South Africa: North West High Court, Mafikeng

Director of Public Prosecutions v Senne and Another (648/02) [2003] ZANWHC 22 (8 May 2003)

Nkabinde J:

[1] This is the extended return day of a rule nisi operating with interim effect and calling upon the defendant and respondent to show cause why the relief set out in paragraph 1 of the provisional restraint order (set out hereunder) should not be made final pending the final determination of this application. The applicant, (The National Director of Public Prosecutions) sought and obtained a provisional restraint order ex parte before Hendler J on 12 December 2002.

[2] For ease of reference and completeness paragraph 1 of the provisional restraint order reads as follows:

1. THAT: a Rule Nisi do issue calling upon the Defendant and Respondent to show cause if any, on 30 January 2003 why an order in the following terms should not be made final.

1.1 Prohibiting, in terms of section 26(1) of the POCA (the Act), any person (including the Defendant and Respondent) from dealing in any manner with any property listed in Schedule assets annexed hereto as Annexure “A” (henceforth referred to as “the property”);

1.2 Directing that GUSTAV EYBERS of Price Waterhouse Coopers be appointed with immediate effect as curator bonis to assume control over the property with all the power and duties set out in section 28(1) of the POCA;

1.3 Directing that any person holding the property surrender such property forthwith into the custody of the curator bonis, failing which any member of the South African Police Services is authorized to seize such property and place it in the custody of the curator bonis.

1.4 Directing that any intrusion occasioned by the power of the curator to search for assets is balanced by the provisions in the order allowing the person whose premises are to be searched to have his or her legal representative present during such search. A similar or related safeguard is contained in the requirement that the curator take a detailed inventory of any assets surrendered or seized under the order and that the person from whose possession the assets are give or taken be afforded an opportunity to check such inventory.

1.5 In addition thereto, the curator will be entitled to deal with any funds in the banking accounts of the Defendant and Respondent, and is hereby authorized to have signing powers on such accounts and to give directions to banking, institution, and other persons in control of funds or property on how to deal with such funds or property. This order will thus operate as the power of Attorney, for the curator to deal with all the property of Defendant and Respondent as if he himself was the Defendant.

1.6 Directing that any person and / or third party, who received property involved in this matter, should disclose to the curator a description and value of each asset. If the person or the third party fails to do so, and the curator should at any time have reasonable grounds for believing that any person has received affected gift (“the Donee”), as defined in section 12(1) and 16 of the Act, he may apply to this court ex parte on the same papers, supplemented so far as need be, for the joinder of the Donee as a Respondent and for the extension of this order to the Donee and to the affected gift or other property held by the Donee to the value of such gift, so far as may be appropriate.

1.7 Directing the curator to release certain property, the property so excluded are non-luxury articles that are reasonably required for the domestic use of the Defendant and Respondent, and their families. This provision has been included to ensure that the restraint order does not unreasonably interfere with the basic requirements of the day-to-day life of the Defendant and Respondent and their families.

1.8 The curator is expected to exercise his discretion in releasing such property as may be required for the purposes of meeting the legal and living expenses of the Defendant, the curator’s discretion in this regard is dependent of the Defendant and Respondent satisfying the Court that they have disclosed under oath all their interest in the property subject to the order and that they cannot meet such expenses out of the unrestrained property at their disposal. I respectfully submit that such provision is in accordance with section 26(6) of the Act.

1.9 The curator is required and directed to serve on the applicant’s Attorney, and on the Defendant and Respondent, if they have delivered a notice of intention to oppose the confirmation of this order, and have given address for the service of the documents; to file with the Registrar of this Court, together with a copy for delivery to the Master of the High Court, an interim report in which he shall set out:

1.10 A description and a sworn valuation (market value as well as forced sale value) of each item of the property of which he has taken possession or control of this order;

1.11 In respect of any item that the curator may have obtained from any person other that the Defendant and Respondent, over which he may assumed control whilst leaving it in the possession of the Third Party, together with a description of the item and a statement of the grounds upon which he took control of it;

1.12 The manner in which he has dealt with or intend to deal with the property taken into his possession or under his control;

1.13 Any other recommendation that he see fit to make with regard to any realisable property of which he had not by then obtained possession or control; or in respect of the definition or enlargement of his powers and duties; and or in respect of any aspect of this matter directed to achieving the objects of this Act.

