POCA and SIU

Facts and issue: The National Director of Public Prosecutions, the applicant, obtained a provisional restraint order pursuant to the provisions of s 26 of the Prevention of Organised Crime Act 121 of 1998 (POCA) provisionally restraining the assets of the accused in the criminal proceedings, including those of the third defendant. The third defendant is Islandsite Investments, a company in business rescue. Islandsite and the BRPs contend that the restraint proceedings against Islandsite have been concluded because of the acquittal of Islandsite by the learned judge a quo. The applicant argues otherwise based upon the principle that there is a pending application for leave to appeal. The applicant therefore seeks the dismissal of the points of law raised by Islandsite and the BRPs and confirmation of the provisional restraint order.

Discussion: The judgment turns on the interpretation of the s 17(a) of POCA. The nature and the tenor of the evidence disclosed by the applicant evidently demonstrated that there are reasonable grounds for believing both that the defendants may be convicted and that a confiscation order may be made. Counsel on behalf of Islandsite and the BRPs argued that where the trial court has found an accused (defendant) not guilty in the criminal proceedings it has established, on a standard of proof higher than that prescribed in Chapter 5 of POCA, and in effect beyond reasonable doubt, that there is no reasonable possibility of a conviction against the defendant. Islandsite and the BRPs therefore contend that having regard to the lowest threshold of proof for granting a restraint order, it would result in POCA having unconstitutional application when innocent persons are deprived of their property if s 17 of POCA is interpreted to mean that the provisional restraint order is to be confirmed or extended pending the hearing of the appeal in the criminal matter.

Findings: Section 17(a) like s 17(b) is not satisfied when a court of first instance makes an order contemplated in the subsection. It does not apply only to a court of first instance. Therefore, if an appeal is pending, the provisions of s 17(a) are not triggered. The word ‘acquitted’ refers to a final order of acquittal, not an order which is subject to a pending appeal. Having regard to the language used, the context in which the provision appears and the purpose to which it is directed, leads to a finding that it would not be in the interest of justice to set aside the restraint order pending the appeal by the applicant in the criminal matter. The purpose would be defeated if the applicants ultimately succeed with the pending appeal. The points of law raised by Islandsite and the BRPs are without substance.

Order: The legal point raised by the defendants is dismissed with costs.

Facts and issue: In terms of section 26 of the Prevention of Organized Crime Act 121 of 1998 (POCA), the applicant obtained a provisional restraint order against the defendants, coupled with a rule nisi calling upon the defendants to show cause why the order should not be made final. Having obtained orders confirming the rule nisi against the fourth and fifth defendants, the applicant seeks the confirmation of the restraint order against the first, second and third defendants. There is no evidence on behalf of these defendants before the court.

Discussion: SAPS awarded a contract valued at R486,000 to Black Rebel. Sizani was the central figure in the award of the contract. She authored the document that was a formal request for the procurement of A4 size DL (Z fold). Since the estimated cost for the delivery of the pamphlets was below R500,000, Sizane, in her affidavit, said it was not necessary to utilize a tender process, and sourced three quotations from three different compliant suppliers. Strangely, she did not remember how the three service providers were chosen. SAPS awarded Grey Apple a contract, valued at R476,250, to supply first aid kits. Before the award of this contract, Grey Apple did not trade. In this instance, the owners of the two other service providers, who competed with Grey Apple for the contract, stated that they were approached and persuaded by Tshepo to form companies and bid for the supply of first aid kits to SAPS. In the absence of any evidence to the contrary, there is merit in the assertion made by the applicant that the evidence indicates that:“Tshepo would complete documents on behalf of others without their knowledge or would use their information to complete documents on their behalf with their knowledge and in so-doing manipulating the allocation of the tender allocation.” Moreover, since Tshepo “(through Shezi) knew the procedures and methodology used by SAPS,” he could manipulate the process to get the contracts.

