National Director of Public Prosecutions v Bhembe and Another (20307/2011) [2025] ZAGPPHC 1349 (10 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1349 | Noteup | LawCite sino index ## National Director of Public Prosecutions v Bhembe and Another (20307/2011) [2025] ZAGPPHC 1349 (10 December 2025) National Director of Public Prosecutions v Bhembe and Another (20307/2011) [2025] ZAGPPHC 1349 (10 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1349.html sino date 10 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case number: 20307/2011 In the matter between: NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant and BUSISIWE BHEMBE First Respondent FELIX BHEMBE Second Respondent Neutral citation: Coram: E Botha AJ Heard: 10 September 2025 Decided: 10 December 2025 Summary: ORDER The application is dismissed with costs. JUDGMENT E BOTHA AJ: # Introduction Introduction [1]             Inadvertently, this case causes one to ask questions about the challenges that crime prevention and prosecuting agencies have in an ever-expanding, technological world. It seems that despite the technological and other advances in crime prevention, investigation and prosecution, the advances are sometimes offset by the similar ingenuity or dissimilar brazenness of those who benefit from the proceeds of unlawful activities. [2]             The case also shows that, unless the advances in crime prevention, investigation and prosecution remain true to the age-old principles of investigation, those that centre on meticulous evidence collection and preservation, objective analysis and systematic inquiry, it is a losing battle. Finally, it shows that a person’s right to his property is not a right that is easily dislodged. This is true even where, at first, there is an appearance that the property may be the proceeds of unlawful activities. [3] The National Director of Public Prosecutions moves for a forfeiture order in terms of Section 48(1), read with Section 50(1) of the Prevention of Organised Crime Act. [1] The respondents, Mr and Mrs Bhembe, are the owners of the property in respect of which the order is sought. The respondents are married in community of property. They were charged with charged with theft and fraud in Swaziland, but more than 17 years after the events, nothing has come of it. [4]             On 20 April 2011 Mabuse J granted a preservation order in respect of the property on the usual, ex parte basis in terms of Section 38 and 74 of the Act. [5]             In short, the NDPP alleges that the forfeiture ought to be granted because an amount of R1,604,657.82, represented by the property, is the proceeds of unlawful activities. On the other hand, the respondents say that the NDPP fails to make out a case, inter alia because there is no link between the alleged unlawful activities and the property that forms the subject matter of the application. [6]             The case falls to be decided on two broad questions. The first is whether the preservation order and the publication of the notice of the order complies with the provisions of the Act. The second is whether there is a link between the property and the unlawful activities as alleged. # Prevention of Organised Crime Act Prevention of Organised Crime Act [7] In Mohamed [2] Ackermann J described the overall purpose of the Act as follows: ‘ A rapid growth of organised crime, money laundering, criminal gang activities and racketeering threatens the rights of all in the Republic, presents a danger to public order, safety and stability, and threatens economic stability. This is also a serious international problem and has been identified as an international security threat. South African common and statutory law fail to deal adequately with this problem because of its rapid escalation and because it is often impossible to bring the leaders of organised crime to book, in view of the fact that they invariably ensure that they are far removed from the overt criminal activity involved. The law has also failed to keep pace with international measures aimed at dealing effectively with organised crime, money laundering and criminal gang activities. Hence the need for the measures embodied in the Act.’ [8] The Act is divided into eight chapters, of which only two are relevant to the questions in this application: Chapter 1, containing provisions on definitions and interpretation, and Chapter 6, which concerns the civil recovery of property. In Mohamed, Ackermann J described Chapter 6 as providing for ‘ a complex, two stage procedure whereby property which is the instrumentality of a criminal offence or the proceeds of unlawful activities is forfeited. ’ [3] The first of the two stages that Ackermann J refer to is out in Part 2, which concerns the preservation of property, and the second is set out in Part 3, which concerns the forfeiture of property. Before addressing the provisions of Chapter 6 in more detail, it is beneficial to consider the difference between Chapter 5 and Chapter 6. [9] Chapter 5 confers a power on a criminal court to make a confiscation order against a person who has been convicted of a crime where the court has found that the person benefited from the crime. Once a person has been convicted, the prosecutor may apply for a confiscation order. In order for a confiscation order to be made, the court must find that the person convicted of the offence has derived benefit from the offence of which he has been convicted or a criminal activity that is sufficiently related to that offence. The court may then make an order that the