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National Director of Public Prosecutors v Abrahams and Another (21100/2009) [2011] ZAWCHC 355 (12 August 2011)

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JUDGMENT DELIVERED BY SMIT AJ

ON 12 AUGUST 2011

1. Applicant in this matter initially launched a preservation application against Respondents for an order in terms of section 38 of the Prevention of Organised Crime Act ("the Act") that a cash amount of R182 551,00 under the control of Sergeant Muller be preserved, pending the finalisation of forfeiture proceedings in this matter.

2. The preservation order was granted by Cleaver J on 13 October 2009.

3. Applicant thereupon launched the forfeiture application on 25 January 2010 for an order in terms of section 50 of the Act, declaring forfeited to the State the sum of R182 551,00 seized on 13 March 2009 from 60, 18^th Avenue, Elsies River, Cape Town ("the premises").

4. The relevant facts relied upon by Applicant in support of the application were the following:

4.1. On 13 March 2009 members of the SAPS received information of illegal trading in drugs and alcohol at the premises.

4.2. Members of the SAPS went to the premises, where they noticed First Respondent throwing a plastic bag, containing six Mandrax tablets, over the wall.

4.3. The SAPS thereafter searched the premises and found plastic sachets containing 100 Mandrax tablets and a box containing R182 551,00 in cash, which consisted of R7 401,00 in coins and R175 150,00 in notes.

4.4. Four days after the seizure of the drugs and cash, Second Respondent deposed to an Affidavit stating that R150 000,00 belonged to him. He alleged that the money formed part of Rl,7m that he received from the sale of his business premises and that he paid a sum of R650 000,00 into his bank account.

4.5. According to Second Respondent, he withdrew money systematically and handed R150 000,00 to Ronald Hendricks ("Ronald"), who resided at the premises for safekeeping in his safe. When Second Respondent needed the money to pay the deposit on a property which he had purchased, he was informed by Fernando Fredericks (Ronald's son) that the money had been confiscated.

4.6. On 8 December 2009, First Respondent was acquitted on charges of illegal dealing in drugs and obstructing the course of justice.

4.7. In the meantime, Inspector Le Grange established that, during the search and seizure operation on 13 March 2009, members of the SAPS also found a large quantity of alcohol on the premises and arrested one Andre Lebonba for illegal dealing in intoxicating liquor.

5. Applicant filed an Affidavit by the said Inspector Le Grange, from which it appeared:

5.1. that the premises was registered in the name of Ronald and his wife, Audrey;

5.2. that a second docket was opened in respect of the liquor seized from the premises on 13 March 2009;

5.3. that Inspector Ivan Andries, who seized the liquor on the premises on 13 March 2009, with the assistance of other members of the SAPS, noticed that members of the public were consuming liquor on the premises and that there was a price list of alcohol on the wall and lots of liquor in the fridge. He arrested Labonba when the latter could not produce a licence to sell liquor;

5.4. that the criminal case against Labonba was provisionally withdrawn on 1 December 2009 for further investigation and to include Ronald as a co-accused.

6. Inspector Ivan Andries confirmed in an Affidavit that the premises was unlicenced, that it was fitted out like a shebeen that he confiscated a large amount of liquor.

7 In an Affidavit by Sergeant Muller, who took possession of the money and drugs which were confiscated, he declared that the money was contained in six separate bags that contained the following denominations:

7.1. R118 600,00 in notes;

7.2. R56 550,00 in notes;

7.3. R3 166,00 in coins;

7.4. R2 091,00 in coins;

7.5. R1 599,00 in coins;

7.6. R545,00 in coins.

8. An Opposing Affidavit was filed by First Respondent in which he denied that the drugs were his and that the R182 551,00 in cash confiscated by the Police on 13 March 2009 were the proceeds of criminal activities.

He contended that he had read the Affidavit by Second Respondent and believed that his version of the ownership of R150 000,00 was true and that the balance of the cash must be the property of the owners and was not his.

9. Second Respondent deposed to an Opposing Affidavit in which he
declared, inter alia:

9.1. that he denied that he was involved in illegal activities that could form the basis of confiscation of the R150 000,00 which was his property;

9.2. that he confirms that Ronald was the co-owner of the premises and that he kept R150 000,00 in cash in his house, which he gave to Ronald to pay to attorneys for purposes of payment for another property which had subsequently been transferred into his name;

9.3. that, on the day after the money had been confiscated, he asked Ronald's son, Fernando, where the funds were which he had to pay the transferring attorneys on 14 March 2009, whereupon Fernando informed him that the Police had raided the premises on the previous day;

9.4. that he gave the R150 000,00 in cash to Ronald, his brother, as he was working outside of Cape Town;

9.5. that he sold a property of Rl,7m and received R650 000,00 in cash from which he reserved R150 000,00 to pay for the property that he subsequently bought;

9.6. that he telephoned Ronald on 13 March 2009 and informed him that he would need the money the next day, whereupon Ronald replied that he would send Fernando with the money the next day.