Findings: The court cannot fathom a scenario in which Tshepo was not required to declare his relationship with Shezi or at the very least his knowledge of Sizane. The conclusion is inescapable that the defendants did not want to take the SAPS into their confidence. Tshepo supplied false information to SAPS. The applicant alleges that a corrupt relationship existed between Shezi, Tshepo, Black Rebel, Grey Apple and one of the service providers of TMS Bayard. The evidential burden placed on the applicant is so low that it would be impossible to rebut it without tendering any evidence. On the available evidence, the court is persuaded that there are reasonable grounds for believing that a confiscation order may be made against the defendants.

Order: The provisional order is confirmed with costs.

Facts and issue: This is the extended return day of a provisional restraint order and associated rule nisi made in terms of s 26(3)(a) of the Prevention of Organised Crime Act 121 of 1998. The defendants are the accused persons in a prosecution which has been instituted by the State. The trial has not yet commenced. It is the applicant’s case that a successful prosecution will result in a confiscation order or orders. The defendants launched an application to vary the provisions of the provisional order.

Discussion: In their applications the principal relief sought is the amendment of the provisional order so that it limits the amount or value to be restrained to R47 million. In both applications relief is also sought releasing certain respondents from the operation of the provisional order altogether. Certain of the Madhoe parties launched similar variation applications directed also at the provisional order. They sought the discharge in its entirety of the provisional order insofar as it relates to the first and third defendants and the first and third respondents.  The applicant has objected to these variation applications upon the basis that there is no provision in the Act for the amendment of a provisional order. The objection was well taken. In terms of s 26(10)(a) of the Act, the court which has made a “restraint order” may on application by a person affected by the order vary it or rescind it if it is satisfied on both of two requirements. The scope for variation of a restraint order under s 26(10)(a) is therefore restricted.

Findings: None of the defendants has achieved any success in opposing the confirmation of the provisional restraint order in its original form. The applicant complains that the allegations made in the founding affidavits in the variation applications do not speak directly to any of the allegations made in the founding papers which generated the provisional restraint order. There is no reference to any of the paragraphs in the founding papers. It was not therefore possible for the applicant to discern the precise scope of the challenge to the allegations made in the original founding papers. The product of the approach followed by the various applicants for variation orders is properly described as a mess. The variation applications were not competent and must be dismissed.

Order: The applications to vary the provisional restraint order are dismissed with costs.

Facts and issue: This is an application for the contempt on an order of the Tribunal. It is brought by Cassim (curator) against the respondents. A review application culminated in a judgment and forfeiture order. As part of the consequential relief, the preserved assets and assets subject to the interdict were declared forfeited to the State. The curator alleges that in terms of the forfeiture order, Mr Ndlovu and several respondents in the review application were ordered to surrender the forfeited assets to the curator. He further alleges that the Ndlovu respondents and Akanni are in contempt of the forfeiture order as they have failed to surrender several forfeited assets to him.

Discussion: The Ndlovu respondents dispute that the AMG and wristwatches fall within the scope of the forfeited order. They contend that only the assets referenced in paragraph 7 of the forfeiture order constitute forfeited assets. Mr Ndlovu also contends that he is unable to handover the Scania trucks to the curator because the Scania trucks do not belong to him, and he does not know their whereabouts. The curator contends that these assets ought to have been surrendered to him as part of the SARS order. They were preserved pending the review application. The SIU contended that the free assets were derived from the proceeds of the impugned transactions. Therefore, the free assets fall to be recovered by the SIU and declared forfeit to the State in terms of the forfeiture order sought in the review application. Nowhere in any of the application in terms of the forfeiture order has the curator shown that the AMG and wrist watched were acquired from proceeds from the impugned transactions. He has therefore not established that these assets were forfeited in terms of the forfeiture order.

