties in the course of his business. He did not have the permission of his father to use the monies generated by the sale of his father’s motor vehicle but was confident that his father would be patient and that he would pay the monies to his father once the borrowers had repaid him.

[38] Approach of the Court a quo to the dispute of fact

At the hearing of the application for forfeiture in the court a quo it was argued on behalf of the appellant that the averments put up by the respondent were spurious in nature and the Court a quo was urged to adopt a robust approach and to make a forfeiture order in favour of the appellant. In the event of it being found that the dispute of fact on the papers was not resoluble and the court was not prepared to grant the order on the papers then, the appellant requested the Court a quo to refer the matter to oral evidence.

[39] The respondent, for his part, requested that the application be dismissed, alternatively that the deponents of affidavits filed on behalf of the applicant be directed to submit to cross-examination in order to resolve the disputes of fact which exist on the papers.

[40] At the hearing of the matter before the Court a quo counsel on behalf of the appellant applied for the matter to be referred to oral evidence on the issues in dispute. In the face hereof the Judge a quo applied the test enunciated in Plascon Evans Paints Limited v Van Riebeeck Paints (Pty) Limited [1984] ZASCA 51; 1984 (3) SA 623 (A) accepting the averments of the respondent and held that a “robust approach” was called for in view of the weaknesses in the case presented by the applicant. This so-called “robust, common sense” approach which was enunciated in Soffiantini v Mould 1956 (4) SA 150 (E) at 154E-H, in my view, usually relates to a situation where a respondent contents himself with a bald and hollow denial of factual matter confronting him. There is, of course, no reason in logic why it should not be applied in assessing a detailed version which is wholly fanciful and untenable. It is, however, limited to a situation where the version is “wholly fanciful and untenable”. Compare Truth Verification Testing Centre CC v PSE Truth Detection CC 1998 (2) SA 689 at 698H-J. If a dispute of fact is genuine and is of such a nature that it cannot satisfactorily be determined without the advantage of a trial, which affords the opportunity of estimating the credibility of witnesses, and observing their demeanour, it is undesirable to attempt to settle disputes of fact solely on the probabilities disclosed by the affidavit evidence. In every case the court must therefore examine the alleged dispute and ascertain whether it is of the aforementioned kind and not fictitious. See Da Mata v Otto NO 1972 (3) SA 858 at 865H.

[41] Much was made in the papers, in the judgment a quo and in argument before us of the explanation given by the respondent as to the origin of the funds. I have stated above that although the appellant did rely in its papers, as an alternative, on the provisions of section 50(1)(b) of POCA the focus of the argument before us was on the provisions of section 50(1)(a). Ackermann J had occasion to consider the procedure set out in POCA in National Director of Public Prosecutions and Another v Mohamed NO and Others [2002] ZACC 9; 2002 (4) SA 843 (CC) and commented at para’s [17] and [18] as follows:

“[17] Chapter 6 provides for forfeiture in circumstances where it is established, on a balance of probabilities, that property has been used to commit an offence, … even where no criminal proceedings in respect of the relevant crimes have been instituted. … Chapter 6 is therefore focused, not on wrongdoers, but on property that has been used to commit an offence or which constitutes the proceeds of crime. The guilt or wrongdoing of the owners or possessors of property is, therefore, not primarily relevant to the proceedings.

[18] There is, however, a defence at the second stage of the proceedings when forfeiture is being sought by the State. An owner can at that stage claim that he or she obtained the property legally and for value, and that he or she neither knew nor had reasonable grounds to suspect that the property … had been an instrumentality in an offence ('the innocent owner' defence).”

[42] The procedure provides for an application for a preservation order to be made ex parte in terms of section 38 of POCA. Once the order has been made and it has been served on all persons known to have an interest therein and further published in the Gazette, any person who has an interest in the property which is the subject of the preservation of property order may enter an appearance by giving notice of his or her intention to oppose the making of the forfeiture order or to apply for an order excluding his or her interest in the property concerned from the operation thereof. In terms of section 39(5) of POCA an appearance under subsection (3) shall be accompanied by an affidavit stating, inter alia, the basis of the defence upon which he/she intends to rely in opposing a forfeiture order or applying for the exclusion of his/her interest from the operation thereof. It is this exclusion to which Ackermann J refers as the “innocent owner” defence.

