POCA and SIU

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 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

Facts: The Regiments directors were indicted on various charges relating to corruption, money laundering and fraud. Transnet had paid the Regiments Group more than R1 billion arising from the alleged corruption and unlawful contracts. All of this is alleged to constitute the proceeds of crime. The High Court granted a provisional restraint order in respect of certain property owned by the Regiments directors and their co-accused, as well as the entities which hold properties on their behalf. The appellants were also cited as defendants in that matter and the order consequently also implicated their property. That order was discharged on the return date and the NDPP filed appeals against the discharge of the provisional order. The full court delivered its judgment in terms of which it upheld the appeals and confirmed the provisional restraint order, subject to a variation of the amount, and the exclusion of Regiments Capital, against whom liquidation proceedings had been instituted. The full court held that the appellants’ property (excluding that of Regiments Capital) should be included in the restraint order in terms of section 14(1) of the Prevention of Organised Crime Act 121 of 1998 (POCA).

Appeal: The crisp issue that falls for decision in these appeals is whether the appellants hold “realisable property” within the meaning of section 14(1) of POCA, on behalf of defendants cited in the restraint application brought by the NDPP in terms of sections 25 and 26. The three appeals were consolidated and heard simultaneously.

Discussion: This appeal concerns the circumstances in which a restraint order under sections 25 and 26 of POCA may be made in respect of property owned by a person other than a defendant, and must be determined in the context of the legal framework put in place in Chapter 5 of POCA. The material question is not who formally owns the property, but who controls it or has its use and benefit. Section 12(3) of POCA provides that a person will have benefitted from unlawful activities if he or she has received or retained any proceeds of unlawful activities. The appellants, other than the subsidiaries, rely to a greater or lesser extent on the existence of Mr Pillay and Mr Nyhonyha’s respective family trusts for the submission that their property is beyond the reach of the restraint order. The trustees of the family trusts say this is so because they are separate and distinct juristic entities. Ergold says this is so because its sole member is not Mr Pillay, but the Pillay Family Trust.

Findings: The appellants each put forward a narrow and decontextualised version of what they describe as the “Phillips test”, which they say limits the property which a defendant can be said to “hold” indirectly. The court agree with the NDPP’s submissions that the Phillips case does not support the approach of the appellants. The evidence does indeed make out a prima facie case that Mr Nyhonyha and Mr Pillay have control over the assets of each of the appellants, that they are the real beneficiaries of those assets and the income generated thereby, and that they have treated them as their own. In essence, Mr Pillay and Mr Nyhonyha’s argument is that the intercession of their family trusts places their shareholding in Regiments beyond the reach of the court and that an order restraining the assets of the trust is not permissible. Sophisticated criminals will rarely permit the benefits they obtain to be linked to them directly or hold their realisable assets in their own names. POCA recognises this and casts its net widely to answer the two questions. Did the defendants benefit? And do the defendants hold realisable property? If the legislation did not provide for the preservation of assets, the key purpose of Chapter 5 of POCA to “ensure that no person can benefit from his or her wrongdoing” could not be achieved. The NDPP has met the case she is required to make, namely, prima facie showing that the appellants’ assets are held by Mr Nyhonyha and Mr Pillay as envisaged by section 14(1) of POCA.

Order: The appeals are dismissed.

MOLEFE JA (NICHOLLS JA, WEINER JA, COPPIN AJA and SMITH AJA concurring)

Facts: The Department of Rural Development and Land Reform (Department), for which the Minister is responsible, controls, inter alia, land tenure reform, land development and land redistribution in terms of which it redistributes productive commercial land to previously disadvantaged individuals. Funds were provided for land to be registered in the name of a trust to be formed comprising 39 beneficiaries, who were previously disadvantaged individuals. As a result of fraudulent misrepresentations, the property was transferred to and registered in the name of a private company, CPAD Farm Holdings. A mortgage bond was registered in the Land Bank's favour and it had obtained default judgment against CPAD Farm for the capital sum advanced after CPAD Farms had fallen into arrears. Charges of fraud followed, as well as an application for the preservation of the property in terms of section 38 of the Prevention of Organised Crime Act 121 of 1998 (POCA). The High Court granted an order for the forfeiture of the property in terms of section 53(1)(a) of the POCA. At issue were the interests of the Minister and the Land Bank.