Findings: The SARS order preserved all the assets of the Ndlovu respondents. The basis for the SARS preservation order was the Ndlovu respondents tax liabilities. Hence, in terms of that order, all assets of these respondents were preserved. Mr Ndlovu acquired the trucks with proceeds from the impugned transactions. They do not belong to Akanni. Mr Nldovu has not sustained the basis on which he refused to hand over the Scania trucks to the curator. Mr Nldovu has failed to comply with the forfeiture order. The curator has established beyond reasonable doubt that Mr Ndlovu’s non-compliance with the forfeiture order is wilful or mala fides. Mr Ndlovu has not disputed that he made an undertaking to hand over or provided the location of the Sania trucks during a meeting. It is clear from the issues he raises that he not only reneged on his undertaking, but he has also misled the curator and has no intention of complying with the forfeiture order to the extent it applies to the Sania trucks.

Order: The first respondent is declared to be in contempt of the judgment of the Special Tribunal. The first respondent is committed to prison for a period of 30 days.

Facts: The appellant, SIU, claimed payment of R92,487,183,12 from the first respondent, Kwane, and the second respondent, Mlonzi, a director of Kwane, jointly and severally. The claim arose from a hire purchase agreement (HP agreement) that had been concluded between Kwane and the municipality in respect of the purchase of road construction vehicles and plant and equipment which the SIU contended had been unlawfully concluded and was therefore void, ab initio. Pursuant to the HP agreement, the white and yellow plant (referred to jointly as the fleet plant and equipment) had been duly delivered to the municipality and it had the use and enjoyment thereof for more than two years before the SIU advised that the transaction was unlawful. It was accordingly cancelled, and the fleet plant and equipment repossessed. The amount claimed represented the sum paid by the municipality, in terms of the HP agreement, during this period.

Appeal: The High Court dismissed the SIU’s claim and refused an application for leave to appeal. The appeal is with leave granted on petition to the Supreme Court of Appeal. The fleet plant and equipment were received and used by the municipality. Kwane provided staff and training to operate the plant, and additional staff were employed. The initial payment, which had not been budgeted for, was made from cash reserves held by the municipality, and Mr Socikwa said that he performed a juggling act, moving money from one vote to another to provide for the running costs. It was nearly two years later when newspaper articles began to circulate that questioned the lawfulness of the transaction. The President issued a proclamation that authorised the SIU to investigate the matter. They conducted various interviews, which led them to conclude that the municipality had not engaged in a competitive tender process, but rather had purported to rely on a deviation provided for in regulation 32 of the Supply Chain Management Regulations (SCM regulations).

Discussion: The trial court appears to have been influenced by the fact that the municipality wanted to purchase both white plant and yellow plant under a single HP facility. Save for considerations of convenience, no compelling reason was advanced for this requirement. What the trial court failed to recognize is that custom designed contracts are the most common strategy to defeat competition. In essence, what the municipality sought was finance to obtain the fleet plant and equipment. The evidence did not establish any material financial benefit that could arise from a single contract as opposed to two separate contracts. In terms of the municipal SCM policy, even if a deviation has been decided upon, advance notice must be published for fourteen days to ensure transparency and fairness. That did not occur. The SCM policy requires minutes to be kept of the negotiations which occurred. While this is merely a formal requirement for record purposes, it is significant that no record of the negotiations was produced.

Findings: By virtue of the conclusion to which the trial court came, it did not consider an appropriate remedy under section 172(1)(b). The SIU provided a hypothetical calculation to demonstrate that Kwane had derived exorbitant profits from the HP agreement. Mr Dörfling did not challenge the arithmetical correctness of the calculation, but effectively demonstrated what he contended to be material flaws in the underlying assumptions made in the calculation. On behalf of Kwane, evidence was led in support of the contention that the assumptions underlying the SIU’s calculation were significantly flawed. The trial court had no regard to these provisions of the SCM policy and it erred in concluding that rational and verifiable reasons had been advanced to justify a conclusion that Kwane was the sole provider able to provide the finance that the municipality sought. The HP agreement was unlawful and inconsistent with the Constitution, both for its failure to comply with the MFMA in respect of the budgetary requirements and with section 217 of the Constitution and the SCM policy. The consequences thereof are that the agreement is invalid, in terms of section 172(1)(a) of the Constitution, and must be set aside.

