Case Law[2023] ZAKZDHC 38South Africa
National Director of Public Prosecutions v Samuel and Others (9863/2016) [2023] ZAKZDHC 38 (30 June 2023)
High Court of South Africa (KwaZulu-Natal Division, Durban)
30 June 2023
Headnotes
with Sanlam and Discovery[2] as she avers that some of these policies were not paid for entirely with the proceeds of unlawful activity. Some policies had been taken out prior to the date on which she had received funds from the alleged ‘illegitimate’ source and had been paid with legitimate funds earned by her from monies received from ‘investors’. The first respondent submits that the funds in her main personal bank account contained legitimate deposits from investors totalling the sum of R16 128 812. These investments were managed from her personal bank account. [5] The second, third, and fourth respondents apply for the exclusion of their interests in the immovable property listed in Annexure B and allege that they are innocent owners and were unaware that a portion of the money used to purchase the immovable property was from the proceeds of unlawful activity. In addition, they submit that the forfeiture of the immovable property would be disproportionate and prejudicial as the majority of funds utilised to purchase the immovable properties were legitimately earned.[3] [6] The fifth and sixth respondents have applied for the exclusion of their interests in the immovable property[4] as innocent owners and have indicated that they have not committed any crime warranting a forfeiture of the immovable property. This was a gift given to them by the late Gonaseelan Govender (Gonaseelan), the fifth respondent’s brother, and they were not aware that the immovable property was purchased with the proceeds of unlawful activities. [7] In relation to their opposition, section 52 of POCA provides that when a high court makes a forfeiture order in terms of section 50(1), it may exclude certain interests if the respondents can show that they acquired the property legally and did not know nor had reasonable grounds to believe that the property was the proceeds of unlawful activity. The defence raised by the respondents in opposition is often referred to as the ‘innocent owner d
Judgment
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# South Africa: Kwazulu-Natal High Court, Durban
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## National Director of Public Prosecutions v Samuel and Others (9863/2016) [2023] ZAKZDHC 38 (30 June 2023)
National Director of Public Prosecutions v Samuel and Others (9863/2016) [2023] ZAKZDHC 38 (30 June 2023)
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sino date 30 June 2023
SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE NO: 9863/2016
In
the matter between:
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
APPLICANT
and
SAVITHREE
SAMUEL
FIRST RESPONDENT
CALEB
ENOCH SAMUEL
SECOND RESPONDENT
TITUS
ENOCH SAMUEL
THIRD RESPONDENT
JOASH
ENOCH SAMUEL
FOURTH RESPONDENT
DHRUVASEN
GOVENDER
FIFTH RESPONDENT
SALLY
POOBALAN GOVENDER
SIXTH RESPONDENT
ORDER
The following orders are
issued:
1.
The respondents are granted condonation for
the late filing of their heads of argument and practice note.
2.
An order is granted in terms of section 50
of the Prevention of Organised Crime Act 121 of 1998 (the Act),
declaring forfeited to
the State, the property listed in Annexure B
(the property) to the notice of motion, save for the exclusion of
items 5, 6 and 12.
The property is currently in the custody of the
curator bonis
.
3.
Phinda Shembe of Shembe Attorneys, who was
appointed as
curator bonis
in
terms of the preservation order, is authorised to continue to act as
such.
4.
In terms of section 56(2) of the Act, the
property shall vest in the
curator bonis
on behalf of the State on the date on
which this order takes effect.
5.
In terms of section 57 of the Act, the
curator bonis
is
authorised, as of the date on which this order takes effect, to
perform all the powers and functions specified in the Act, including
the following:
(a)
to take possession of the property on
behalf of the State;
(b)
to deduct his fees and expenditure;
(c)
to deposit the balance of the proceeds of
the sale of the property into the bank account of Tiger Brands and
Treats, a division
of Tiger Consumer Brands Ltd, Nedbank, account
number 1[...], branch code 1[...], being the victim in the matter;
and
(d)
to perform any ancillary acts which, in the
opinion of the
curator bonis
,
are reasonably necessary to effect such fulfilment.
6.
In terms of section 50(6) of the Act, this
forfeiture order shall not take effect before the period allowed for
an application under
section 54 of the Act or an appeal under section
55 of the Act has expired or before such application or appeal is
disposed of.
7.
In terms of section 50(5) of the Act, the
registrar of this court, or the State Attorney (KZN) on the request
of the registrar,
is to publish a notice of this forfeiture order in
the form set out in annexure C to the notice of motion in the
Government Gazette
as
soon as practicable after this order is granted.