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Appeal: In an appeal to the full court, the Minister sought an apportionment of the proceeds of the sale of property between the Department and the Land Bank according to the capital losses they respectively sustained. The Land Bank sought orders amending the forfeiture order as it had asked the High Court for the proceeds of the sale of the property to be first apportioned to it and, in the event of any free residue after payment of its judgment debt and interest, for such residue to be paid to the Minister. The full court upheld the appeal and found that the Land Bank’s asserted secured entitlement to the property, upon which it relied for its contention that it enjoys a prior and stronger right than any rights which may have accrued to the Minister, was offset by section 57(2) of the POCA. The Land Bank successfully challenged the judgment of the full court on appeal in the Supreme Court of Appeal (SCA).

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Discussion: The SCA found that there was no legal basis for depriving the Land Bank of the preference provided by its real right or its secured claims for interest and costs; and that the Minister neither has a right to nor interest in the property on the facts of this case. The meaning of the word “interest” is pivotal in these proceedings. If the parties have an interest in the property as contemplated in the POCA, then they are each entitled to have their respective interests excluded in the forfeiture order. To that end, each party must, in terms of section 54(1) and (2), establish the nature and extent of its right, title or interest in the property and the time and circumstances of its acquisition. The interest will then be excluded from the forfeiture order under section 54(8), if it is found on a balance of probabilities that it was acquired legally and for a consideration and that its holder neither knew nor had reasonable grounds to suspect that the property in which it is held is the proceeds of unlawful activities – the innocent owner defence.

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Findings: The court cannot conceive a reason why an organ of State in the Minister’s position, which manages and disburses public resources in the exercise of a constitutional mandate to provide state grants for the purchase of the very property that is in contention in this matter, would be precluded from having its interest in that property excluded from forfeiture. The Land Bank’s real right in the property, as the mortgagee, entitles it to the reservation of the proceeds of the mortgaged property for the principal obligation owed to it to the exclusion of claims against the property at the instance of other creditors. It has a preferential right to secure the sale of the property under an order of court for the purpose of satisfying the debt owed to it. The common law principles and a ranking of the claims must apply in this matter. In light of the Land Bank’s status as a secured creditor, its full claim, ie, the capital sum, interest and costs, enjoy priority and rank first in respect of the apportionment of any sale proceeds of the property. The consequence of this apportionment is that because the outstanding debt to the Land Bank exceeds the amount of the sale proceeds, the Minister will receive nothing. The Minister’s view was that such an order would not be an empty one, as the recognition of her interest would create an important binding legal precedent in the State’s favour.

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Order: The appeal is partly upheld to the extent that the order of the SCA is amended to provide for certain paragraphs of the High Court order to be replaced with: “2. The interest of the first applicant, the Land and Agricultural Development Bank of South Africa, consisting of the debt secured by its mortgage bond over the property concerned is excluded from the operation of the forfeiture order. 3. The interest of the first respondent, the Minister of Rural Development and Land Reform, consisting of a grant allocated for the purchase of the property concerned, is excluded from the operation of the forfeiture order.”

MAYA DCJ (majority)

ROGERS J (dissenting) from para [71] and disagreeing that the Department has an “interest” in the property.

Facts and issue: The defendants filed an urgent anticipatory application to anticipate the return date for the purpose of discharging or varying the provisional order granted in favour of the NDPP. The respondents brought an urgent application after the NDPP obtained an order in an ex parte application for a provisional restraint against dealing with the assets of the defendants and the respondents and the order to disclose and surrender such property pending further order of this court.

Discussion: The submission made by Counsel for the defendants after the NDPP filed the answering affidavit changed the complexion of the defendants’ case. The non-disclosure or failure to put all facts before the court in the ex parte application in the POCA application was the highlight of the case. The NDPP’s response was that the ex parte provisions were carefully invoked because adequate good cause or reason has been shown for such an adopted procedure. Most of the NDPP’s argument was centered around the allegations of unlawful activities and the pending criminal casess faced by the defendants. There was no explanation tendered as to why certain information or facts were not disclosed in the ex parte application. The proposition by the NDPP that the history of the arrest and the striking off of the criminal case from the roll did not entitle the applicant to issue a Provisional Restraint Order because such history is irrelevant and misplaced. The legal principle in ex parte applications is that applicants in ex parte applications have a duty to be completely transparent and honest with the court. Any breach of this duty could lead to the dismissal of the application or adverse cost orders.