Order: The appeal is upheld with costs. The hire purchase agreement is declared to have been unlawful and void ab initio. The matter is referred back to the trial court to hear further evidence and argument in respect of an appropriate order to be made in terms of section 172(1)(b) of the Constitution.

EKSTEEN J (ZILWA J and POTGIETER J concurring)

Facts and issue: This is Part B of an application by the trustees. They seek an order in terms of section 53(3) of the Prevention of Organised Crime Act 121 of 1998 rescinding the forfeiture order granted by default, for the forfeiture of an immovable property, being a farm, held in the name of the trust. The NDPP alleged that, in their application to the Department for the Land Redistribution for Agricultural Development grant, the trustees had acted unlawfully by making misrepresentations to the Department, resulting in the award of the grant to the trust. The award was applied, among other things, to the acquisition of the property.

Discussion: The forfeiture order was granted on the grounds that there was evidence on a balance of probabilities that the property was the proceeds of the trustees’ misrepresentations. The LRAD programme covers farm acquisition costs or costs for acquiring shares for the qualifying beneficiaries who are primarily persons that are unable to make a significant own contribution and require a top-up grant to cover the farm purchase. To qualify for an LRAD grant, applicants must make a so-called ‘own contribution’ to the farming project. The application made by to the Department by the first applicant and Damonse recorded that the number of persons who would benefit from the project would be forty-nine adults from five households: twenty-five women, seventeen youths, seven pensioners and twenty unemployed people, and that each would contribute R13,000 as ‘sweat equity’. They recorded, among other things, that the applicants had employment experience of different aspects of small-scale farming and commercial farming activities, and that the majority had worked most of their lives in the agricultural sector. In all, a picture was sketched of a feasible and potentially successful farming enterprise.

Findings: The applicant’s founding affidavit simply did not address the allegations that beneficiaries signed up to become ‘silent partners’ of the Klaase family, and that the Klaase family always intended to buy out the other beneficiaries of the trust who were not willing and interested in the farming as soon as the farm reached beyond the breakeven point. He had thereby admitted to undermining the purpose of LRAD grants, which is to discharge the Department’s responsibility to redistribute productive commercial agricultural farmlands to previously disadvantaged individuals. The applicants’ founding affidavit did not adequately set out a bona fide defence against the allegations of fraud. Their prospects of success are poor. The applicants have not demonstrated good cause for rescission.

Order: The application is dismissed.

Facts: The three sets of applicants in this consolidated application are victims or participants in an unlawful multiplication scheme that was led by Mfundo Manci utilizing his entity Crypto Mzansi Group. He ran a classic Ponzi scheme, operating mainly in the greater Durban area. Business was solicited in the main through social media platforms that encouraged investments by promising abnormally large returns on these investments, often in excess of 1,000 percent. The applicants were lured into the investments by social media showcasing that Manci was capable of achieving returns on their investments that were extremely attractive, actually unparalleled, and in hindsight obviously unattainable. Manci fled and remains a fugitive from justice.

Application: An application by the NDPP was successful in preserving various accounts of Manci and the accounts of Crypto Mzansi Group. The total amount preserved was R4,547,820.47. The NDPP later obtained an order in terms of section 53 of the Prevention of Organised Crime Act 121 of 1998 (POCA) to have the preserved property forfeited to the State. The applicants brought an application seeking to vary the forfeiture order and sought an order excluding the amounts that they had paid to Manci’s entity from the forfeiture order.

Discussion: The applicants submit that the property is of lawful origin and reflects the personal savings and money of the applicants or money legally obtained. They contend that they are not criminals and that there are no charges pending against them, and that they are the victims of the crime committed by Manci and they are not akin to co-perpetrators. A key thrust of the argument of the applicants is that the statements they made to the police as victims or complainants are the same affidavits used as the underpinning factual matrix in the preservation and forfeiture orders. The NDPP argues that multiplication or Ponzi schemes of this ilk are unlawful, and the applicants in all likelihood knew, or ought to have known, that this was an illegal multiplication scheme, considering the return of investment promised. The very high percentage return on investment was the kind of return impossible to attain lawfully.