[43] An affidavit was filed on behalf of the respondent by the respondent’s father, Leon Hugo du Pusani to which I have referred above. It is apparent from this affidavit that Leon Hugo du Pusani claims that the money was his. He, however, did not enter an appearance in order to apply for the exclusion of his interests in the operation of the order. A further affidavit was filed on behalf of Van Vuuren, the alleged purchaser of the vehicle. Van Vuuren alleges that although he has paid the purchase price of the vehicle in the amount of R140 000 the vehicle, as a result of the seizure of the money, was not delivered to him. He, however, has also not entered an appearance or applied for the exclusion of his interests from the operation of the order. The “innocent owner” defence accordingly does not arise in this instance. The question to be resolved was whether it has been established on a balance of probabilities that the money seized was being used by the respondent as an instrumentality of an offence. The question is whether the money seized was being prepared in bundles to pay divers for the illegal collection and harvesting of abalone. Its origin is not material for purposes of section 50(1)(a) unless an interested party raises the “innocent owner” defence.

[44] In my view, if the evidence of Van Rooyen, Mitchell and Eksteen were accepted without reservation and without any satisfactory explanation from the respondent it would compel a finding that a contravention of regulation 9 to which I have referred above has, on a balance of probability, occurred. Van Rooyen’s evidence, if accepted, would establish that he met respondent in the illegal abalone trade, that respondent owns a boat used in harvesting and that he buys abalone from other owners. On the evidence of Eksteen there was an unequivocal admission on the part of the respondent that the money which had been tied up in bundles was destined to pay for abalone which had been delivered to the respondent. This would accord with the original explanation which Mitchell contends was given to him earlier to the effect that the money was destined to pay for things which the respondent was required to pay for.

[45] If indeed the money had been set aside in order to pay divers who had harvested and delivered abalone a finding would be justified that the money was “concerned in the commission of an offence” on the test set out in NDPP v RO Cook Properties (supra) to which I have referred above. The money concerned would then be the remuneration for divers without whom the offence of collecting abalone could not have occurred. It would accordingly, in a real or substantial sense, have facilitated the commission of the offence.

[46] In view of what is set out above I consider that the dispute of fact is a material one and that the matter cannot be determined without a resolution of facts. The Court a quo dismissed the evidence of Van Rooyen on the papers alone finding that no reliance could be placed on Van Rooyen’s evidence. This finding appears to be motivated primarily by the finding that the affidavit of Van Rooyen is vague and devoid of substantial factual allegations.

[47] Van Rooyen states that he was actively engaged in the unlawful harvesting of abalone. This is an admission that requires no elaboration. He states that he got to know other boat owners engaged in this activity and gained substantial knowledge of the workings of the participants in the abalone harvesting. This statement is not disputed and appears to accord with the probabilities. Van Rooyen states that he was introduced to the respondent by one De Klerk approximately 18 months prior to deposing to his affidavit and that the respondent owns a boat. Respondent admits that he has met Van Rooyen and refrains from explaining how this occurred. Van Rooyen states that over a period thereafter he repeatedly supplied unlawfully harvested abalone to the respondent. This is a declaration of a course of conduct which persisted over an extended period. This statement is denied. It is true that no documentary support is put up in respect of the times and dates of each delivery and a lengthy exposition of the details of this relationship is lacking, however, given the nature of the activity it would be strange indeed if such detail were retained.

[48] Van Rooyen comments briefly on the format of the cardboard containing various inscriptions which Mitchell claims to have found on the body of the respondent. It is true that this explanation is brief and vague. The thrust of this evidence, however, goes no further than to say that the document is typical of the cryptic notes often kept by boat owners in order to determine payment for divers employed by them. It does not appear to me that there is anything inherently improbable about this evidence. He does continue to state that he had on numerous occasions personally seen the respondent keeping such cryptic notes. This is denied. Finally, Van Rooyen states that the respondent had advised him that he had been robbed at his home. This is indeed so and the respondent concedes that he had at some previous stage been robbed. How unsavoury characters engaged in the illegal trade and harvesting of abalone obtained this information is not explained.

[49] The admission made to Eksteen was similarly dismissed by the Court a quo on the basis that it “does not have the ring of truth” to it.

[50] Eksteen’s evidence is criticised on the basis that Els, Van Huyssteen and Mitchell must have been in the room at the time when the admission was made and none of them testify to having heard it. I have dealt briefly with the evidence relied upon by the appellant above. The papers show that upon the arrival of Els he took over the investigation. He directed his attention to Morton and made enquiries from Morton in respect of the vehicle which had allegedly been stolen. Morton had been the alleged driver of the vehicle and it seems to me that the explanation by Els in this regard is logical and accords with the probabilities. It was at this time, whilst Els was engaged with Morton, that Eksteen spoke to the respondent. It is true that the papers suggest that Van Huyssteen and Mitchell were present in the room. Precisely where they were at this time is not revealed by the papers but it does not appear to be improbable that they would have thrown their weight in with the enquiry made by Els, who, after all, was now in charge of the investigation. In the circumstances I do not think that Eksteen’s evidence relating the alleged admission can simply be dismissed. There may well be an explanation for the other officers not having heard the admission.