Findings: The non-disclosure of the outcome of the criminal proceedings against the defendant is material facts that should have been placed before the court so that the court can be able exercise discretion on whether or not to grant the restrained order. There is no good reason why the NDPP failed to disclose such information.

Order: The provisional order is discharged and set aside.

Facts and issue: The two appeals before the court emanates from the decisions of the Special Tribunal, in terms of Section 8(7) of the Special Investigation Units and Special Tribunals Act 74 of 1996. The appeal against the judgment and interlocutory order of the Tribunal appears under case number A14/2023 in this court (first appeal), and the appeal against the judgment and interlocutory order of 3 February 2023 falls under case number A68/2023 (second appeal).

First appeal: The main case before the Tribunal constitutes a judicial review of an alleged impugned decision taken in April 2022 by the Department. In this instance the SIU and the Department jointly sought judicial review of the Department’s decision. The decision taken by the CFO at the time concerned the acquisition of Covid-19 PPE from LNG (appellant). The respondents sought consequential relief in terms of Section 172(1)(b) of the Constitution which included an order directing LNG to disgorge its profits from the procurement. LNG requested the record of the impugned decision in terms of Rule 53(1)(b) of the Uniform Rules of Court. The Tribunal was of the view that it was appropriate to discover the record by virtue of Tribunal Rule 17(4) read with Uniform Rule 35. It is not in dispute that the appellant was furnished with the on two occasions. The record was furnished upon directions of the June 2022 order. As the record had already been furnished to the appellant, a judgment directing same would have no practical effect. The appeal therefore would thus have no practical effect. Accordingly, the first appeal is dismissed.

Second appeal: It appears that the appellant’s main contention is that the Tribunal pre-judged the matter which was not before it for determination. An understanding of the appellant’s argument is that the Tribunal could not have proceeded with the matter until this appeal court adjudicates and makes a finding in respect of the June 2022 order of the Tribunal. This brings into question whether the June 2022 order and judgment was suspended or not? The respondents argued that in terms of Section 18(2) of the Superior Courts Act, the interlocutory order did not have a final effect and consequently the order was not suspended. The Tribunal was bound by the Tribunal Rules unless it utilized Tribunal Rule 28(1) and invoked the Rule 53(1)(b) procedure. The Tribunal Rules clearly does not make provision for the filing of the record. The decision therefore could not be susceptible to an alteration by the Tribunal. There can be no doubt that the decision remained definitive of the appellant’s rights to gain access to the record in terms of Rule 53(1)(b). The Tribunal did not err in proceeding with the main application. It was entitled to execute the June 2022 order as the notice of appeal was not filed timeously. In the premises, the second appeal is dismissed.

Findings and order: The first appeal is dismissed. The second appeal cannot succeed and is dismissed. The June 2022 order could have been executed as there was no order suspending same.

Facts and issue: Appeal against a judgment of a single Judge of this Division. The Judge dismissed a restraint application brought by the appellant in terms section 26 read withs 25 of the Prevention of Organized Crime Act 121 of 1998 (POCA). SARS issued a final demand against the first respondent for the payment of arrears. After noticing that the first respondent had not complied with its tax obligations, SARS conducted criminal investigations with regard to outstanding PAYE payments.

Discussion: In the court a quo and in this court, the respondents argued that the restraint application is an abuse of POCA. The court a quo agreed with the respondents on most of the bases on which the application was resisted. It correctly found that the fact that a charge sheet had been issued and served does not on its own fulfil the requirement that someone will be convicted. A prosecution had been instituted against the respondents and the proceedings against them have not been concluded. The only issue is whether there are reasonable grounds for believing that a confiscation order may be made against any or all the respondents. The allegations regarding the theft of UIF charges are inadequate to sustain theft convictions. They allege that the 'accused unlawfully and willfully stole UIF contributions as payable to SARS. The sloppiness in drafting the charge sheet is not indicative of a weak case. The charges relating to respondent's failure to comply with the provisions of the Income Tax Act are not mentioned by the court a quo. There are also charges relating to non-payment of UIF and the SOL. The first respondent, at least, admitted that it did not comply with the provisions of the ITA, the Skills Development Levy Act and the Unemployment Contributions Act. A badly drafted charge sheet can always be amended before or during the trial. The badly drafted charge sheet is not indicative of a weak case. It is, rather, a display of prosecutorial ineptitude.