1.14 In terms of section 28(3)(c) of the Act, ex post facto, expenses and disbursements reasonably incurred by the curator in the execution of his duties shall be paid from the proceeds of confiscation order that may be made against the Defendant and Respondent, failing which, by the State, provided that the curator is entitled to interest not exceeding the prime lending rate of the major financial institutions on such disbursements.

1.15 It is ordered in terms of section 28(2) of the Act, a provision for the restraint of immovable property to be effected by way of the endorsement restrictions against the title deeds of the property concerned listed in Schedule of Assets.

1.16 Copy of this order is to be delivered to the Registrar of Deeds by way of notice of directing him to endorse the Title Deed of any immovable property registered in the name of the Defendant and Respondent with the following restrictions, namely, that the property should not, without consent of this Court:

1.17 be mortgaged or otherwise encumbered; be attached or sold in execution; or

1.18 vest in the Master of the High Court, or trustee of the insolvent estate of the owner, if the estate of the owner should be sequestrated.

[3] The assets sought to be preserved so that they can be realised in satisfaction of a confiscation order are-

(a) the following businesses allegedly operated by the defendant:

(i) OJ’s 24 hour Panel Beating Workshop. The defendant is, in terms of the Schedule of assets (Annexure A to the notice of Motion) the registered owner of the Panel Beating Workshop;

(ii) Petrol Filling Station registered;

(iii) Funeral Parlour registered;

(iv) Andrew Garage registered; and

(v) A restaurant.

The respondent is in terms of the Schedule of assets the registered owner of the businesses in (ii), (iii) and (iv) above.

(b) the following movable properties registered under Defendant:

(i) Two Venter Trailers (2 x DDH 983 NW);

(ii) a White Toyota Hilux;

(iii) a Toyota Venture BGD 597 NW;

(iv) a Nissan 1400 LDV DVD 264 NW;

(v) a White Toyota Hilux; and

(c) the defendant’s bank accounts held in various banking institutions at Rustenburg.

[4] The Defendant, Obed Butibuti Senne, is the son of the respondent, Andrew Senne. They opposed the confirmation of the rule and filed documents in opposition. The applicant filed a replying affidavit and other documents in support thereof. On the return day argument was addressed to me on behalf of all the parties and thereafter, in aberration to extend the rule and postpone the matter to a specific date, I reserved judgment. The omission is however not fatal. The respondent is alleged to have been joined on the ground that he is the owner of the premises in which stolen goods and suspected stolen goods were found.

[5] What follows hereunder is a brief discussion of the provisions of the Prevention of Organised Crime Act (POCA) 121 of 1998 (“the Act”) which I consider important and relevant for the determination of the issues in this matter:

5.1 This application is brought under the provisions of Part 3 of Chapter 5 of the Act which deal with restraint orders “designed to ensure that property is preserved so that it can be realised in satisfaction of a confiscation order” (see National Director of Public Prosecutions v Basson 2001 (2) SACR 712 SCA at 715a). Section 26(1) of the Act authorises the National Director of Public Prosecutions to apply to a High Court, ex parte, for an order ‘prohibiting any person from dealing in any manner with any property to which the order relates’. Other provisions of chapter 5 confer wide discretion upon the Court as to the terms of such a restraint order. Cillie J in National Director of Public Prosecutions v Kyriacou 2002 (2) SACR 67 (OPD) at 79d remarks as follows regarding the exercise of the Court’s discretion:

“The discretion to grant a restraint order is to be sparingly exercised and then only in the clearest of cases and where the considerations in favour substantially outweigh the considerations against.”

5.2 Section 25(1) of the Act provides for the following circumstances in which a restraint order may be made:

“A High Court may exercise the powers conferred on it by section 26(1)-

(a) When-

(i) a prosecution for an offence has been instituted against the defendant concerned;

(ii) either a confiscation order has been made against that defendant or it appears to the court that there are reasonable grounds for believing that a confiscation order may be made against that defendant; and

(iii) the proceedings against that defendant have not been concluded; or

(b) When-

(i) that court is satisfied that a person is to be charged with and offence; and

(ii) it appears to the court that there are reasonable grounds for believing that a confiscation order may be made against such person.”.