[51] The Court a quo held as follows:

“It is improbable in my view that the respondent would make such a statement to Eksteen and soon after that give the explanation concerning the sale of the vehicle which is the only explanation known to the other policeman involved with the matter and which explanation is corroborated by the other persons involved in the sale in their affidavits filed in the application brought by the respondent for the release of the money.”

[52] This criticism, in my view, appears to lose sight of the fact that the explanation relating to the sale of the vehicle deals with the origin of the money whilst the admission made to Eksteen addresses the destiny of the money. They are not inconsistent with one another.

[53] The evidence of Mitchell and Van Huyssteen was similarly dismissed by the Court a quo largely on the strength of perceived differences between their affidavits. On a consideration of these criticisms it appears to me that, in at least some instances, minor differences have been elevated to unwarranted levels of importance. Mitchell states that after identifying an allegedly stolen vehicle in the parking lot outside the Road Lodge Hotel he and Van Huyssteen proceeded towards reception where enquiries were made from the manager. The hotel manager advised them that a young man had arrived in the vehicle and the manager, Mitchell and Van Huyssteen ten proceeded upstairs where Morton was encountered in the passage. All of this is confirmed by Van Huyssteen, however, Van Huyssteen states that as they were approaching reception he noticed a young man, who later turned out to be Morton standing at reception. Morton then left as Mitchell and Van Huyssteen approached. Thus Van Huyssteen testifies to one additional observation which does not emerge from the evidence of Mitchell. For this they are criticised. I do not consider this to be a ground for criticism of Mitchell’s evidence or that of Van Huyssteen. It frequently occurs that two witnesses observing the same events may be attracted to different details. This feature would not detract from the reliability of either of their evidence. On the contrary, it inspires confidence that they have not conspired against the respondent Suffice it to say that the fact that Morton was encountered in the passage prior to him entering Room 214 appears to lend some credence to this observation by Van Huyssteen.

[54] Mitchell states that when it was resolved to call in the Organised Crime Unit the respondent pleaded with them not to involve other units. In the course of so pleading, Mitchell states that at one time the respondent literally went down on his knees. This feature relating to the manner of the plea is not mentioned in Van Huyssteen’s affidavit although Van Huyssteen does confirm that the respondent pleaded with them not to engage the Organised Crime Unit. I agree with the Judge a quo that it would be most improbable that Van Huyssteen would not have seen the respondent sink down on his knees. I do not, however consider that the fact that he has not in his affidavit described the manner in which respondent pleaded justifies an inference that he did not see it or that he would deny that it occurred if he was asked about it in evidence. This is not a contradiction between them.

[55] On a consideration of the aforegoing I am of the view that a real or genuine dispute of fact emerges from the papers which is critical to the determination of whether or not the money seized was an instrumentality of crime. I am of the view that the learned Judge a quo erred in failing to refer the matter to oral evidence.

[56] There is, however, a further consideration which is deserving of consideration. In AECI Limited v Strand Municipality and Others 1991 (4) SA 688 at 698I-699A Marais J stated:

“  In considering the application for the hearing of oral evidence or the cross-examination of deponents to affidavits, I bear in mind that this is not a case in which applicants elected to employ notice of motion proceedings. They were obliged to do so because Rule of Court 53(1) requires them to do so. In such circumstances, a party who wishes to discharge an onus of proof which rests upon him by asking for an opportunity to adduce oral evidence or to cross-examine deponents to answering affidavits should not lightly be deprived of that opportunity.”

[57] Mr van der Linde, who appeared on behalf of the appellant together with Mr de Jager, argues that the present application is one in which the appellant did not have an election as to whether to proceed by way of action and that it was accordingly inappropriate for the Court a quo to determine in application proceedings disputes of fact based on probabilities. Mr Ronassen, on behalf of the respondent, argues that the appellant did indeed have such an election. Mr Ronassen contends that where section 48(1) of POCA provides that the National Director, may apply to the High Court, it is merely an empowering provision which does not compel the appellant do so by way of application procedure. I consider that this submission must be wrong.

[58] Section 38 provides that the National Director of Public Prosecutions may, by way of an ex parte application apply to a High Court for an order in terms of such section. This subsection plainly has in mind an ex parte application on affidavit. Upon granting a preservation order pursuant to an application as envisaged in section 38(1) section 39 requires service of such order. Section 39(3) provides for any person who has interest in the property which is the subject of the preservation order to “enter an appearance giving notice of his/her intention to oppose the making of a forfeiture order or to apply for an order excluding his/her interest in the property.” Section 39(5) then provides that any appearance under subsection (3) shall be accompanied by an affidavit stating, inter alia, the basis of the defence upon which he/she intends to rely in opposing a forfeiture order or applying for the exclusion of his/her interest in the operation thereof.