8.
The first to fourth respondents are
directed to pay the costs occasioned by their opposition to the
forfeiture application.
9.
The application by the first and third to
sixth respondents for the exclusion of their interests in the
property in Annexure B is
dismissed.
JUDGMENT
HENRIQUES
J
# Introduction
Introduction
[1]
This is an application for a forfeiture
order in terms of section 48 of the Prevention of Organised Crime Act
121 of 1998 (POCA)
forfeiting property itemised in Annexure B to the
notice of motion, hereinafter referred to as ‘the property’.
This
court may, in terms of sections 48 and 50(1) of POCA, grant an
order forfeiting the property to the State, if it finds on a balance
of probabilities that the property constitutes the proceeds of
unlawful activity. The applicant submits that the property is the
proceeds of unlawful activities, in this instance, fraud.
[2]
On
3 October 2016, the applicant obtained a preservation of property
order in terms of section 38(1) of POCA. The property preserved
is
listed in Annexure B to the order.
[1]
Pursuant
to the obtaining of the preservation order, the following persons
entered an appearance in terms of s39(3) and gave notice
of their
intention to oppose the forfeiture application: this was the first
respondent, Savithree Samuel (Savithree); the second
respondent,
Caleb Enoch Samuel (Caleb); the third respondent, Titus Enoch Samuel
(Titus); the fourth respondent, Joash Enoch Samuel
(Joash); and the
fifth and sixth respondents, Dhruvasan Govender and Sally Poobalan
Govender. The fifth and sixth respondents are
married to each other
and the second, third and fourth respondents are the sons of the
first respondent.
[3]
The applicant, and the first to fourth
respondents elected to have the matter decided on the papers. The
fifth and sixth respondents
elected to have a hearing in open court.
[4]
In
summary, the first respondent applies for the exclusion of her
interest in six policies held with Sanlam and Discovery
[2]
as
she avers that some of these policies were not paid for entirely with
the proceeds of unlawful activity. Some policies had been
taken out
prior to the date on which she had received funds from the alleged
‘illegitimate’ source and had been paid
with legitimate
funds earned by her from monies received from ‘investors’.
The first respondent submits that the funds
in her main personal bank
account contained legitimate deposits from investors totalling the
sum of R16 128 812. These investments
were managed from her personal
bank account.
[5]
The
second, third, and fourth respondents apply for the exclusion of
their interests in the immovable property listed in Annexure
B and
allege that they are innocent owners and were unaware that a portion
of the money used to purchase the immovable property
was from the
proceeds of unlawful activity. In addition, they submit that the
forfeiture of the immovable property would be disproportionate
and
prejudicial as the majority of funds utilised to purchase the
immovable properties were legitimately earned.
[3]
[6]
The
fifth and sixth respondents have applied for the exclusion of their
interests in the immovable property
[4]
as innocent owners and have indicated that they have not committed
any crime warranting a forfeiture of the immovable property.
This was
a gift given to them by the late Gonaseelan Govender (Gonaseelan),
the fifth respondent’s brother, and they were
not aware that
the immovable property was purchased with the proceeds of unlawful
activities.
[7]
In relation to their opposition, section 52
of POCA provides that when a high court makes a forfeiture order in
terms of section
50(1), it may exclude certain interests if the
respondents can show that they acquired the property legally and did
not know nor
had reasonable grounds to believe that the property was
the proceeds of unlawful activity. The defence raised by the
respondents
in opposition is often referred to as the ‘innocent
owner defence’.
# The application for
recusal
The application for
recusal
[8]
Before dealing with the issues for
determination, it is necessary to deal with a preliminary matter
which arose when the opposed
motion was allocated for hearing. Given
the Covid-19 pandemic and the protocols in place at the time,
correspondence was addressed
to the respective parties concerning the
conduct of the proceedings. A response was forthcoming only
from the applicant and the first to fourth
respondents. The fifth and sixth respondents did not respond to the
initial enquiry.
It was then agreed that the matter be decided on the
papers without the hearing of oral argument, with the submission of
written
heads of arguments and practice notes as well as written
submissions.
[9]
It subsequently transpired from email
correspondence exchanged between the temporary secretary assigned to
me and the fifth and
sixth respondents that a response had been sent
through, albeit to an incorrect email address. The fifth and sixth
respondents
raised objections to the matter being decided on the
papers. In addition, I had also addressed correspondence to the
parties in
relation to whether or not they had any objections to me
presiding in the matter.