Findings: Section 43 of the Consumer Protection Act 68 of 2008 deals with pyramid schemes and section 43(3) with multiplication schemes in particular. Participation in these schemes is illegal and subject to criminal sanction. It is an offence merely to participate and it is not in issue that the applicants participated. The property or money the applicants invested was self evidently an instrumentality of the offence by Manci. It was not necessary that the applicants be criminally charged. Forfeiture is not founded on the basis of a conviction or even of a charge being preferred in a criminal trial; it suffices that the funds were an instrumentality of the crime. There is a clear dispute of fact as to the knowledge that the applicants had in respect of the unlawful nature of the scheme. The applicants chose to proceed on motion proceedings and must endure the consequences.

Order: The application for variation of the forfeiture order in all three applications is dismissed. There is no order as to costs.

DAVIS AJ

Facts and issue: Application for reconsideration and/or recission of the preservation order that was granted. The notice of motion also contains prayer for condonation of the late filing of the reconsideration or rescission application. The preservation order was granted in terms of the provisions of section 38(1) of the Prevention of Organised Crimes Act 121 of 1998 (POCA). The applicant, Mr Pule, had his property, a motor vehicle, preserved on account of the impugned order.

Discussion: The applicant stated that he was approached by a man called Mazibuko to assist him with transport. He indicated that the said Mazibuko asked for his assistance to transport building materials from town. He said that on their arrival at a hardware store in town, they greeted security officers that they found at the premises. Mazibuko then took keys out of his pockets and opened the shop, and they began to load building materials onto the bakkie. While they managed to load the building materials onto the bakkie, they did not manage to drive away with it as a security officer approached them to enquire as to who had authorised them to load the material. The security guard called the owner of the hardware store. Upon arrival at the business premises the owner confirmed that he was unaware of building material that was to be taken away from the hardware store. The applicant was then arrested and taken to the police station. The nub of the applicant’s defence is that he too was a victim of a crime that was orchestrated by the said Mazibuko. He was not aware that Mazibuko was using him to transport stolen building material from the hardware store. In other words, he lacked the necessary dolus to commit a crime.

Findings: It has been established that the motor vehicle concerned was used as an instrumentality of crime. This is common cause as Mr Pule himself accepts it. Mr Pule sought to explain how the motor vehicle came to be involved in the attempted theft of building materials which were being loaded onto his bakkie. Having regard to the facts and the principle that there should be a close connection between property and crime, there can be no controversy as to the fact that Mr Pule’s vehicle was used as an instrumentality of crime. The connection between the property and the crime is palpable. POCA permits such cases to be ex parte and in camera. The NDPP was and still is entitled to the preservation order. The NDPP has satisfied the test in POCA for the preservation of property that was used as an instrumentality of crime.

Order: The application is dismissed.

Facts and issue: This case was instituted by the National Director of Public Prosecutions (NDPP) predicated on the provisions of section 26 of the Prevention of Organised Crime Act 121 of 1998 (POCA) to restrain identified properties in the hands of the respondents. The application served ex parte, and a restraint order (rule nisi) was granted in favour of the NDPP. What lies at the center of the case is the question whether the restrained order ought to be confirmed or discharged.

Discussion: The NDPP accuses the defendants of fraud and/or theft by false pretence. Thus, apart from mentioning the fact that the respondents were arrested and are still facing prosecution, the NDPP’s case is that they allegedly benefitted from unlawful activities committed to the detriment of the Department. The respondents are accusing the NDPP of abuse of authority. They allege that the Director of Prosecutions had on two previous occasions declined to initiate prosecution of the case. The NDPP may apply ex parte for a restraint order against assets that POCA defines as realisable property and pending the finalisation of the criminal prosecution and the granting of those orders. Criminal prosecution is the first jurisdictional requirement in terms of section 26 of POCA. The court may grant a provisional restraint order coupled with a rule nisi, to allow the defendant to answer the NDPP's application for restraint, while the realisable property is secured.