5.3 Section 18 of the Act provides only in so far as herein relevant, that-

“Whenever a defendant is convicted of an offence the court convicting the defendant may, 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 find that the defendant has so benefited, the court may, 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 order as it may deem fit to ensure the effectiveness and fairness of that order.”.

[6] I consider this application having, inter alia, the following in mind:

6.1 That the standard of proof required in an application of this nature (under chapter 5) is on a balance of probabilities (s 13(5)). In the National Director of Public Prosecutions v Basson case (supra) at 718f-g the Court stated, inter alia, that section 25(1)-

“... requires that it should appear to the Court itself; ... that there are ‘reasonable grounds’ for such a belief, which requires at least that the nature and tenor of the available evidence needs to be disclosed.”.

Cillie J in Kyriacou case, supra at 79c, said the following regarding the standard of proof application of this nature:

“... It must be proved to the Court by placing sufficient evidence of that before the Court. A restraint order is not there merely for asking and not one to be justified by way of factual averments underpinning or warranting the relief sought, otherwise the Court is expected to be a mere rubber stamp...”

In National Director of Public Prosecutions v Mcasa and Another 2000 (1) SACR 263 (TkH) at 275c-f the Court remarked as follows regarding this standard of proof:

“ In the context of proceedings of this nature this standard of proof gives rise to some procedural (if not constitutional) tension. Even though the Legislature is at pains to point out that such proceedings are civil, there is no running away from the fact that they have everything to do with the possible criminal culpability of the ‘defendant’. Such culpability is provable only by means of testimony that satisfies the Court of an accused person’s guilt beyond reasonable doubt. Our system also presumes an accused innocent until proven guilty. A restraint order does not only affect the ‘defendant’ in what may be his/her property but, depending on the assets involved, it may also result in complete and irreversible financial ruin. All this may befall the accused (who may turn out to be innocent) on the basis of the lesser standard of proof, a balance of probabilities. In our view this tension and the inherent harm to the individual call for the exercise of extreme caution in considering whether the requisite reasonable grounds for the grant of a restraint order do exist. This insistence on extreme caution is by no means an undue importation to the standard of proof.”. I could not agree more. (see also National Director of Public Prosecution v Alexander and Others 2001 (2) SACR 1 at 9e).

6.2 That the objective of restraint and confiscation orders in terms of the Act, to my mind, is to secure such property held by the defendant which is likely to yield a value sufficient to satisfy the confiscation order in terms of s 18 of the Act;

6.3 That in terms of s 18 of the Act a conviction is a sine qua non for a confiscation order. To secure a conviction the State will have to proof the guilt of the accused beyond reasonable doubt. If it is found that the accused’s version is reasonably possibly true, he will be entitled to an acquittal and it follows that no confiscation order can be made;

6.4 That the applicant was entitled to approach the Court ex parte but one should not loose perspective;

6.5 That where there is a dispute of fact the well-known approach in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) must be followed.

[7] Having delineated the salient provisions of the Act and the principles regarding the standard of proof, I now briefly deal with the facts. It is common cause that the defendant is charged with several offences. The offences are identified in the founding papers. I refer to the charges briefly hereunder:

Count 1: fraud and theft of a motor vehicle in the alternative;

Count 2: fraud.

(The motor vehicle which is the subject matter of counts 1 and 2 is the Nissan 1400 LDV bearing registration letters and numbers DVD 264 NW).

Count 3: theft of a motor vehicle (a Toyota Hilux bearing registration letters and numbers DVP 710 NW with chassis and engine numbers AAPV048001024389 and NO480243894, respectively);

In the alternative, the defendant is charged with contravention of s 36 of the Criminal Law Amendment Act 62 of 1955; Further in the alternative, the defendant is charged with contravention of s 37 of Act 62 of 1955. The alternative counts relates to the motor vehicle in the main count;

Counts 4,5,

6 & 7: These relates to contraventions of sections 32(1) (a) and (e), 2 and 36 of the Arms and Ammunitions Act 75 of 1969;

Count 8: Theft of two Venter Trailers both bearing registration letters and numbers DDH 983 NW. One without a chassis number and the other with chassis VEL895777. In the alternative, contravention of s 36 of Act 62 of 1955; and In the further alternative, contravention of s 37 (1) of Act 62 of 1955.