[59] Section 48 of POCA provides for the second stage of the ongoing procedure which was discussed by Ackermann J in NDPP and Another v Mohamed NO and Others (supra). Section 48(1) provides for the National Director of Public Prosecutions to apply to a High Court for an order forfeiting to the State all or any of the property that is subject to the preservation order. This he must do on 14 days notice to every person who has entered an appearance in terms of section 39(3), as prescribed by section 48(2). Section 48(4) then provides for any person who has entered an appearance in terms of section 39(3) to appear at the application under sub-section (1) to oppose the making of the order and such person may then adduce evidence at the hearing of the application.

[60] In my view, the Act clearly prescribes that the application envisaged in section 48 can only be brought on notice. Whilst persons opposing the order may adduce evidence no similar provision is made for the applicant. In these circumstances the sentiments expressed by Marais J in AECI Limited and Another v Strand Municipality and Others (supra) find application. I consider, for this reason too, that the Court a quo erred in failing to refer the dispute of fact to oral evidence.

[61] Proportionality

Notwithstanding the conclusion to which I have come above Mr Ronassen, on behalf of the respondent, argues that irrespective of the resolution of the dispute of fact the appeal falls to be dismissed as the appellant has made no case in respect of the proportionality requirement. The purpose of the proportionality enquiry is to determine whether the grant of a forfeiture order would amount to an arbitrary deprivation of property in contravention of section 25(1) of the Constitution. The interpretation of POCA (and more particularly of “instrumentality of an offence”) as reaching beyond the ambit of “organised crime” and applying to cases of individual wrongdoing could result in situations of clearly disproportionate (and hence constitutionally unacceptable) forfeiture, and courts must always be sensitive to and on their guard against this. See Mohunram and Another v NDPP and Another (Law Review Project as amicus curiae) (supra) at 168h-169a.

[62] It was held in Prophet v NDPP (supra) at para [58] that the proportionality enquiry requires a general approach of “… weighing the severity of the interference with individual rights to property against the extent to which the property was used for the purposes of the commission of the offence, bearing in mind the nature of the offence”.

[63] In the present matter, as I have stated, there is no application by any innocent third party claiming an interest in the property for the exclusion of his interest from the forfeiture order sought. In the event of the dispute of fact to which I have referred above being determined in favour of the appellant then it appears to me that on the admission allegedly made to Eksteen, the entire amount seized constituted payment for divers who had been unlawfully procured to harvest abalone. The unlawful harvesting of abalone is an extremely prevalent offence which has devastating effects upon the marine reserve and which frequently engages the attention of the courts in the Eastern Cape. In the event that the dispute of fact is resolved in favour of the appellant the amount of money would be indicative of a significant scale of harvesting of abalone. The money is alleged to be payment for those who have been procured to commit the offence. In the circumstances I do not consider that I am able to hold at this stage, without the benefit of oral evidence, that there would be a significant disproportionality between the nature and the value of the property subject to forfeiture on the one hand and the nature and gravity of the crime involved and the role which the property played in the commission of the crime on the other.

[64] In the circumstances the appeal succeeds. The order of the Court a quo is set aside and replaced by the following:

1. The matter is referred back for the hearing of oral evidence on the question whether the R154 260 seized by members of the SAPS on 20 October 2008 constitutes an instrumentality of an offence as envisaged in section 50(1)(a) of POCA.

2. Either party is entitled to call any witness who has attested to an affidavit in these proceedings to testify.

3. Either party is entitled to call any other witness who has not attested to an affidavit filed in this application provided that such party shall file an affidavit by such witness at least ten (10) days prior to the hearing of the matter which affidavit will set out the evidence which such witness will be required to give.

4. The provisions of rule 35 and rule 37 of the Uniform Rules of Court will apply in respect of the hearing of oral evidence.

5. The costs of the appeal are to be costs in the application.

__________________________

J W EKSTEEN

JUDGE OF THE HIGH COURT

MAKAULA J:

I agree.

___________________________

M MAKAULA

JUDGE OF THE HIGH COURT

SMITH J:

I agree.

____________________________

J E SMITH

JUDGE OF THE HIGH COURT

Appearances:

For Appellant: Adv H van der Linde SC and Adv de Jager instructed by Whitesides Attorneys, Grahamstown

For Respondent: Adv O Ronassen and Adv T Price instructed by Messrs Nettleton’s, Grahamstown

---