Findings: The respondents contend that the actions of the NDPP amount to abuse of power. They base this contention on historical facts, whereby on two occasions the DPP had declined to prosecute the case against them. Since then, however, someone else with authority saw the matter differently and decided to institute prosecution, hence the respondents have been facing criminal charges before the Specialised Commercial Court. The fact that there were previous decisions declining to prosecute is not to be equated to an autrefios acquit which would have meant that the person affected may not be tried a second time for the same offense. There is no reason to, at this juncture, disturb the preservation order that was granted against the defendants’ properties. The provisional order must be confirmed, and the properties shall remain under preservation.

Order: The provisional order and rule nisi issued are confirmed.

Facts and issue: The Special Investigating Unit (SIU) seeks an order confirming a rule nisi granted on 4 September 2020. Legodi is the only respondent who opposes the application. The nature of the relief sought against Legodi is an order for interdictory relief to prevent and restrict the payment of pension benefits that stand to his credit with the Retirement Fund pending the final determination, including all appeals, of the action the SIU instituted against Legodi. The primary issue to be determined is whether Legodi has shown cause why the rule nisi should not be confirmed.

Discussion: The SIU’s case is based on Tribunal Rule 23 (1) read with Tribunal Rules 23(2) and 26. Legodi has not attacked the constitutionality on these rules. The statutory basis for these rules in s 8 of the Special Investigating Unit and Special Tribunals Act, the constitutionality of which Legodi has also not attacked. The Tribunal’s interdictory powers in terms of s8(2) are wide enough to include the order sought. Legodi’s defence to the prima facie right requirement is that the SIU has failed to set out a winnable case. The only defence Legodi raises is that the ministerial directive, in the amount of R100 million, authorised him to procure services in the excess of R2,1 billion, without following the applicable procurement prescripts. LNW was the implementing agent and was duty bound to follow the procurement prescripts which included the LNW Supply Chain Management (SCM) Policy. Contracts concluded contrary to procurement legislation and regulations are wholly invalid. Unless the Tribunal finds that it is not just and equitable to set aside, it cannot be allowed to stand.

Findings: Legodi’s allegation that the SIU has failed to disclose to this Tribunal that he disclosed his assets to the SIU is not a valid ground of opposition because the non-disclosure is not material as it would not have thwarted the SIU’s quest for the ex parte interdict if disclosed. He disclosed assets far below the amount the SIU seeks to recover in the action. Legodi has failed to refute the basis set out by the SIU to satisfy the requirements of a reasonable apprehension of harm, balance of convenience and alternative remedy. The prejudice the State stands to suffer if the pension benefits are released to Legodi far outweighs that to be suffered by him if it is not released. The SIU lacks an alternative suitable remedy to ensure that its full claim in the action is satisfied if a monetary order is granted against Legodi.

Order: The rule nisi is confirmed.

Facts and issue: The Special Investigating Unit (SIU) seeks to review and set aside various decisions in terms of which the Independent Development Trust (IDT) awarded the impugned tenders for want of compliance with the applicable procurement laws and regulations. It also seeks consequential relief. The SIU investigated maladministration in the awarding of the impugned tenders as allegedly authorized by the President of the Republic of South Africa.

Discussion: The SIU alleges that the contractual arrangement between DSC and IDT is unlawful because an organ of state may not exercise any power unless expressly provided for in law. There is no statutory provision that empowers DCS to appoint an implementing agent for its projects. IDT is required to invoke its emergency procurement provisions when DCS calls upon it to do so. The transfer of funds to IDT by DCS before any work is undertaken could constitute pre-payment, which is proscribed under National Treasury Regulations. IDT’s appointment constitutes fiscal dumping which is also proscribed under National Treasury Regulations. DCS provided IDT with a list of service providers to be appointed under the impugned tenders, ostensively dictating service providers to be appointed under the impugned tenders.