Count 9: Contravention of s 34 (1)(d) of Act 90 of 1983 - Unlawful possession of bank notes.

[8] It is common cause further that the prosecution for such offences has already been instituted and that the proceedings have not been completed as yet. The facts revealed in the founding affidavit of Rabaji, the Special Director of the applicant on his behalf she litigate, suggest that the defendant received and retained stolen motor vehicles and operated a “chop shop” from which he benefited. In deposing to the founding affidavit Rabaji relied, to a great extent, on what Rosslee told her. Rosslee’s affidavit is filed in support of Rabaji’s founding affidavit. It is stated in the founding papers that there are reasonable grounds for believing that the trial court may find that the defendant benefited from his offences and unlawful activities, and that a confiscation order in terms of section 18 of the Act may be made against him as well as the fact that there was a well founded apprehension of irreparable harm if the interim order was refused and a confiscation order subsequently made. Allegations are made in the founding papers that the defendant has hidden assets.

[9] According to Rosslee the defendant was, during May 2001, investigated pursuant to a report that he (defendant) was in possession of a number of stolen motor vehicles which were kept behind Andrews garage. The motor vehicles were stripped and reconstructed there. Upon investigation the police discovered the motor vehicle which is the subject matter of count 3. The engine and vehicle identification numbers(VIN) of this motor vehicle were tempered with. Three other vehicles which were discovered had been stolen. These vehicles are a Nissan 1400 LDV (the subject matter in counts 1 and 2); a red Toyota Venture and an Isuzu 3.2 double cab. As to the trailers in count 8 Rosslee stated that the registration letters and numbers DDH 983 NW were used on two trailers and that one of the trailers had no chassis numbers. He also discovered four venter trailers at the defendant’s premises. One of such trailers bore registration letters and numbers DDH 983 NW as one of the trailers in count 8. He further discovered that the defendant was in possession of unlicenced firearms and ammunitions, certain stolen movable properties and two false bank notes.

[10] In his answering affidavit the defendant admitted having been charged with several offences involving an element of dishonesty but denied any suggestion that he stole the motor vehicles, received and retained stolen motor vehicles and operated a “chop-shop” from which activities he has benefited illegally. He stated that he is a successful businessman who owns and operates (1) 13 taxis from which he earns substantial income; (2) a towing and panel beating workshop which is reasonably profitable; (3) owns a lucrative transport business which generates reasonable income. These allegations remained unchallenged. The defendant has also denied allegations that he operates Andrew Garage Filling Station, a restaurant and a funeral parlour as suggested by Rosslee in the supporting affidavit. He explained that Andrew Garage Filling Station is rented from the respondent and is operated by one Thabo Maungwa; that the restaurant is operated by his sister who rented it from the respondent, and that the funeral parlour is operated by one Johannes Mpete who is also leased the premises from the respondent. He explained further that there is also a cash loan business operated from the same premises by one Coetzee who leased same from the respondent. The applicant did not challenge these allegations. As regards the motor vehicles, motor vehicle parts and trailers found in his possession which are allegedly stolen or suspected to have been stolen the defendant denies such allegations.

[11] Defendant’s response in respect of the 1989 white Toyota Hilux (the subject matter to count 3) is that he bought the motor vehicle at the police auction after the police informed him that the motor vehicle was found to have been stolen when it was confiscated. The owner could not be traced hence its sale at the public auction. He had no personal knowledge of the history of this auctioned vehicle. These allegations were not refuted. He stated further that Rosslee confirmed his version in his testimony at the trial that he could not “establish the vehicle as positively stolen”. I may mention that that portion of the evidence is transcribed and formed part of the papers before me. I mention further here that Rosslee, in his affidavit, made not mention of the motor vehicle in count 3 having been stolen. In reply the applicant stated that the vehicle which was bought at the auction was not similar to the Toyota Hilux which was seized. In my view, the evidence relating to count 3 is clearly lacking for this Court to believe that reasonable grounds exists that a conviction order may be granted.