[10]
The applicant and the first to fourth
respondents raised no objection to me presiding in the matter and
complied with the directive
and submitted their written heads of
argument as well as their written submissions. The parties were
unable to comply with the
directive in relation to the submission of
a joint statement of issues as the heads of argument were filed late.
They elected not
to attend the court hearing.
[11]
As a consequence of the response received
from the fifth and sixth respondents, a court hearing was arranged at
which the fifth
and sixth respondents appeared in person and made
oral submissions in relation to their objection to me presiding and
in relation
to the merits of the matter should I refuse the
application for my recusal.
[12]
In
considering the oral submissions relating to my recusal I had regard
to Article 13 of the Judicial Code of Conduct, the
locus
classicus
in
respect of recusal applications being the decisions of
President
of the Republic of South Africa and others v South African Rugby
Football Union and others
[5]
and the Constitutional Court in
South
African Commercial Catering and Allied Workers Union & Others v
Irvin and Johnson Limited (Seafoods Division Fish Processing)
[6]
as
refined in
S
v Shackell
.
[7]
[13]
The fifth and sixth respondents recorded in
writing the basis upon which they sought my recusal and this is a
matter of record.
This was conveyed in correspondence and included
the following:
(a)
My previous interactions with officials
from the Asset Forfeiture Unit;
(b)
How I would address the acts of corruption
committed by senior officials from the Asset Forfeiture Unit which
the fifth and sixth
respondents had exposed;
(c)
They would not be given a fair hearing in
court given the fact that they cannot afford legal representation;
(d)
They have serious doubts concerning my
impartiality, and my biased views about respondents in Asset
Forfeiture Matters; and
(e)
They are opposed to me deciding the matter
and require clarity regarding what happened to the original judge
assigned to deal with
the matter. They queried the decision to change
judges and considered the change of judges a well-planned strategy
designed to
make them fail.
[14]
The record of the proceedings will indicate
that during the course of hearing the fifth and sixth respondents’
submissions
in relation to my recusal, it became evident that as lay
persons, they misunderstood the court proceedings and court
processes.
In fact, I explained to the fifth and sixth respondents
how matters are assigned in this division and how the matter was
allocated.
This seemed to allay the fifth and sixth respondents’
fears concerning the allocation of the matter to me.
[15]
I also explained I had ceased dealing with
asset forfeiture matters in the Northern Cape in 2011. I have had no
interaction with
that office since then, and my involvement with
matters involving the Asset Forfeiture Unit since my elevation to the
Bench, has
only been in dealing with matters as they appeared on the
motion court roll. After hearing my answers to their concerns, the
fifth
and sixth respondents raised no objections to my continued
involvement in the matter. In fact, Mr Govender was of the view that
he would place his trust in the legal system, as well as the
judiciary and appreciated that judges took an oath of office to be
impartial and unbiased.
[16]
In the result, this line of opposition was
not pursued any further and they withdrew their request for my
recusal. I then heard
submissions on the merits of their opposition.
#
# Issues requiring
determination
Issues requiring
determination
[17]
The following issues require determination:
(a)
Whether the property in Annexure B
constitutes the proceeds of unlawful activities and is liable to
forfeiture in terms of section
48 read with section 50 of POCA.
(b)
Whether the first, and third to sixth
respondents have any interest in the respective properties which are
liable for exclusion
in terms of section 52 of POCA.
(c)
In the event of the court finding that the
immovable property is liable to forfeiture, whether the proposed
forfeiture is proportional,
i.e. the proportionality assessment.
[18]
In respect of the issues which require
determination, the applicant bears the onus to prove on a balance of
probabilities that the
property constitutes the proceeds of unlawful
activity, and the proportionality of such forfeiture. The respondents
bear the onus
to prove on a balance of probabilities their respective
innocent owner defences and for the exclusion of their interests in
the
property. The second respondent no longer seeks to have his
interest in all the property excluded from the forfeiture order and
appears to have abandoned his opposition, specifically in relation to
the immovable property in Annexure B which is registered
in his name.
# The context for the
preservation and forfeiture applications
The context for the
preservation and forfeiture applications
[19]
Between July 2009 to October 2014, an
entity known as Jocatus Transport CC (Jocatus) issued 60 invoices to
Tiger Brands Limited
(Tiger Brands) for logistic services,
purportedly rendered pursuant to an enterprise development agreement.
Tiger Brands made payment
to Jocatus on receipt of such invoices in
the amount of R121 679 095.70. Subsequently, the enterprise
development agreement between
Jocatus and Tiger Brands was found to
contain a forged signature on behalf of Tiger Brands and it was
ascertained that Jocatus
had not rendered any services to Tiger
Brands, and consequently Tiger Brands had suffered a financial loss
as a result of such
fraudulent payments to Jocatus (the Jocatus
fraud).