Findings: According to the SIU, the tender data as communicated to all bidders clearly stated that Professional Indemnity Insurance (PII) of R15 million was required as a pre-condition in order not to be disqualified, proof of the PII had to be attached to the bidder’s proposal. The evaluation sheet of the Secelec respondents shows that the evaluator was mistaken when he or she stated that these respondents complied with the R15 million threshold for the PII. Secelec, at the most, had an aggregate PII of R8.5 million which falls short of the R15 million required. Despite such shortage, it was not disqualified like other bidders. Even if this allegation is determined on Secelec respondents’ version as it disputes it, the impugned tender would not survive the review because of the other overwhelming irregularities.

Order: The decision to award the tenders is reviewed and set aside. The contract concluded is reviewed and set aside. The third to seventh respondent shall render the full accounts of all the payments they received under the tenders and reasonable expenses incurred under the tenders, supported by necessary accounts.

Facts: The second respondent (Ignatius Smith) is the owner of a riverfront property next to the Vaal River near Douglas, as well as a farm in the Douglas or Kimberley district, known as Koppiesdam. His son, Franco Smith (the first respondent), was noticed at the property and that a Ford was parked in the garage. A dead kudu, two warthogs and a blesbuck were seen in the back. Reports in the area were of a Ford bakkie being used for poaching. Further investigations resulted in Franco Smith and a Mr Hoogstaander being arrested, with the Ford and a rifle being seized by the police. They were charged in the Regional Court with three counts of contravention of the Northern Cape Nature Conservation Act 9 of 2009. Franco Smith pleaded guilty to the charges and admitted that the Ford and the Sako had been used during the commission of the offences. Ignatius Smith (his father) was not charged with any offence.

Application: Subsequent to these events, the NDPP applied to this court for a preservation of property order. The court later made a final preservation of property order in terms of section 38 of Prevention of Organised Crime Act 121 of 1998 (POCA) in terms whereof the Ford and the rifle were preserved. This is an application by the NDPP to have property belonging to Ignatius Smith declared forfeit in terms of the provisions of POCA. The property concerned are: a Ford Ranger 2,5 Single Cab-motor vehicle (the “bakkie”); and a .222 calibre Sako rifle (the Sako).

Instrumentality of an offence: The NDPP submits that the property ought to be considered as instrumentalities of an offence as: (i) the Ford was employed to drive to the places where the kudus were shot with the Sako, loaded onto the Ford and transported to Koppiesdam; (ii) the Ford and the Sako were used more than once for illegal hunting; (iii) the Ford was fitted with an LED light used to cast light toward the ground in front of the Ford so as not to be visible to other road users; (iv) they were directly linked to the carrying out of the offences, were not merely incidental to the carrying out of the offences, and formed part of the offences; and (v) Franco Smith could not perpetrate the offences without the property. The court is satisfied, on a balance of probabilities, that a sufficiently close link between the property and the offences committed has been established to warrant a finding that the Ford and the Sako are instrumentalities of the offences. The property facilitated or made possible the commission of the offences.

The innocent owner defence: It is not contentious that Ignatius Smith acquired ownership of the Ford and the Sako legally. What is in contention is Ignatius Smith’s assertion that he did not know nor had reasonable grounds to suspect that the property is an instrumentality. Section 52 of POCA casts an onus on the owner of the property concerned to prove certain facts on a balance of probabilities before the court can make an exclusionary order. To have discharged the onus, one would have expected of Ignatius Smith to have done more than merely giving Franco a stern talking to and to trust that Franco, as an adult, would not involve himself in any further possible offences. The law expected of Ignatius Smith to at least have investigated the allegations of poaching properly, and at the very least to have restricted Franco’s access to the means by which potential further offences could be committed. In the circumstances, Ignatius Smith unfortunately cannot avail himself of the innocent owner defence.

* The court discusses proportionality from para [29] and is not persuaded that the forfeiture of the property would be disproportionate. An order for forfeiture would serve the broader societal purpose of deterrence and would advance the ends of justice.

Order: In terms of section 50 of POCA, the Ford Ranger and the Sako rifle are declared forfeit to the State.

EILLERT AJ