Findings: There are reasonable grounds for believing that the first respondent may be convicted and that a confiscation order may be made against it. The first respondent only owns one vehicle that is fully paid. The other vehicles are subject to finance agreements with financing companies. These companies' rights should be catered for.

Order: The appeal is partially upheld. The application in respect of the second and third defendants is dismissed. A final order is issued against the first defendant.

Facts and issue: The Special Investigating Unit (SIU) applies for an order interdicting Netshidaulu (first respondent) and Alexandra Forbes Retirement Fund (second respondent) from respectively accessing and paying Netshidaulu’s pension benefits, pending the outcome of an action the SIU intends instituting against him in the Tribunal within 90 days of the granting of the interim interdict. It has brought the application on notice to the respondents. It seeks the interdict on an urgent basis. The cause of the action the SIU intent pursuing against Netshidaulu is for damages LNW and DWS allegedly suffered because of Netshidaulu’s participation in a procurement process that led to a tender being unlawfully awarded to Blackhead Consulting

Discussion: The SIU has not made out a proper case for joining Alexander Forbes as the fifth respondent. The SIU’s alleged cause of action against Netshidaulu arises from his support for the request made by Mr Mulibana. The SIU’s explanation for the circumstances that render the application urgent is inadequate. In its founding affidavit, it fails to disclose to the Tribunal that it had informed Netshidaulu that it would institute the action against him by November 2021. The SIU accuse Netshidaulu of misrepresenting its undertaking. The SIU states that it had made it clear that the timeframe would change because its investigations are ongoing. This is a material non-disclosure, particularly because the SIU undertakes to bring the action within 90 days of an order. The quantity surveyor’s report is not an acceptable excuse for the dilatory conduct on the part of the SIU. The SIU does not need to quantify the alleged damages for its cause of action against Netshidaulu to be completed. The SIU continued to be dilatory after the urgency it relies on occurred. It has not explained two-week lapses between the briefing of its counsel, preparation, and finalization of the application. The SIU has failed to provide a full and sufficient explanation for the circumstances that render the application urgent. The urgency it relies on is self-created.

Findings: The SIU has failed to establish that if Netshidaulu accesses his pension benefits at this stage, the SIU will not be denied substantive redress in the planned damages action because it has not established the legal basis for its intended action against Netshidaulu. It has also not established that it has prospects of success. The double jeopardy ground of opposition is unsustainable. In terms of section 35(3)(m) of the Constitution, having regard to the context in which Netshidaulu seeks to raise it, the defence is only available to persons who are charged with a criminal offence. To succeed on this defence, Netshidaulu should have raised a res judicata special plea. Having failed to meet the low threshold of a prima facie right to the interim interdict even open to doubt, it follows that the SIU has not established a reasonable apprehension of harm if the interdict is not granted. For the same reason, balance of convenience in granting the interdict does not favour the SIU.

Order: The application is dismissed with costs.

Facts and issue: Application for the forfeiture of a motor vehicle which is the property of the respondent, and which property is in the possession of the applicant. Before applying for the forfeiture order, the applicant obtained a preservation order in respect of the motor vehicle concerned. The basis of the application for forfeiture is that the property was an instrumentality of certain offences. The offence with which the respondent was charged is illegal possession and transportation of stolen or suspected stolen goods.

Discussion: The applicant alleged that the offence of illegal possession and transportation of stolen or suspected stolen goods during the hijacking is listed as item 18 in Schedule 1 of the POCA as an offence and is the predicate crime which forms the jurisdictional genesis of this application. The respondent does not dispute this. The applicant alleged that the SAPS members stopped the respondent and were found in the possession of the stolen or suspected stolen goods. It is not in dispute that the respondent was found in possession of the stolen or suspected goods. The property was used to transport the stolen or suspected stolen goods at the time of the arrest of the respondent by the police. This proves a direct link between the crime committed and the property. There is sufficient evidence that the employment of the property was functional to the commission of the crime. The property facilitated or made possible the commission of the offence and was not merely incidental to the commission of the offence.

Findings: The applicant has proved on a balance of probabilities that the property was an ‘instrumentality of the offence’ of illegal possession and transportation of stolen or suspected stolen goods. The respondent’s version of events does not sustain a defence to the offence, nor has any of the evidence of the applicant been disputed by the respondent. The property was a substantial and meaningful instrumentality in the commission of the offence.

Order: The respondent’s property is declared forfeit to the State.