[20]
A former financial manager at Tiger Brands,
the late Gonaseelan Govender was found to be instrumental in the
fraud and was subsequently
dismissed from his employment at Tiger
Brands. The first respondent Savithree was the sole member of
Jocatus. Once payment had
been made by Tiger Brands into Jocatus’
bank account, such funds were disbursed into other bank accounts. A
number of persons
received funds in their bank accounts which funds
were either retained in such bank accounts, or dispersed to other
bank accounts,
or used to acquire those properties listed in Annexure
B. The first, and third to sixth respondents have interests in and
are the
owners of the respective immovable properties sought to be
forfeited as a consequence of being purchased from such funds.
[21]
The affidavit of Ms Meera Ramdeen (Ms
Ramdeen) contains an analysis of how the funds received by Jocatus
were disbursed to other
entities, persons and their bank accounts,
including the first to fourth respondents. In the instance of the
fifth and sixth respondents,
immovable property was purchased in
their names..
# The applicable
legislation
The applicable
legislation
[22]
POCA was enacted to provide inter alia for
the recovery of the proceeds of unlawful activity and for the civil
forfeiture of property
that has been used to commit an offence
(referred to as an ‘instrumentality of an offence’)
and/or property that is
the proceeds of unlawful activity (often
referred to as ‘proceeds of crime’). In the preamble to
POCA, it is emphasised
that no person ought to benefit from the
fruits of an offence or from the fruits of unlawful activities and
that POCA is necessary
to provide for a civil remedy for the
preservation, seizure and forfeiture of property derived from
unlawful activities or which
is concerned in the commission or
suspected commission of an offence. It is with this purpose in mind
that a court considers a
forfeiture order.
[23]
Section 1 of POCA defines ‘proceeds
of unlawful activities’ as follows:
‘
means
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’.
[24]
Property is defined as
‘
money
or any other movable, immovable, corporeal or incorporeal thing and
includes any rights, privileges, claims and securities
and any
interest therein and all proceeds thereof’.
[25]
Unlawful activity is defined as
‘
any
conduct which constitutes a crime or which contravenes any law
whether such conduct occurred before or after the commencement
of
this Act and whether such conduct occurred in the Republic or
elsewhere.’
[26]
POCA draws a distinction between criminal
forfeiture and civil forfeiture. In respect of civil forfeiture,
these proceedings are
civil in nature and are not dependent on there
being a prior conviction for a criminal offence. This is evident if
one draws a
contrast between chapter 5 of POCA which provides for
confiscation orders on conviction for a criminal offence and chapter
6 of
POCA which provides for forfeiture orders in terms of civil
forfeiture.
[27]
As was held in
National
Director of Public Prosecutions v Mohamed NO
:
‘
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 . . . 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.’
[8]
[28]
The
civil recovery of property is governed by the provisions of chapter 6
of POCA and as the proceedings are civil in nature, consequently
the
rules of evidence which apply to civil proceedings apply to
proceedings instituted under this chapter.
[9]
[29]
The
chapter envisages a two-step procedure. The process commences with
the National Director of Public Prosecutions (NDPP) applying,
on an
ex
parte
basis,
for a preservation of property order in terms of section 38 of POCA,
in circumstances where there are reasonable grounds
to believe that
the property concerned ‘is an instrumentality of an offence
referred to in Schedule 1’,
[10]
or
are ‘the proceeds of unlawful activities’,
[11]
or
‘is property associated with terrorist and related
activities’.
[12]
[30]
Once an order is made, section 39(1)
requires that
‘
the
National Director shall, as soon as practicable after the making of
the order—
(a)
give notice of the order to all persons
known to the National Director to have an interest in property which
is subject to the order;
and
(b)
publish a notice of the order in the
Gazette
.’
In terms of section 39(3)
of POCA,
‘
[a]ny
person who has an interest in the property which is subject to the
preservation of property order 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.’
[31]
Such appearance must contain
‘
(
a
)
full particulars of the identity of the person
entering the appearance;
(b)
the nature and extent of his or her
interest in the property concerned; and
(c)
the
basis of the defence upon which he or she intends to rely in opposing
a forfeiture order or applying for the exclusion of his
or her
interests from the operation thereof.’
[13]
[32]
A
forfeiture application in terms of section 48 of POCA must be
instituted within 90 days after the date upon which notice of the
preservation order is published in a
Government
Gazette
.