person pay to the state any amount the court considers appropriate. A confiscation order is a civil judgment for payment to the state of an amount of money determined by the court and is made by the court in addition to a criminal sentence. Importantly, for the sake of understanding Chapter 6, the order that a court may make in terms of Chapter 5 is not for the confiscation of a specific object, but an order for payment of an amount of money. [4] [10] By contrast, Ackermann J explained: [5] ‘ Chapter 6 provides for forfeiture in circumstances where it is established, on a balance of probabilities, that property has been used to commit an offence, or constitutes the proceeds of unlawful activities, even where no criminal proceedings in respect of the relevant crimes have been instituted. In this respect, chap 6 needs to be understood in contradistinction to chap 5 of the Act. Chapter 6 is therefore focused, not on wrongdoers, but on property that has been used to commit an offence or which constitutes the proceeds of crime. The guilt or wrongdoing of the owners or possessors of property is, therefore, not primarily relevant to the proceedings.’ [11] More recently, in RO Cook Properties [6] the Supreme Court of Appeal held: [7] ‘ The purpose of Chapter 6’s forfeiture provisions is signalled in the part of the Act’s Preamble that states that “no person should benefit from the fruits of unlawful activities, nor is any person entitled to use property for the commission of an offence”’ [12] Against this background, one can turn to the two stages set out in Chapter 6, starting with Part 2, which concerns the preservation of property. [8] Section 38(1) provides that the NDPP may by way of an ex parte application apply to a High Court for an order prohibiting any person, subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with any property. Section 38(2) provides that the High Court shall make such an order if there are reasonable grounds to believe that the property concerned (a) is an instrumentality of an offence referred to in Schedule 1; (b) is the proceeds of unlawful activities; or (c) is property associated with terrorist and related activities. Only (b) is applicable here because, as stated earlier, the NDPP says the property represents the proceeds of unlawful activities. [13] The preservation order granted by Mabuse J on 20 March 2011 was granted in terms of Section 38(2), following the NDPP’s application in terms of Section 38(1). Once a preservation order is granted, there are procedures that have to be followed, to which I will return. [9] The preservation order expires ninety days after the date on which it is published, unless, amongst other possibilities, there is an application for a forfeiture order like this one pending before the High Court. [10] [14] This brings me to Part 3 of Chapter 6, which concerns the forfeiture of property. [11] It is only once a preservation order is in force that the NDPP may apply for a forfeiture order. [12] Hence the ‘ complex two-stage procedure’ referred to by Ackermann J. Section 48(1) provides that, if a preservation order is in force, the NDPP may apply to a High Court for an order forfeiting to the State all or any of the property that is subject to the preservation of property order. The remainder of Section 48 and Section 49 addresses procedural aspects that are not relevant here. Section 52 provides for instances where a person with an interest in the property may apply for an exclusion thereof. [15]         Section 50(1)(b) provides for forfeiture where it is established on a balance of probabilities that the property is the proceeds of unlawful activities. For the reason given earlier, paragraphs (a) and (c) of the subsection are not relevant to this application. [16]         It is the NDPP's case that the property represents ‘ the proceeds of unlawful activity’ as defined in Section 1 of the Act. It is defined as follows: ‘ Any property or any service advantage, benefit or reward which was derived, received or retained, directly or indirectly, in the Republic or elsewhere at any time before or after the commencement of this Act, in connection with or as a result of any unlawful activity carried on by any person and includes any property representing property so derived.’ [17]         The essence of what is required for a forfeiture of property is that the ‘ property ... was derived, received, or retained ... in connection with or as a result of any unlawful activity’ . It is this, the question whether the property was derived, received or retained as a result of the unlawful activity that is central to this application. # Proportionality Proportionality [18]         A discussion of the Act and Chapter 6 cannot be completed without a consideration of the effect of Section 25 of the Constitution and the right to property entrenched therein. [19] In ROCook Properties [13] the Supreme Court of Appeal performed an analysis of the purpose of the Act and the relevant provisions and the implications of the right to property. [14] It concluded: [15] ‘ ... the relationship between the purpose of the forfeiture and the property to be forfeited must be close, ... the purpose of the forfeiture must be compelling and ... a proportionality analysis – in which the nature and value of the property subject to forfeiture is assessed in relation to the crime involved and the role it played in its commission – may at the final stage in addition be appropriate.’ [20] In van der Merwe, Binns-Ward J explained it as follows: [16] ‘ By construing the applicable provisions in a manner that implies the requirement of a proportionality enquiry, the operation of the forfeiture provisions in a manner that could offend against s 25 of the Constitution is avoided.’ [21]         It is in this way that the courts have balanced the purposes of the Act with the individual’s right to property. The questions before the Court must be and are considered with this in mind, including with regards to the onus of proof. # Onus Onus [22] Section 37 provides that, for the purpose of Chapter 6, all proceedings under the chapter are civil proceedings and not criminal proceedings. The rules of evidence applicable in civil proceedings apply. In particular, the onus is on the NDPP to prove that the property constitutes the proceeds of unlawful activities on a balance of probabilities. [17] In van der Merwe Binns-Ward J held: [18] ‘ The NDPP is burdened with the onus of proving the entitlement to a forfeiture order pursuant to an application by that functionary in terms of s 48(1) of the Act. As is generally the position in regard to a true onus, the incidence of which is fixed by law, nothing in the character of the particular case can shift that onus to the other party.’ [23] The onus on the NDPP does not stop there. Binns-Ward J went on: [19] The ambit of the onus on the NDPP in all forfeiture applications, irrespective of whether or not the respondent claims an exclusionary order in terms of s 52, includes the onus of proving on a balance of probabilities that the remedy sought is proportionate, in the context of realising the objects of the Act, to the ends sought to be achieved by its grant – and therefor implication would not amount to an arbitrary deprivation of property.’ [24] Ms de Villiers, who acted on behalf of the NDPP correctly submitted on the basis that the normal principles applicable to motions, such as those in Plascon Evans [20] and Wightman are applicable to forfeiture proceedings. For this she also correctly relied on, amongst others, van der Merwe. [21] [25]         The parties are ad idem that this case falls to be determined on the question whether the NDPP has made out a case that the property is the proceeds of unlawful activities. They do, however, put the question slightly differently: Ms de Villiers submits the question is ‘ whether the property is or represents the proceeds of a crime or not’ , whereas Mr Dorfling SC, who represents the respondents, submits that the NDPP must ‘ demonstrate that the property is the proceeds of unlawful activities.’ There is a nuanced difference in the manner that the questions are posed, which is discussed in more detail later. # The NDPP’s Case The NDPP’s Case [26] The property that formed the subject matter of the application was described more fully in Annexure A to a draft order attached to the notice of motion: [22] ‘ 1.1   Erf 1[..] Unit 3[..], cnr L[..] and S[..], Kyalami Estate, Midrand 1.2    An Audi A4 with registration number V[...] GP. 1.3    An investment policy held in the name of Busi Bhembe with policy number 150[...] at Old Mutual, currently worth R121 700.00. 1.4    Education policy held at Liberty Life under account number 0015[...] in the name of Mr Bhembe. 1.5    A unit trust account with account number 83[...] held at RMB in the name of Mr Bhembe, with the current value of R 12 399.63.’ [27]         The allegations upon which the NDPP relies for the order are contained in a number of affidavits by a number of investigators, attached to the founding affidavit. They, in turn, rely on the result of their investigations, including some witness statements and a number of other documents that they were able to source during the course of the investigation. In some instances, the draw conclusions from the facts. [28]         The first respondent, Mrs Bhembe, was the executive director of a foundation called the Baylor College of Medicine Children’s Foundation (‘ Baylor’ ), situated in Mbabane, Swaziland. Baylor is under the control of a Board of Directors. Mrs Bhembe is married in community of property to the second respondent, Mr Bhembe. [29]         On 13 June 2008 Baylor entered into a contract with the National Emergency Response Council on HIV/AIDS (‘ NERCHA’ ). NERCHA was engaged in funding clinics in rural Swaziland for the treatment of paediatric AIDS diseases. NERCHA is also in Swaziland. [30] The contract is referred to as a ‘ Funding Agreement’ . In short, the purpose of the funding agreement was for NERCHA to provide funding for the strengthening of so-called Prevention of Mother-to-Child Transmission – clinics in rural settings. Baylor agreed to participate in the implementation of the project by serving as an implementing agent. NERCHA would provide Baylor with an amount of E1,418,152.00. [23] In terms of the contract, Baylor undertook to utilise the funds only for the purpose for which they were provided, and supported by sound financial and administrative systems. Mrs Bhembe signed the contract on behalf of Baylor. It must be said that the contract is very vague on the detail of Baylor’s obligations. Against this background, Ms de Villiers provided an accurate summary of the NDPP’s case as it appears from the NDPP’s papers. [31]         On 4 July 2008 Baylor received an amount of R1,403,050.62 from NERCHA. Baylor operates two bank accounts, a First National Bank account and Standard Bank Account. The amount was paid into the FNB account. On 9 July 2008 Mrs Bhembe, purporting to act in the furtherance of the contract, requested FNB to transfer R1,386,246.62 from the FNB account into the account