IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT, CAPE TOWN

In the matter between:

and

JUDGMENT DELIVERED ON 3 FEBRUARY 2011

1. This is an application by the National Director of Public Prosecutions ("the Applicant") for a forfeiture order in terms of section 48(1) read with section 50(1) of the Prevention of Organised Crime Act,1998 (Act 121 of 1998) ("the Act") in respect of immovable property situated at 4 Bontebok Crescent, Eastridge. Mitchells Plain ("the house") and R12 320,00 in cash
2. The Applicant, in the founding affidavit deposed to by Jacobus Abraham Niehaus, a deputy director of public prosecutions in this jurisdiction, alleges that the house is an instrumentality of the offences of dealing in drugs in contravention of section 13 of the Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992) ("the Drugs Act") and of Housebreaking and/or that it constitutes the proceeds of unlawful activities of dealing in drugs and/or housebreaking. Similarly it is alleged that the money is an instrumentality of the offence of dealing in drugs in contravention of section 13 of the Drugs Act and/or the proceeds of the unlawful activities of dealing in drugs.
3. On 26 November 2009 the applicant obtained a Preservation of Property Order in terms of section 38 of the Act in respect of the house and the money.
4. On 15 December 2009 the sheriff served (he preservation application and order on both respondents.
5. Notice of the Preservation Order was published in the Government Gazette on 18 December 2009.
6. In a handwritten letter dated 26 February 2010 and delivered to the applicant's attorney of record, first respondent gave notice of her intention to oppose the making of a forfeiture order with regard to the house. In this document she gave her full name and address and stated that she is the registered owner of the house.   She furthermore set out the basis of the defence upon which she intends to rely in opposing a forfeiture order in respect of the house. She further offered her apologies for the late filing of the notice and explained that she could not find legal assistance from the Legal Aid Board and she did not have money for an attorney.
7. Strictly speaking, this is notice does not comply with the provisions of section 39(4) and (5) of the Act in that it was served outside the 14-day period provided for and was not accompanied by an affidavit as required by section 39 (5). Despite this defective notice the applicant was clearly not prejudiced. He undertook to and did serve a copy of the forfeiture application on the first respondent in terms of section 48(2). In the circumstances and as there was, despite the shortcomings in the notice, substantial compliance with the relevant statutory provisions, I am prepared to condone these shortcomings and to accept the notice as a notice of appearance to oppose the making of a forfeiture order in respect of the house.
8. This application for a forfeiture order was issued by the Registrar of this court on 16 March 2010 and served on the first respondent, by leaving a copy at the address stipulated in her notice of appearance, on 18 March 2010, thus within the 90-day period since the publication of the notice in the Gazette on 18 December 2009 as provided for in section 40 of the Act.

9.      The forfeiture application was thus pending before the High Court before the preservation of property order would have expired.
10. No appearance to oppose the making of a forfeiture order in respect of the house or the money was entered by second respondent or anyone else. First respondent's opposition is limited to the house only.
11. The issues to be decided in this matter arc consequently:

11.1. whether the house and the money are instrumentalities of the offences of dealing in drugs in contravention of section 13 of the Drugs Act and/or of housebreaking with the intention to commit an offence;
11.2. whether the house and the money are the proceeds of unlawful activities;

11.3. in the light of the notice of appearance by first respondent, whether the house should be excluded from any forfeiture order; and
11.4. whether the forfeiture sought will be disproportionate.

13.1. The house was adapted to conceal and hide drugs. There are various trapdoors in the ceiling of the house to enable the concealment of drugs in the roof. The bath tub in the bathroom, adjoining the main bedroom, was modified so that it could be detached from the wall to give access to a hiding place for drugs. Various holes were made in the walls of the house to conceal drugs. These were covered with wall hangings. A secret compartment under a loose plank on the staircase was also used to conceal drugs.
13.2. During the period 2005 to September 2009 at least 52 search and seizure operations were executed at the house by the police. Invariably drugs were found in one or more of these hiding places or on the persons of people present at the house, including first respondent. The drugs included tik, dagga and heroin.
13.3. Apart from the drugs, a number of electronic scales were also found in the house at various times, as well as bank bags and various amounts in cash. The electronic scales are of the type used by drug dealers to weigh drugs. Bank bags arc used to pack the drugs for sale.
13.4. The police also found handwritten notes in the house which made it clear that drugs were being sold and that the first respondent was involved therein.

14. These allegations, which arc indicative of illegal drug dealing at the house on a large scale over an extended period of time, were not denied by the first respondent. She however contended that she was not aware thereof
15. On the evidence placed before me by the Applicant and which is not denied by the First Respondent, it is clear that the house was not only used as a base from which the drug dealing activities took place over an extended period of time, it was also adapted to serve as a place where drugs could be concealed and stored. The house clearly played a direct role in the commission of the offence of dealing in drugs in contravention of section 13 of the Drugs Act.

The proceeds of unlawful activities

"52(1) The high court may, on application -
(a)   under section -48(3); or

and when it makes a forfeiture order, make an order excluding certain interest in property which is subject to the order, from the operation thereof"

(the reference to section 48(3) should be read as a reference to section 48(4).)