[12] As regards the Nissan 1400 (relating to counts 1 and 2) allegedly stolen, the defendant denied having stolen this vehicle. According to him he also bought the vehicle from the police auction and was informed by the police that the vehicle was stolen when it was seized and that the owner could not be traced. He stated further that the Nissan was not in good condition when he bought it. He did substantial repair works on it and resprayed it. The applicant did not challenge these allegations. The defendant stated that Rosslee testified at the trial that he “could hardly even found out whether this motor vehicle was stolen or not.” That recorded portion of Rosslee’s testimony at the trial regarding this vehicle is also transcribed and forms part of the papers before me. In reply the applicant stated that one Mr Gouws told him that the motor vehicle which the defendant bought from the police auction had shock stripes and was old but the one seized (relating to count 1 and 2) was new. Apart from what Gouws told him about the 1400 Nissan Rosslee testified at the trial that he did not personally “recognise anything wrong with the motor vehicle...”. In reply the applicant merely challenged the defendant as being selective in quoting from the transcribed record.

[13] As regards the Red Toyota Venture (allegedly stolen) the defendant responded that the motor vehicle belonged to one Ms Ntshodisang. It was involved in a collision and was towed to his workshop to establish if it could be repaired. When he explained these to the investigating team they obtained an affidavit from the owner, Ms Joyce Ntshodisang, who confirmed the defendant’s version in her affidavit, “JFR3". Defendant stated further that the prosecution, in the light of “JFR3", declined to prosecute him in respect of this vehicle. He stated further that the vehicle was returned to him by the police. In reply the applicant did not refute these allegations by the defendant regarding the red Toyota Venture. His reply was that no criminal prosecution against the defendant in respect of this vehicle would proceed and that no restraint order would be sought in respect thereof.

[14] Concerning the red/maroon Isuzu 3.2 double-cab the defendant stated that the motor vehicles belonged to one Gaolathose. It had also been involved in a collision and was towed to his panel beating workshop for repairs. After the confiscation of the vehicle he informed the owner who in turn approached the police with documents proving his ownership of the vehicle. The vehicle was subsequently returned to him. The public prosecutor, in the light of these facts, then declined to prosecute him. In reply the applicant did not refute these facts. He replied that no criminal prosecution against the defendant in respect of this vehicle would proceed and that no restraint order would be sought in respect thereof.

[15] Regarding the theft of the two Venter Trailers (relating to count 8) the defendant confirmed that the two trailers were found in his possession. He explained how he acquired the trailers. The defendant’s responses remained unchallenged. The defendant explained the circumstances under which the registration numbers of one Venter were used on the other Venter. He did not deny that one of the trailers was allocated the registration numbers belonging to the other. In reply the applicant stated that the defendant’s explanation is no answer to the charge of fraud against him. Rosslee’s evidence at the trial show that he could not state with certainty that the trailers were legally obtained or not.

[16] As regards the four trailers the defendant confirmed possession thereof. He explained that he purchased the trailers and that the police conducted an investigation. They were, thereafter, satisfied about the explanation he gave them. The trailers were then not confiscated and the defendant was not prosecuted for possession of such trailers. In reply the applicant did not refute the allegations by the defendant regarding the four trailers. He replied that no criminal prosecution against the defendant in respect of the four trailers would be pursued and no restraint order would be sought in respect of the four trailers.

[17] Regarding the number of suspected stolen property (guns and ammunition) found at his premises, the defendant merely denied that any stolen property was found in his possession at all.

[18] As to his possession of false bank notes of R100 and R200 denominations the defendant did not deny possession thereof but gave and explanation for such possession. In reply the applicant states that the defendant’s explanation relating to his possession of the notes is irrelevant.

[19] As regards the uncovered television set and a video connected to a booster and scanner allegedly hidden in the wardrobe, the defendant admitted that a television set and equipment were placed on a television stand or cupboard but denied that they were hidden in any wardrobe. He stated further that the police checked the relevant documentation of the equipment and were satisfied. They did not confiscate the equipment and did not lay any charge against him in respect of those items. In reply the applicant states that the defendant is being charged with possession of stolen booster and scanner. I may mention that the alleged charge in respect of these equipments does not form part of the papers before me. The applicant stated further that the defendant would not be prosecuted in respect of the television set and video recorder and no restraint order would be sought in respect thereof.