[14]
Once
a preservation order has been granted, a
curator
bonis
takes
control of and administers the property subject to the directions of
the high court.
[33]
Sections 48 to 57 of POCA govern the
procedure relating to applications for forfeiture orders. Section 48
provides that the NDPP
may apply to a high court for the forfeiture
of all property subject to a preservation of property order. Notice
of such application
must be provided to all persons who entered an
appearance in terms of section 39(3). Such persons may oppose the
making of a forfeiture
order, or alternatively apply for an order
varying the operation of the order in respect of the property or
excluding his or her
interests in the property from the operation of
the forfeiture order and may adduce evidence at the hearing of such
application.
[34]
In terms of section 50, subject to section
52 of POCA, a high court shall if it finds on a balance of
probabilities that the property
concerned ‘is an
instrumentality of an offence referred to in Schedule 1’, or
‘is the proceeds of unlawful activities’
or ‘is
property associated with terrorist and related activities’ make
a forfeiture order. It is also authorised to
make any ancillary
orders it deems appropriate for the operation of such forfeiture
order.
[35]
Section 52 of POCA deals with the exclusion
of interests in property and provides that
‘
The
High Court may, on application—
(a)
under section 48(3); or
(b)
by a person referred to in section 49(1),
and when it makes a
forfeiture order, make an order excluding certain interests in
property which is subject to the order, from
the operation thereof.’
It may make such an order
‘
.
. . if it finds on a balance of probabilities that the applicant for
the order—
(c)
had acquired the interest concerned legally
and for a consideration, the value of which is not significantly less
than the value
of that interest; and
(d)
where
the applicant had acquired the interest concerned after the
commencement of this Act, that he or she neither knew nor had
reasonable grounds to suspect that the property in which the interest
is held is the proceeds of unlawful activities.’
[15]
# The interpretation of the
applicable legislation
The interpretation of the
applicable legislation
[36]
It is evident from POCA that the orders
envisaged in chapter 6 are intrusive and carry with them dire
consequences for the owners
or possessors of properties, in
particular residential properties. When interpreting the provisions
of such legislation, and having
regard to the facts of a particular
matter, our courts are enjoined to interpret the legislation in a
manner that ensures its provisions
are in line with the spirit,
purport and object of the Bill of Rights, and that such forfeiture
orders are constitutionally permissible,
specifically in light of the
provisions of section 25(1) of the Constitution and to prevent the
arbitrary deprivation of property.
[37]
As was held by Nkabinde J in
Prophet
v National Director of Public Prosecutions
:
‘
The
application does raise important constitutional issues. Asset
forfeiture orders as envisaged under ch 6 of the POCA are inherently
intrusive in that they may carry dire consequences for the owners or
possessors of properties, particularly residential properties.
Courts
are therefore enjoined by s 39(2) of the Constitution “When
interpreting any
legislation,
and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport
and objects of the
Bill of Rights” to interpret legislation such as the POCA in a
manner that “promote(s) the spirit,
purport and objects of the
Bill of Rights”, to ensure that its provisions are
constitutionally justifiable, particularly
in the light of the
property clause enshrined
in
terms of s 25 the Constitution.’
[16]
(Footnotes omitted.)
# Proportionality
Proportionality
[38]
This enquiry has found its way into the
application of POCA, specifically in relation to forfeiture orders to
give recognition to
s 25 of the Constitution. It is not a statutory
requirement but an equitable requirement developed to curb the
excesses in civil
forfeiture. The proportionality analysis has been
adopted to balance the requirement of combatting crime against the
constitutionally
entrenched right to property. The proportionality
analysis is a constitutional imperative as POCA does not in itself
refer to proportionality.
[39]
The purpose of the enquiry is to determine
whether the granting of a forfeiture order would amount to an
arbitrary deprivation of
property in contravention of section 25 of
the Constitution. POCA and its preamble goes far wider than
combatting organised crime
and courts must, especially where dealing
with cases of individual wrongdoing, be alive to the possibility of
disproportionate
and constitutionally unacceptable forfeiture orders
being granted. The only safeguard against the arbitrary deprivation
of property
given the wide ambit of POCA is to be found in the
principle of proportionality.
[40]
Such
enquiry weighs the severity of the interference with individual
rights to property against
the
extent
to
which
the
property
was
used
for
the
purposes
of
the
commission of the offences, bearing in mind the nature of the
offence. It ‘cannot be measured with fine legal callipers’
[17]
but
one must always bear in mind that ‘forfeiture orders will
almost always visit real hardship upon those against whom they
are
made: this is among the very purposes for which they were
devised’.