of another South African company, Arigo Trading (Pty) Ltd. [32]         According to the NDPP, Arigo had no business dealings with Baylor. The shareholding in Arigo is held by Mr Bhembe and his sister, Ms Sanele Mthunzi. They both have signing powers on Arigo’s account. The request for the transfer was signed by Mrs Bhembe and Ms Nomvuyo Shongwe. On the request, it was indicated that the payment is for medical equipment and medicines to be used by clinics in Swaziland. [33]         The amount of R1,386,246.62 was transferred to Arigo on 14 July 2008. Soon after, large amounts were withdrawn in cash and by cheques or were electronically transferred into other bank accounts. One of these accounts belonged to Mr Bhembe. According to the NDPP, Baylor received nothing from Arigo. It is no surprise that these payments later drew the attention of the relevant authorities. [34]         It was also discovered that from 26 February 2008 to 23 September 2008 Mrs Bhembe made several unauthorised transfers amounting to R218,411.30 from the Baylor Account into a Standard Bank home loan account. The home loan account is held in the name of the respondents, and pertains to the immovable property. According to a statement signed by Mr Michael B Mizwa, apparently the vice-chairman of the Board of Baylor, the payments made were unauthorised and not approved by the Board of Directors. [35]         Ms de Villiers concludes that the total amount transferred from Baylor to Arigo as well as the home loan account is R1,604,657.82, which is the sum of R1,386,246.62 transferred to Arigo and R218,411.20 transferred to the home loan account. From this, the NDPP concludes that the total amount was derived, received or retained through the unlawful activities of Mrs Bhembe: the money from Baylor passed through Arigo and the home loan account and was utilised for the benefit of the respondents. Ms de Villiers also submits that, by using the Baylor funds, the respondents ‘saved’ or retained their own money, and in doing so enriched their estate. # The respondents’ case The respondents’ case [36]         Other than the procedural point referred to below, the respondents raise three defences in the answering affidavit: first , they deny that the amounts are the proceeds of unlawful activities; second , they deny that they were involved in any unlawful activities; and third , they say that none of the items referred to as the property, in particular the immovable property, are the proceeds of unlawful activities. [37]         Mrs Bhembe denies that she made unauthorised transfers to the bond account. She explains that during her time at Baylor there was an arrangement to the effect that Baylor would pay a portions of employees’ salaries into their bond accounts. Those portions would be deducted from employees’ salaries. Baylor would then pay the relevant employee the remaining portion of his or her salary. She says that is what happened. In support of this, she includes an affidavit from Ms Nontsikelelo Nkambule, the Finance Manager of Baylor from February to December 2006. [38]         She goes further by saying that all the payments to the bond account were approved by either Ms Nkambule or Ms Shongwe. According to her, Ms Nkambule and Ms Shongwe were co-signatories on the transfers. She also attaches copies of what she says are the authorised transfer instructions. It is on this basis that she denies that the E218,411.20 was derived, received or retained through unlawful activities and denies that it constitutes the proceeds of unlawful activities. [39]         To the extent that the NDPP’s witnesses rely on a so-called ‘ external forensic report’ , the respondents points to evidence from her attorney that, at time that the answering affidavit was deposed to, they had been requesting the report for at least two years, without any success. Although, they admit that a case of theft or fraud had been opened in Swaziland, they denied having committed any fraud, corruption or money laundering. It is on the aforesaid bases that Mr Dorfling contends that the NDPP does not make out a case for a preservation order. # Was there proper notice of the preservation order? Was there proper notice of the preservation order? [40]         In addition to the aforegoing defences, the respondents raise the point that the preservation order and the publication of the order in the Government Gazette falls foul of the statutory requirements of Section 38(1), 39(1)(b) and 48(1). Mr Dorfling submits that the compliance with the provisions in the Act are peremptory and that non-compliance is fatal to the NDPP’s application. [41]         The argument starts from the premise that the preservation order is not valid. Accordingly, it is submitted, there is no preservation order in terms of Section 38 in place. In the absence of an order in terms of Section 38, the argument goes, the NDPP may not apply for a forfeiture. This is, of course, because Section 48(1) provides that it is only if there is a preservation order that is in force that the NDPP may apply for forfeiture. In support of this contention, the respondents rely what they call two fatal deficiencies. [42]         The first deficiency is that the order of Mabuse J is incomplete as ‘paragraph 1 ... makes no reference to the provisions of Section 38 of POCA and the fact the court has ordered the property listed in Annexure “A” to the order to be preserved in terms of an ex parte order pursuant to the provisions of Section 38 of POCA.’ For understandable reasons, this point was not argued with much vigour. It is doubtful whether the point would be able to succeed if the order did not have any reference to Section 38 at all, but one does not have to go that far. The heading of the order clearly denotes it being an order in terms of Section 38. Any omission of any provision of the act from any of the paragraphs cannot invalidate the order. However, in court, Mr Dorfling took the argument slightly further. In his view, paragraph 1 of the order is too vague or makes no sense. At first glance, that appears to be so. Paragraph 1 of the order reads: ‘ The Property 1        Erf No 1[…] Unit 3[…], cnr L[…] and S[…], Kyalami Estate, Midrand, as well as items listed in annexure A (the property).’ [43] If one peers intently at the prayer in isolation without reading any further it does not appear to make sense. However, Mr Dorfling correctly submitted that the point calls for an interpretation of the preservation order. In Eke [24] the Constitutional Court held with reference to Finishing Touch [25] and the well-known case of Firestone [26] that the well-established test on the interpretation of court orders is as follows: ‘ The starting point is to determine the manifest purpose of the order. In interpreting a judgment or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents. As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention.’ [44]         It is when one reads the entire order that paragraph 1 and the remainder of the order makes perfect sense. It sets out and defines what the property is that the order relates to, with reference to a description of the immovable property and the items listed in Annexure A. Turning to Annexure A, one finds the other items, and a repetition of the description of the immovable property. As one continues to read the order, from paragraph 2 onwards, one is left with no doubt that the order aims to and succeeds in preserving the property. It refers to and outlines the prohibition referred to in Section 38(2); orders the Registrar of Deeds to endorse the Title Deed of the immovable property; appoints the curator bonis in terms of Section 42, and so forth. There is accordingly no merit to the submissions in respect of the first deficiency. [45]         The second deficiency is that the publication of the notice of the order in the Government Gazette is fatally defective in that the published Annexure “A” attached to the preservation order ‘ clearly forms the subject matter of a totally different preservation forfeiture application.’ [46]         Section 39(1) provides that the NDPP shall, as soon as practicable after making of the order (a) give notice of the order to all persons known to the NDPP to have an interest in the property which is the subject of the order; and (b) publish a notice of the order in the Gazette. Section 39(3) provides that any person who has an interest in the property may enter an appearance giving notice of his or her intention to oppose the making of a forfeiture order or to apply for an order excluding his or her interest in the property concerned from the operation thereof. It is with (b) that the respondents take issue. [47] The starting point is an exercise in interpretation. This requires that meaning be assigned on the basis of the language used, of what was intended and the purpose of the provision is. [27] The first important observation is that Section 39(1) requires publication of ‘ a notice of the order’ . It does not prescribe publication of the order, or require anything in particular as to the form and substance of the notice. There can be no doubt that publication of the notice of the order is peremptory, but the question actually relates to whether the content of the notice as published complies with the Act. Neither Ms de Villiers nor Mr Dorfling could point me to any provision or authority that determines the form and substance of the notice. I could not find any either. I, however, agree with both of them that the purpose of the provision and publication is to provide for anyone that may have an interest in the property to become aware of the preservation order. This will enable them to exercise their rights in terms of Section 39(3). It also warns them not to act in contravention of the preservation order, thereby aiding in the preservation of the property. [48] It is clear that the Act does not require publication of the entire order, and it does not provide that the notice must necessarily contain everything contained in the order. If that was what the legislature intended, it would have said so. It would not have used the words ‘ a notice of the order.’ It would have employed words such as ‘ publish the order’. It is neither necessary nor desirable to lay down hard and fast rules of everything that the notice of the order must contain. To do so would be to transgress into the domain of the legislature, rather than interpreting the legislation. [28] [49]         Suffice to say that, bearing in mind the text, the context and purpose of the provisions, the notice of the order may contain something less than the terms of the order, but that must draw attention to the order and it should at least contain sufficient information to meet its purpose. It should, for example, contain a description of the property upon which an interest party can reasonably be expected to identify the property; the fact that the property is now subject to a preservation order; the fact that an interested party has the rights set out in Section 39(3) of the Act; and sufficient particularity as to allow the interested party to exercise his or her rights. This is an interpretation that accords with the text, the context and the purpose of the provisions. [50]         The particular basis upon which the respondents object to the publication is that ‘ When the said Annexure “A” published in the Government Gazette is considered, it is clear that the said annexure relates to a totally different forfeiture application in which the Respondents are listed by the surname “Murugan” and in which the forfeiture is sought of the following property: “... a Dyna Truck ..., a Mercedes Benz ..., and fixed property situated at ... Kempton Park.’ This is a limited reading of the publication that essentially ignores what goes before it. [51]         Having regard to the entire publication, it appears that both the order, as well as Annexure B, the ‘ notice of the order’ was published. Except for one respect, it contains sufficient information to meet its purpose. It is correct, as Mr Dorfling submits, that Annexure A to the order was not included. The effect of this is that the publication of the notice does not describe the vehicle, the investment policy, the education policy, or the unit trust at all. Read in its entirety the publication does, however, contain sufficient information to meet its purpose in respect of the immovable property. In this, limited sense, the purpose of the publication and the statutory provisions are met. [52] In Unlawful Occupiers, School Site v City of Johannesburg, [29] a case that concerns defects to notices in terms of Section 4(2) of PIE, [30] Brand JA held: ‘ Nevertheless, it is clear from the authorities that even where the formalities required by statute are peremptory it is not every deviation from the literal prescription that is fatal. Even in that event, the question remains whether, in spite of the defects, the object of the statutory provision had been achieved’ [53] Brand JA held that, despite the defects in the notices it had achieved the object of the statutory provisions. One of the factors that he considered was that  the respondents in that case already knew what case they had to meet. [31] He held that the question whether a notice in a particular case achieved its purpose cannot be considered in the abstract. This moved him to consider facts outside the text of the notice itself, concluding there had been effective notice. [32] [54]         This case is different, because the relevant provisions and the publication is not only to the benefit of the respondents. It is also meant to protect other interested parties. There is no evidence before court upon which it can be determined that any person that may have or may have had an interest in the vehicle, the investment policy, the education policy, or the unit trust will have received notice of the preservation order by some other means. None of the documents, including the curator’s interim report is of any assistance. In fact, the curator’s report does not mention any of the items except the immovable property and the vehicle (including the fact that the vehicle had been sold before the order was granted). I am therefor not inclined to consider granting a forfeiture order in respect of the vehicle, the investment policy, the education policy, or the unit trust. In that regard, there was not substantial compliance with the relevant provisions of the Act. Are the other items the proceeds of unlawful activity? [55]         Even if the conclusion in the previous paragraph is wrong, the question whether the vehicle, the investment policy, the education policy, or the unit trust are the proceeds of unlawful activity can be dispensed with, with relative ease. In the case of the immovable property, there is some effort by the witnesses on behalf of the NDPP to demonstrate a link, but in the case of the other items, there is none. [56]         The evidence given by the witnesses on behalf of the NDPP is that they were unsuccessful in locating the proceeds of the alleged unlawful activity, as the funds were dissipated in a number of ways. It is understandable that that will sometimes be the case in cases such as these. However, there are no allegations as to who acquired the items, when, where, or how they were acquired or any attempt to demonstrate that the items were acquired, derived, received or retained as a result of the unlawful activity. There is also no effort to explain why it was not possible to obtain some relevant information concerning these items. [57]         I must agree with Mr Dorfling when he says that, in respect of these items, there is no evidence that demonstrates that they were derived or retained from the proceeds of unlawful activities. To her credit, Ms de Villiers gave her utmost on the available evidence to persuade otherwise, but she was constrained to concede that, if the court was bound to the authorities and the principles set out below, and on the facts available to the court, no such nexus could be shown. I will turn to those authorities in a moment. On this basis, it must be concluded that these items are not the proceeds of unlawful activity. # Is the immovable property the proceeds of unlawful activity? Is the immovable property the proceeds of unlawful activity? [58]         The NDPP proceeds from the premise that the respondent’s proceeds from the unlawful activity is R1,604,657.82. Broadly speaking, this amount consists of two amounts. First, there is the R218,411.20 paid from Baylor to the respondents’ Standard Bank home loan account. I will return to this. Then, there is the R1,386,246.62 paid from Baylor to Arigo. The