"(2A) The High Court may make an order under subsection (I), in relation to the forfeiture of an instrumentality of an offence referred to in schedule I or property associated with terrorist and related activities, if it finds on a balance of probabilities that the applicant for the order had acquired the interest concerned legally, and -

29. The first respondent's denial that she was aware of the drug dealing activities in the house and of the modifications to the house to facilitate the storage and concealment of drugs, rings hollow in the face of the following facts contained in the applicant's founding affidavit, which she did not deny;
29.1. She occupied the main bedroom on the top floor of the house. The bath in the en-suite bathroom to the main bedroom was installed in such a manner that it could be detached from the wall and on a number of occasions during search and seizure operations by members of the police, drugs were found concealed behind this bath;
29.2. On 23 October 2007 SAPS members searched the main bedroom and found tik, heroin, an electronic scale, bank bags and R6 120.00 in cash in the main bedroom;

29.4. On 22 October 2007 when the main bedroom was searched by members of the police, they discovered two bank bags of tik and a third bag with tik as well as heroin behind the trapdoor in the ceiling of the bathroom;
29.5. On 11 November 2008, the first respondent was arrested in the house after members of the police found tik in her handbag. At the same time of the police seized an electronic scale, R2 370.00 in cash and various other items that were found in (he house;
29.6. During the period 2005 to September 2009 at least 52 search and seizure operations were executed at the house by the police. Drugs such as tik, heroin and dagga, as well as large amounts of cash and items associated with the drug trade, were seized at or near the house;
29.7. On 4 October 2007 a notice was served on the first respondent informing her that illegal activities relating to drug dealing and stolen goods were taking place at the house. She was informed that should she fail to stop the use of the house as an instrumentality of these offences, the applicant may apply for the forfeiture of the house.

30.    I accordingly find that the first respondent knew that the house is instrumentality of an offence referred to in schedule 1 of the Act.

Proportionality

"... The Act requires property owners to exercise responsibility for their property and to account for the stewardship of it in relation to its possible criminal utilisation. The pursuit of those category objectives cannot exceed what is constitutionally permissible. Forfeitures that do not rationally advance the interrelated purposes of Chapter 6 are unconstitutional. Deprivations going beyond those that remove incentives, deter the use of property in crime, eliminate or incapacitate the means by which crime may be committed and at the same time advance the ends of justice are in our view not contemplated by or permitted under the Act"
Although I do not have evidence as to the present market value of the house, it was purchased in 2007 for R80 000.00. The money amounts to R12 320.00.
33. The evidence placed before me by the applicant and which was not denied by the first respondent, shows that the house was continually used as a basis for drug dealing activities and as a place where drugs were stored and concealed. Notwithstanding at least 52 search and seizure operations during the period 2005 to September 2009 at the house by the police, and the numerous arrests of the various people involved in the drug dealing activities, including second respondent and first respondent, these operations proved wholly inadequate to prevent the illegal drug dealing operations.

"[11] Where an offence has been committed in the course of a broader enterprise of criminal activity that is being conducted by the offender in association with others it can serve not only to inhibit the particular offender from continuing that activity but also to arrest a continuance of that activity by others who are party to the ongoing enterprise. And even where the offence committed in the course of an ongoing criminal enterprise that is being conducted by the offender atone the withdrawal of property is capable of having a severely inhibiting effect on its continuance. It seems to me, in other words, that forfeiture is likely to have its greatest remedial effect where a crime has become a business.

[12] Conversely, where the offence is not committed in the course of ongoing criminal activity, as in cases of the kind that are now in issue, the ordinary criminal remedies are quite capable of serving the purpose of deferring the commission of further offences, whether by the particular offender or by other offenders. If the sentences that are available to serve that purpose are inadequate it is open to the legislature to remedy that defect, but I do not think that forfeiture should be seen as a means of topping up' penalties that are imposed by a court.

Naturally, the approach that I suggest is not inflexible. There might be cases in which the offence, by itself falls within the second class that I have described, but where the circumstances in which it is committed call for something additional to the ordinary remedies to inhibit further offences."

37. In these circumstances I have come to the conclusion that the forfeiture of the house and the money will not be disproportionate to the purposes which POCA aims to achieve.

38. In her notice of appearance, first respondent stated that she has four minor children. At the time the letter constituting the notice of appearance was written, she was residing, with her children, in a different house together with her mother and other members of her family. Her complaint was that she was staying, with her four children, in one room.
39. In terms of section 28(1 Xc) of the Constitution, every child has a right to shelter. At the time when the forfeiture application was instituted, first respondent lived with her children in a room in another house in Mitchells Plain. I am consequently satisfied that if an order for the forfeiture of the house is granted, it will not deprive the children of a shelter.

40.1. In terms of section 50 of the Prevention of Organised Crime Act, 1948 (Act 121 of 1998):

40.1.1. the immovable property, erf 92700, Mitchells Plain, located at 4 Bontcbok Crescent, Eastridge, Mitchells Plain; and

40.2.1.	pay the cash amount of R12 320.00 and any interest earned thereon, after deducting his fees and disbursements as allowed by the Master of the High Court thereon, into the Criminal Asset Recovery Account, held at the Reserve Bank, Account No. 80303056;
40.2.2.	dispose of the immovable properly. Erf 22700 Mitchells Plain, located at 4 Bontebok Crescent, Eastridgc, Mitchells Plain, by public auction and to pay the proceeds of the sale, after deducting his fees and disbursements as allowed by the Master of the High Court thereon, into the Criminal Asset Recover)' Account, held at the Reserve Bank, Account No. 80303056.

40.3.	The first respondent is ordered to pay the costs of this application.