[18]
[41]
As remarked by Nkabinde J in
Prophet
v National Director of Public Prosecutions
,
‘
Civil
forfeiture provides a unique remedy used as a measure to combat
organised crime. It rests on the legal fiction that the property
and
not the owner has contravened the law’. This kind of forfeiture
[envisaged in chapter 6 of POCA] is . . . remedial and
not punitive.
The general approach to forfeiture once the threshold of establishing
that the property is an instrumentality of
an offence has been met is
to embark upon a proportionality enquiry - weighing the severity of
the interference with individual
rights to property against the
extent to which the property was used for the purposes of the
commission of the offence, bearing
in mind the nature of the
offence.’
[19]
[42]
When considering a forfeiture order,
‘
the
purpose and object of ch 6 must be considered when a forfeiture order
is sought, one should be mindful of the fact that unrestrained
application of ch 6 may violate constitutional rights, in particular
the protection against arbitrary deprivation of property particularly
within the meaning of s 25(1) of the Constitution, which requires
that “no law may permit arbitrary deprivation of
property”.’
[20]
[43]
When
deciding what is meant by arbitrary deprivation of property, the
Constitutional Court in
First
National Bank of South Africa Ltd trading as Wesbank v Commissioner,
South African Revenue Service and another; First National
Bank of
South African Ltd trading as Wesbank v Minister of Finance
[21]
held
that ‘arbitrary’ in section 25(1) of the Constitution
means that the law allowing for the deprivation does not
provide
sufficient reason for the deprivation or allows deprivation that is
procedurally unfair. The Constitutional Court held
that
‘
for
the validity of such deprivation, there must be an appropriate
relationship between
means
and ends, between the sacrifice the individual is asked to make and
the public purpose this is intended to serve. It is one
that is not
limited to an enquiry into mere rationality, but is less strict than
a full and exacting proportionality examination.’
[22]
[44]
The Constitutional Court acknowledged that
the standard for establishing arbitrariness is different to the
standard of proportionality.
The following factors were considered
relevant by the court in cases where property is involved:
(a)
The relationship between the purpose of the
deprivation and the person whose property is affected;
(b)
The relationship between the purpose of the
deprivation, the nature of the property affected and the extent of
the deprivation;
(c)
A more compelling purpose is required where
the property rights involved are the ownership of land or corporeal
movables;
(d)
The reasons should be more compelling as
more incidents of ownership are affected;
(e)
Depending on the nature and extent of the
rights affected, the test is one that comprises elements of
rationality and proportionality,
moving closer towards
proportionality as the effects increase; and
(f)
The
enquiry takes full account of the relevant circumstances of each
case.
[23]
[45]
The purpose of a proportionality enquiry is
to determine whether the grant of a forfeiture order would be
tantamount to an arbitrary
deprivation of property in contravention
of section 25(1) of the Constitution. The proportionality analysis
weighs up the effect
on the owner concerned of a forfeiture order
against the purpose the forfeiture order aims to serve.
# The current application
The current application
[46]
In
the present matter, the NDPP obtained a preservation order in terms
of section 38 of POCA on the basis that the property concerned
was
the proceeds of unlawful activities alternatively instrumentalities
of an offence. Such order was granted by Kruger J on 3
October
2016.
[24]
In
anticipation of the forfeiture application, the procedural
requirements envisaged in section 48 of POCA were complied with in
that the NDPP effected service on all the respondents and affected
persons
[25]
and effected
publication of the preservation order in the
Government
Gazette
on
24 February 2017.
[26]
I
may add that the section 48 application was instituted within 90 days
of the date of publication and consequently, there has been
compliance with the procedural requirements envisaged in section 48
of POCA.
[47]
Pursuant to the preservation order, the
curator bonis
took
control of the property and filed various reports which are a matter
of record. To discharge the onus, the applicant relies
on the factual
matrix when it obtained the preservation order and the affidavits and
annexures filed in relation to the forfeiture
application. The facts
relied on when obtaining the preservation order, is summarised and
dealt with in the affidavit of Ms Ramdeen,
a senior financial
investigator employed by the National Prosecuting Authority in its
Asset Forfeiture Unit.
# The factual allegations
relied on by the applicant in the preservation application
The factual allegations
relied on by the applicant in the preservation application
[48]
Ms Ramdeen indicates that during August
2015, she was approached by a Colonel Botha from the Commercial Crime
Unit of the South
African Police Service who advised her that she was
investigating a case of fraud, under Wentworth Cas 137/08/2015,
perpetrated
against Tiger Brands by Jocatus. The fraud related to 60
invoices issued by Jocatus for alleged logistics services rendered by
Jocatus to Tiger Brands in the total value of R121 679 095.70.