witnesses for the NDPP were, however, unable to demonstrate a nexus between the various amounts drawn on or paid from the Arigo account and the Standard Bank home loan account. Where they were able to trace the eventual destination of an amount, drawn or paid from the account, the proceeds had nothing to do with the property. For the rest, they were unable to show what the proceeds were. The NDPP therefor took a very particular approach in seeking to demonstrate that the property represented the R1,386,246.62 which it says was the proceeds from unlawful activity. [59]         The motivation for the approach by the NDPP can be summarised as follows. The advantage or benefit of the funds constitutes property that the respondents would not have obtained but for the commission of the alleged unlawful activities. By using the funds, the argument goes, the respondents saved their own money, but still enriched their own estate. The Act is intended to be used to remove the proceeds of unlawful activities. From there, it says, the mere fact that a specific asset cannot be linked to a crime can provide criminals with the opportunity to dissipate specific assets just so that it cannot be seized. This, the NDPP says, will make criminals untouchable. It is for this reason, it submits, that the definition of ‘ the proceeds of unlawful activity’ contains the phrase ‘ and includes any property representing property so derived’ . On this basis, it concludes that the property ‘ represents the proceeds directly received by the respondents.’ As appealing as the argument sounds, it is incorrect. It accords more with the approach to criminal forfeiture provided for in Chapter 5, and not Chapter 6. [60] The NDPP seeks support for its contention in Levy , [33] where the court applied a wide interpretation to the definition of ‘ proceeds of unlawful activity’ and declined to follow the judgment of Seevnarayan [34] in another division, where a more restrictive interpretation was adopted. However, neither of these judgments represent the current state of the law, nor do they assist the NDPP. In further support of its contention in the previous paragraph, the NDPP relies on Shaik , [35] a decision of the Constitutional Court. However, Shaik related to Chapter 5 and is not authority for the NDPP’s contention. [61] In RO Cook Properties [36] the Supreme Court of Appeal held as follows concerning the definition of ‘ proceeds of unlawful activities’ : ‘ It is evident that the definition of ‘proceeds of unlawful activities’ is cast extremely wide, and the interpretative caution Miller JA expressed regarding ‘in connection with’ in Lipschitz NO v UDC Bank Ltd applies. But with that adjustment made, we consider that the amplitude of the definition should be approached somewhat differently from that in the case of ‘instrumentality of an offence’. This is because the risk of unconstitutional application is smaller. As we showed earlier, the forfeiture of a good deal of property that could literally be said to be ‘concerned in’ an offence would run unconstitutionally counter to the Act’s objectives of removing incentives, deterring the use of property in crime, eliminating or incapacitating the means by which crime may be committed and at the same time advancing the ends of justice. In our view it is less likely that forfeiture of benefits derived, received or retained ‘in connection with or as a result of any unlawful activity’ would fail rationally to advance those objectives. We therefore approach the definition on the basis that, subject to necessary attenuation of the linguistic scope of ‘in connection with’, it should be given its full ambit.’ [62] The Supreme Court of Appeal therefor sought to deal definitively with the same concern that the NDPP raises as part of its contention above. It did not, however, follow the approach that the NDPP calls for. It held: [37] ‘ Even though it is clear that the words ‘in connection with’ are intended  to broaden the scope of the definition, we consider that, merely as a matter of language, to fall within the definition of accrual of property must flow in some way (direct or indirect) from unlawful activity. Bearing in mind the objective of the Act is to render forfeit the returns that might accrue from unlawful activity, we consider that the ‘connection’ the definition envisages requires some form of consequential relation between the return and the unlawful activity. In other words, the proceeds must in some way be the consequence of unlawful activity.’ [63]         For it to succeed, the NDPP has to prove on a balance of probabilities that the proceeds must in some way be the consequence of unlawful activity. For these reasons, it cannot be concluded that there is some link between the R1,386,246.62 that was transferred from Baylor to Arigo, and the immovable property. There is simply no evidence to make such a finding. [64]         In reality therefor, the NDPP’s case in respect of the immovable property hinges on the allegation of the payments totalling R218,411.20. Its case is that from 26 February 2008 to 23 September 2008 Mrs Bhembe made several unauthorised transfers amounting to R218,411.30 from the Baylor Standard Bank account into a Standard Bank home loan account. The home loan account is held in the name of the respondents, and pertains to the immovable property. According to the statement signed by Mr Mizwa, the payments made were unauthorised and not approved by the Board of Directors. [65]         The respondents do not deny that the payments were made from Baylor’s account to