[20] Regarding his possession of property consisting of cell phones, cell phone charges, unlicenced firearms, unstamped manufacturers motor plates and blank motor vehicle registration papers allegedly suspected to have been stolen, the defendant confirmed his possession of cell phones and cell phone charges and that same were confiscated. He stated that the items belonged to him and denied that they were stolen. He denied possession of firearms, ammunitions and blank or unstamped motor plates. In reply the applicant stated that the defendant did not deny that the items were found in his premises.

[21] The question that calls for consideration, having considered the requirements for the grant or refusal of a restraint order, is whether, on the facts revealed in the papers before me, reasonable grounds exists to believe that a confiscation order may ultimately be granted against the defendant.

[22] Having considered this matter very carefully I find in the probabilities that it is overwhelmingly established that there are no reasonable grounds to believe that a confiscation order may ultimately be granted against the defendant. I refer hereunder to instances which fortifies my view:

22.1 Three of the four businesses identified by Rosslee when the provisional restraint order was sought and subsequently granted and which were allegedly operated by the defendant are (a) the funeral parlour, (b) Andrew Garage Filling Station, and (c) a restaurant. The defendant denied having operated these businesses. He gave names of persons who leased the premises from the respondent and operated such businesses. Mindful of the difficulties of specifying properties with reasonable certainty in this kind of applications, it is a matter of great concern that the applicant, in reply, neither refuted the defendant’s responses about such assets which formed the subject matter of the provisional restraint order nor advanced any explanation why such information was at the outset given. Rosslee, having had ample time investigating the matter, was supposed to be in the know. Regrettably, the interim report by the Curator, Mr Eybers, does not shed light in this regard. It is not even suggested that the defendant held any interest in any of such business operations. Of importance and contrary to what the applicant stated in his founding papers, the Curator remarked, in his interim recommendations that he has “no reason to believe that the defendant or respondent is deliberately hiding assets”.

22.2 Bald allegations were made by Rosslee that the defendant operated a workshop at his residential place. The defendant denied these allegations and gave a reasonable explanation why his motor vehicles are, on occasion, parked at his house. The defendant’s responses remained unchallenged.

22.3 The defendant denied the allegations that the motor vehicle 1989 white Toyota Hilux was stolen as alleged in count 3. He provided detailed explanation as to how he acquired the motor vehicle. It is noteworthy and understandable that Rosslee made no mention of the Toyota Hilux having been stolen. This is consistent with his testimony at the trial:

“MR ROSSLEE: I also saw ... Toyota Hilux bakkie, 1995 model ... white in colour, the vehicle was also issued with Police section, engine and chassis numbers. Chassis number .... AAPV048001024389. And the chassis (sic) number VO48243894. The original engine and chassis number have been removed and replaced with this numbers your Worship. I also realized that the vehicle was not with the YBX unique number, the rest of numbers could not be read.

...

I also ... the Toyota Hilux, but I could not reconstruct any numbers, on the chassis number space, I could only (urge) (sic) some of the numbers your Worship, I could not establish that vehicle as positively stolen on a case number, on the CR number. I also took photos of the said vehicle your Worship ... I also visited Mabopane Vehicle Test Unit but could not trace the file on this vehicle.

COURT: Which vehicle?

MR ROSSLEE: On the Toyota Hilux bakkie your Worship. ...

PROSECUTOR: As the Court pleases. We now move to the Toyota Hilux, you say you also took photos?

MR ROSSLEE: That is correct your Worship.

PROSECUTOR: And then on your observation, what did you found which is strange on the vehicle?

MR ROSSLEE: Yes your Worship, the vehicle is being issue with police ... and unique numbers, the vehicle was now white, and previously it was yellow, just like the police vehicle.

PROSECUTOR: So would say it was a State vehicle?

MR ROSSLEE: It is difficult to say that, people at Mabopane lost the file, so I could not get the particulars of the said vehicle.

PROSECUTOR: And then did you find out from Mr Senne where he obtained the motor vehicle?