[49]
Tiger Brands had discovered irregularities
in certain of its accounts and had conducted preliminary internal
investigations. These
irregularities were highlighted in statements
provided to Ms Ramdeen during her investigations.
[50]
Tiger Brands appointed Mr Gareth Seymour
(Mr Seymour), an accountant, to investigate
various
irregularities
in
its
material
usage
variants
account
and
costs
of
sales account. His investigations revealed that in the 2011 and 2012
fiscal years, there were transactions with Jocatus amounting
to R24
161 018.98 and R11 178 461.75. The description for these transactions
on the system was ‘distribution allowance’
which ought
not to have been recorded in the material usage variants account.
When Mr Seymour traced the originator of the entries
on the system,
he discovered that they were processed on behalf of an entity known
as Jocatus and the list of transactions relating
to Jocatus totalled
R121 679 095.70. These payments were charged to different financial
accounts being the balance sheet provision
account, national
distribution warehouse, materials cost of sales and customer
discounts allowance.
[51]
A contract was discovered in the office
cabinet of Gonaseelan, the financial manager at the time of the
Snacks, Treats and Beverages
Division of Tiger Brands in Jacobs. This
contract had allegedly been entered into between Tiger Brands and
Jocatus and was purportedly
signed by a former logistics manager on
behalf of Tiger Brands, being one Mr Benjamin Mamoerane. Mr
Mamoerane, when questioned
about the agreement, denied having signed
it and denied any knowledge of an entity known as Jocatus.
[52]
Investigations in relation to purchase
orders revealed that one Ms Sugeshree Mewalall (Ms Mewalall), a
receptionist at Tiger Brands,
generated purchase orders in favour of
Jocatus which she confirmed were done on the instruction of
Gonaseelan. Ms Mewalall stated
that Gonaseelan personally handed her
the Jocatus invoices for processing and Gonaseelan then approved the
purchase orders. This
involved her confirming that the services were
rendered or delivered satisfactorily.
[53]
Interviews with officials from the
logistics department at Tiger Brands who were responsible for
receiving goods or services rendered
against purchase orders,
confirmed that they were not aware of any services rendered by
Jocatus. The invoices were never seen by
the officials from the
logistics department and they were not aware of services that were
allegedly rendered by Jocatus, nor were
they aware of the tonnage,
number of loads, and rate of pay per load that was charged for the
services.
[54]
Investigations by Mr Phaphle Phalane (Mr
Phalane), the Supply Chain Executive for the Snacks, Treats and
Beverages Division of Tiger
Brands, revealed it suffered a
significant loss in May 2013 in the Mallows and Jellies Manufacturing
Unit, Jacobs. It was discovered
that on 20 April 2013, the work in
progress at the plant had been overstated by means of fictitious
entries to the value R9 109
735.49. A further overstatement was
discovered to the value of R8 043 588.08. KPMG was instructed to
conduct an investigation,
the outcome of which led to the dismissal
of one Ms Jocelyn Govender who admitted that she had deliberately
inflated the figures.
[55]
During the course of Mr Seymour’s
investigations, he together with Mr Phalane questioned Gonaseelan on
31 July 2015 about
some of the invoices which included Jocatus’
invoices. Gonaseelan alleged that the invoices had been transferred
to Isando
Shared Services. Further investigations discovered that
payments to Jocatus were made during July 2009 to September 2014.
These
payments were charged to different financial accounts and it
was subsequently discovered that these were fraudulent.
[56]
Mr Seymour and Ms Elizabeth Norval (Ms
Norval), a financial executive in the Snacks, Treats and Beverages
Division of Tiger Brands,
accessed the Tiger Brands supplier payment
enquiry accounting system, which revealed that between July 2009 and
October 2014, payments
were made into Jocatus’ FNB bank account
5[...] to a total value of R121 679 095.70. In addition, Jocatus was
not a known
vendor of the business nor were any persons nor did it
appear that anyone was aware of any services which they rendered. The
fact
that transport costs were charged to the material issues account
raised questions around the validity of the vendor.
[57]
In addition, payments to Jocatus which were
charged to different financial accounts also raised questions, as
purchase orders which
were described as either a ‘distribution
allowance’ or ‘provision of logistic services’,
were irregular
as according to Ms Norval, a distribution allowance is
only payable to customers or a third-party contracting company to
distribute
products on behalf of Tiger Brands, and such allowance is
not paid to logistics services providers.