the home loan account, but they do deny that it was the proceeds of unlawful activity and they do deny that it was unauthorised. Their denials are not bold or unsubstantiated. [66]         Mrs Bhembe explains that during her time at Baylor there was an arrangement that Baylor would pay a portion of employees’ salaries into their bond accounts. It would be deducted from employees’ salaries. Baylor would then pay the employee the remaining portion of her salary. For this, she also relies on the affidavit of Ms Nkambule, Baylor’s Finance Manager from February to December 2006. [67]         The NDPP was quick to think that there may be a problem with Ms Nkambule’s evidence, seeing as she was the financial manager from February to December 2006, whereas the payments took place from February to September 2008. It drew the conclusion that Ms Nkambule could not have had any knowledge concerning the relevant period. However, this loses sight of the fact that one of the NDPP’s own witnesses in the founding papers explains that she was one of the co-signatories with Mrs Bhembe at Baylor at the relevant time. The transfer authorisations also show that she was an employee of Baylor at the relevant time. [68]         Mrs Bhembe further explains that all the payments to the bond account were approved by either Ms Nkambule or Ms Shongwe. According to her, Ms Nkambule and Ms Shongwe were co-signatories on the transfers. This accords with the NDPP’s version in the founding papers. She also attaches copies of the authorised transfer instructions, which provide confirmation of her version and that of Ms Nkambule. [69]         Finally, the fons et origins of the NDPP’s case is the payment of R1,403,050.62  that NERCHA made to Baylor’s FNB account on 4 July 2008. Of this amount, R1,386,246.62 was paid from Baylor’s FNB account to Arigo ten days later, on 14 July 2008. Assuming only these amounts, the balance of the NERCHA amount in Baylor’s FNB account would be R16,804.00. The payments made to the home loan account from Baylor that forms part of R218,411.20 start as early as 26 February and ends on 23 September 2008.  What is most telling is that the NDPP’s witnesses explain that the payments made to the home loan account were made from Baylor’s Standard Bank account, and not Baylor’s FNB account into which the NERCHA payment was made. There is no evidence showing that any of the NERCHA funds ever found its way to Baylor’s Standard Bank account. Conclusion [70]         For all the aforesaid reasons it must be concluded that the NDPP has failed to establish on a balance of probabilities that the property was derived, received or retained, directly or indirectly, in connection with or as a result of any unlawful activity. [71]         There is no reason why the costs should not follow the result. # Order Order [72]         The following order is made: The application is dismissed with costs. E BOTHA ACTING JUDGE OF THE HIGH COURT For the Applicant:                                    Ms S de Villiers on instruction of State Attorney, Pretoria For the Respondents:                             Mr D Dorfling SC on instruction of Faranoff Attorneys [1] Act 121 of 1998 (‘the Act’ ). [2] National Director of Public Prosecutions v Mohamed NO [2002] ZACC 9 ; 2002 (4) SA 843 (CC) (‘ Mohamed’ ) para 14. [3] Mohamed para 17. [4] S v Shaik and Others [2008] ZACC 7 ; 2008 (5) SA 354 (CC) (‘ Shaik’ ) para 22 to 24. [5] Mohamed para 17. [6] National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and another; National Director of Public Prosecutions v Seevnarayan 2004 (2) SACR 208 (SCA); [2004] 2 All SA 491 (SCA) (‘ RO Cook Properties’ ). [7] RO Cook Properties para 14. [8] Sections 38 to 47. [9] Section 39. [10] Section 40. [11] Sections [12] Section 48(1). [13] RO Cook Properties para 15. [14] RO Cook Properties para 13 to 31. [15] RO Cook Properties para 30. [16] National Director of Public Prosecutions v Van der Merwe and Another 2011 (2) SACR 188 (WCC); [2011] 3 All SA 635 (WCC) (‘ van der Merwe’ ) para 7. [17] See, for instance, Mohamed para 17. [18] Van der Merwe para 15. [19] Van der Merwe para 15. [20] Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A). [21] Van der Merwe para 48 and 49. [22] If and where necessary, these items will henceforth be described as ‘the immovable property’, ‘the vehicle’, ‘the investment policy’, ‘the education policy’, and ‘the unit trust’. [23] Emalangeni. The papers and this judgment uses Emalangeni and Rands interchangeably. Nothing turns on it. It also appears that at times there are some differences and confusion on the different amounts and their calculation but, again, nothing turns on it. [24] Eke v Parsons 2015 (11) BCLR 1319 (CC) para 29. [25] Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others 2013 (2) SA 204 (SCA) (‘ Finishing Touch 163’ ) para 13. [26] Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 304. [27] Firstrand Bank Ltd v Briedenhann 2022 (5) SA 215 (ECGq). (‘ Briedenhahn’ ) para 27. [28] Briedenhahn para 28 . [29] Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA) (‘ Unlawful Occupiers’ ) para 22. [30] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act , 19 of 1998. [31] Unlawful Occupiers para 24. [32] Unlawful Occupiers para 24-30. [33] National Director of Public Prosecutions v Levy and Others [2004] 4 All SA 103 (W). [34] National Director of Public Prosecutions v Seevnarayan 2003 (2) SA 178 (C). [35] S v Shaik and Others 2008 (5) SA 354 (CC). [36] RO Cook Properties para 66. [37] RO Cook Properties para 71. sino noindex make_database footer start