10. Ronald Hendricks deposed to an Affidavit in which he stated:

10.1. that Second Respondent gave him the R150 000,00 in cash which he kept in a cupboard in his room;

10.2. that Second Respondent asked him to give the money to the attorney on Saturday, 14 March 2009, in the event that he would return to Cape Town on a later date;

10.3. that he asked his son, Fernando, to give the money to an attorney on 14 March 2009, as he went to an agricultural exhibition in Swellendam on Friday, 13 March 2009.

11. Mr Titus, who appeared on behalf of Applicant:

11.1. conceded that Applicant initially based his case on the proposition that the cash was the proceeds of illegal drug trading;

11.2. contended that the more probable source of the cash was the illegal trade in liquor, which only came to light when it was established that a large quantity of liquor had been confiscated on 13 March 2009, as set out in paragraph 4.7 above;

11.3. pointed out that it was common cause that the cash was found in the premises on 13 March 2009 in denominations which did not accord with Second Respondent's version that R150 000,00 was being kept for him as a deposit which had to be paid to the unknown attorney;

11.4. argued that the acquittal of First Respondent on the charges of drug dealing and obstructing the course of justice is of no relevance in this matter which deals with the cash which was admittedly confiscated on the premises on 13 March 2009;

11.5. argued that section 37 of the Act provides that the rules of evidence in civil proceedings apply to these proceedings and that Applicant had to prove its case on a balance of probabilities;

11.6. argued that the version of Second Respondent, who produced no documentary proof or other cogent evidence in support of his assertion, was so improbable that it could not be accepted by the Court;

11.7. argued that the cash was probably the proceeds of the alleged trade in liquor, especially in view of the fact that Ronald did not give a satisfactory and acceptable explanation of when and how he received the cash and did not lay claim to the difference between the amount confiscated and the R150 000,00 allegedly paid to him by Second Respondent.

12. Mr Smith, who appeared on behalf of Second Respondent:

12.1. contended that there was no proof that the cash emanated from an illegal source;

12.2. relied heavily on the acquittal of First Respondent on the charges and even submitted a copy of the criminal proceedings with his Heads of Argument;

12.3. submitted a bank statement in respect of Second Respondent's bank account with his Heads in respect of the period 5 February to 3 May 2008, which reflected a credit of R650 000,00 on 7 February 2008, but did not reflect a withdrawal of R150 000,00 and was in debit on 2 April 2008.

13. Mr Titus contended that the bank statement and the Record of the Court proceedings filed with the Heads of Argument were not admissible evidence. I agree with his submission in this regard, but do not consider it necessary to make a finding in regard thereto.

14. I agree with the submissions made by Mr Titus and find:

14.1. that the version of Second Respondent is so improbable that it cannot be sustained;

14.2. that the fact that a shebeen was being conducted on the premises when the cash was confiscated, leads to the conclusion that the cash was probably the proceeds of the illegal trade in intoxicating liquor;

14.3. that the latter conclusion is fortified by the fact that Ronald gave no explanation concerning the origin of the cash and especially the cash in excess of R150 000,00.

15. I accordingly conclude that Applicant is entitled to the relief claimed by it and accordingly grant the following order:

15.1. The cash amount of R182 551,00, currently under the control of Sergeant Warren Osmund Muller, a member of the South African Police Services attached at the Chemistry Unit of the Forensic Science Laboratory in Delft, is declared forfeit to the State in terms of section 50(1) of the Prevention of Organised Crime Act, No 121 of 1998 ("the Act").

15.2. Ricardo Reginald Rhoda is authorised to uplift the money from the Forensic Science Laboratory and to deposit it into the Criminal Assets Recovery Account, established under section 63 of the Act, with Account Number 80303056 held at the South African Reserve Bank, Vermeulen Street, Pretoria.

15.3. The Registrar of this Honourable Court is directed to publish notice of this order in the Government Gazette as soon as practicable after the order is made.

15.4. Second Respondent has to pay the costs occasioned by his opposition to the application for the forfeiture order.

SMIT AJ