MR ROSSLEE: No ... I ... saw that the vehicle was sold on auction at Mabopane Police Station your Worship.

PROSECUTOR: Do know whether it was Mr Senne or not?

MR ROSSLEE: Yes the vehicle was bought by Mr Senne.”.

(My underlining for emphasis)

Clearly, Rosslee could not say whether or not the seized Toyota Hilux bakkie was stolen. It cannot, on the papers before me, be said that reasonable grounds exist to believe that a confiscation order may be granted in terms of s 18 of the Act in respect of count 3.

22.4 Further allegations are made that an ocean green Nissan 1400 LDV bearing registration letters and numbers DVD 264 NW, a red Toyota Venture and a red/maroon Isuzu 3.2 double cab had been meddled with, stolen and found in the premises of the defendant. The Nissan 1400 is the subject matter of counts 1 and 2. The defendant denied the allegations. He explained how he acquired the motor vehicle and what the police told him about the Nissan 1400 he purchased at the police auction. The defendant further explained the bad state in which the Nissan 1400 LDV was when he bought it. Subsequent to the purchase he did repair work on it and resprayed it. This clearly explains why the seized 1400 LDV looked new and different to the one which was bought by the defendant at the auction. It is noteworthy that the responses by the defendant with regard to this motor vehicle remained unchallenged. Remarkably, the following testimony by Rosslee at the trial is consistent with the defendant’s version:

“MR ROSSLEE: ...

I also (urged) the Nissan 1400 bakkie, on the engine number space Your Worship, I could not retract any number, on the chassis number space, I could only (urge) some of the numbers Your Worship. I could not establish whether the vehicle was possibly stolen on a CR number”.

At page 201 he said the following about the same motor vehicle

“PROSECUTOR: ... So is there any other thing which you recognised from the motor vehicle which is wrong, except from what you have already explained.

MR ROSSLEE: No, Your Worship, except that there were not numbers on the vehicle.

PROSECUTOR: So you could hardly even find out whether this vehicle was stolen, or not.

MR ROSSLEE: That is correct”.

Needless to say, I cannot, on the papers before me, find reasonable grounds to believe that a confiscation order will be granted in terms of s 18 in respect of counts 1 and 2.

22.5 In so far as the red Toyota Venture and a red/maroon Isuzu 3.2 double cab (allegedly stolen) are concerned, it is not necessary to elaborate. It suffices to state that the motor vehicles were, on the papers before me, neither seized nor stolen hence the reply by the applicant that no criminal prosecution against the defendant in respect of these vehicles would proceed and that no restraint order would be sought in respect thereof. This blowing hot and cold by the applicant and/or Rosslee is mind-boggling. The applicant and/or Rosslee did not only fail to explain this change of heart but also failed to explain why such serious allegations of theft were made in the first place. They did not deny that explanations were given to them about the vehicles. It follows therefore that the applicant and Rosslee not only failed to disclose material facts but also suppressed material facts to the Court. It is trite law that where an order is sought ex parte the applicant must display the highest degree of openness, frankness and bona fides to the Court. In the National Director of Public Prosecutions v Basson case, supra at 719c-f the Court remarked as follows regarding disclosure of material facts:

“ [12] Where an order is sought ex parte it is well established that the utmost good faith must be observed. All material facts must be disclosed which might influence a Court in coming to its decision, and the withholding or suppression of material facts, by itself, entitles a court to set aside an order, even if the non-disclosure was not wilful or mala fide. The fact that the respondent had volunteered to place all the affected property under the control of the State was clearly material. Why it was not disclosed to Mr D’Oliveira, and then suppressed in the affidavit deposed to by Mr Ackerman in support of the application, has not been explained ... In my view the affidavit deposed to by Mr Ackerman was materially misleading. Although the appellant himself cannot be said to have been at fault, he must perforce bear the consequences of the conduct of the officials who are entrusted to litigate on his behalf.”.

I could not agree more.

22.6 Regarding the theft of the two venter trailers the defendant explained how he acquired the trailers. He did not deny that one trailer was allocated the registration numbers of the other. The applicant, did not challenge the defendant’s responses but, in a moment of sudden forgetfulness of the fact that the defendant was charged with theft and not fraud stated that the explanation by the defendant is no answer to the charge of fraud against him. Moreover, Rosslee testified at the trial that he “could not state with certainty that the trailers were legally obtained or not”. It is therefore surprising why charges of theft were pressed in respect of these two trailers. I find the evidence in respect of count 8 to be lacking and accordingly do not find any reasonable grounds to believe that a confiscation order may be made in terms of s 18 of the Act in respect of such count. Even assuming that the defendant may be convicted of fraud for using same registration numbers on two different trailers it is doubtful, when regard is had to the nature of the charge, that such conviction alone will justify a confiscation order in terms of s 18 of the Act.

22.7 Regarding the four trailers the defendant confirmed possession and ownership thereof and furnished a detailed explanation for same. According to the defendant the police were satisfied with the explanation that he was the lawful owner of the trailers. The trailers were therefor not seized. These responses remained unchallenged. The applicant once again stated, in reply, that no prosecution would follow and no restraint order would be sought in respect of the four trailers. It is again surprising that Rosslee failed to inform Rabaji about what the defendant told the police or at least to disclose same to the Court in his supporting affidavit. Clearly, the supporting affidavit of Rosslee, upon which the applicant relied to a great extent, was materially misleading.

22.8 There is a dispute of fact regarding possession of unlicensed firearms and ammunition (the subject matters of Counts 4 to 7) as well as possession of stolen properties, cell phones, cell phone charges, scanner, booster, unstamped motor plates and blank vehicle registration papers. The dispute regarding the theft of these movable properties is, in my view, incapable of being decided on the papers before me. There is doubt in my mind that there are reasonable grounds to believe that a confiscation order may be made against the defendant in terms of s 18 of the Act regarding these movable items. Even assuming for a moment that the defendant may be convicted on counts 4 to 7, it is again doubtful, regard being had to the nature of the charges, that such convictions would justify a confiscation in terms of the Act, especially in the absence of evidence connecting the contraventions of the provisions of Act 75 of 1969 to the assets. It is remarkable that the applicant would not prosecute the defendant in respect of the television set and video recording machine and would not seek a restraint order in respect thereof. This change of heart remains unexplained. The applicant, in reply to the defendant’s response about the scanner and booster, stated that charges have been preferred against the defendant in respect thereof. A matter for surprise is that there is no mention of the charge pertaining to such items in the papers. Accordingly, I disregard such allegations as the applicant must stand or fall by his founding papers.

22.9 Regarding the defendant’s possession of false bank note in contravention of s 34 (1)(d) of Act 90 of 1989, it appears to me that there is a prima facie case for conviction against the defendant. I am of the view, however, that the nature and tenor of the available evidence which is contained in the papers before me does not constitute reasonable ground for me to belief that a confiscation order may ultimately be granted in respect of count 9.

[23] In the circumstances, I find that no reasonable grounds exist on the papers to believe that a confiscation order may be made against the defendant and respondent.

[24] As to costs, counsel for the defendant and respondent submitted that this Court should consider making a special cost order against the applicant for the reason of its failure to disclose material facts. It is indeed true, as I have indicated above, that the applicant and/or Rosslee have been remiss in their duty to disclose material facts which might have influenced the decision of the Court whether to grant a provisional restraint order or not. I am of the view that this is a proper case where an attorney and client costs should be awarded to the defendant and respondent. It is clear that Rosslee, upon whose affidavit the Special Director of Public Prosecutions relied, deliberately held back material facts from the Court. The said Special Director cannot, on the papers, be said to have deliberately concealed material facts as she relied on what Rosslee told her. She was either negligent or committed an error of judgment. That being the case, the applicant who is faultless, cannot escape to bear the consequences of the conduct of his officials, including Rosslee who is attached to the Organised Crime Unit, who are entrusted to litigate on his behalf.

[25] In consequence, the rule nisi granted by Hendler J on 12 December 2002 and extended on 30 January 2003, 27 March 2003 and 3 April 2003 is discharged with costs on the scale as between attorney and client.

B.E NKABINDE

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANT: STATE ATTORNEY

ATTORNEYS FOR THE DEFENDANT : PHANCY MAGANO