[58]
Henry John Schimper Enslin, employed by
Tiger Brands as a financial executive for Tiger Brands’ shared
services centre, confirmed
that new vendors are opened on the JDE
system upon proper completion and authorisation of an application for
a new vendor or changes
to a vendor form.
[59]
Mr Anesh Owthar, the creditors manager,
opens accounts for new vendors, which application form must be
accompanied by a letter on
the proposed vendor’s letterhead
indicating amongst others the vendor’s postal and street
addresses, contact details,
registration number, account contact
details and VAT registration number. Such form must be signed by
three signatories. Mr Owthar
then loads the vendor information onto
the JDE system and once verified by the treasury manager having
regard to the supporting
documents, the treasury manager approves the
creation of the vendor on the system.
[60]
Purchase orders are then raised by someone
who has been granted access to do so and is then approved by a person
other than the
person who raised it. Departments which received goods
delivered or services rendered, are required to certify the
satisfactory
receipt of those goods or services on the JDE system by
processing the goods received against the relevant purchase order.
After
balancing the creditors reconciliation, the creditors
supervisor creates a batch payment on the JDE and once the payment
batch
has been authorised by authorised signatories in the Snacks,
Treats and Beverages Division, payment is approved and thereafter
payment is transmitted.
[61]
An investigation of the Jocatus
application, revealed that Mr Owthar loaded the Jocatus application,
and reviewed the payment batches
and creditors reconciliation which
Ms Mewalall had generated, with Jocatus’ purchase orders and
thereby initiated the transactions
to pay. Ms Mewalall also confirmed
the goods were receipted and costed the transport expense to the
relevant general ledger account
based on the code provided by
Gonaseelan. The treasury manager approved the opening of Jocatus as a
vendor on the JDE system and
released payments to Jocatus. Gonaseelan
coded Jocatus on the face of the invoice in order for Ms Mewalall to
raise purchase order
numbers. Gonaseelan approved the purchase orders
generated by Ms Mewalall and Gonaseelan then released payments to
Jocatus.
[62]
Ms
Mewalall confirmed that Gonaseelan approached her in 2009 to capture
invoices for Jocatus onto the JDE system to generate order
numbers.
Once she had captured the invoices, she took them to Gonaseelan for
approval. Once Gonaseelan had approved them, he would
personally
return the invoices to her to receipt them on the JDE system for
submission to the creditors department for payment.
She confirmed
that Gonaseelan would personally hand her the Jocatus invoices and
the cost centre details to which the invoices
were to be charged
against. Ms Mewalall confirmed that, having regard to the copies of
the Jocatus purchase orders and invoices
she processed from 2009 and
2014, she processed the invoices on the direct instructions of
Gonaseelan, being her senior.
[27]
[63]
Mr
Mamoerane confirmed that the enterprise development agreement dated
23 September 2009, purportedly concluded between Tiger Brands
and
Jocatus, was never signed by himself. He indicated that the signature
thereon was forged and denied ever seeing the agreement
prior to
seeing it in 2015. He confirmed what whilst employed at Tiger Brands
he did not deal with nor had he heard of Jocatus
and denied that
whilst employed there Jocatus had provided logistics services to
Tiger Brands’ Snacks, Treats and Beverages
Division. He also
confirmed that he had never seen the invoices shown to him in respect
of payments made to Jocatus for July 2009
to November 2010 nor had he
authorised such payments.
[28]
[64]
Ms Gcina Mdladla (Ms Mdladla), the
logistics clerk for Tiger Brands Snacks, Treats and Beverages
Division since July 2012, confirmed
that her main duties involved
processing and receipting of supplier invoices, verifying road
manifests for cross-border deliveries
and submitting expenses to the
logistics controller for outstanding payments. She confirmed that a
part of her duties would involve
a service provider forwarding her a
copy of the invoices together with supporting documentation including
tonnage, number of loads,
and rate of pay per load and she would
check and verify the rates per load and ensure that the supplier
details corresponded with
what had been agreed to.
[65]
Once
she had verified the information, she would create a purchase order
and forward the documents to the logistics controller for
verification who would double check the documentation and forward it
to the logistics manager for approval. Once approved, Ms Mdladla
would receive the order number for payment and she would then forward
the original invoices to the creditors department for payment.
Ms
Mdladla confirmed, when shown the invoices of Jocatus which were
processed during the period from 2009 to 2014, that she did
not
recall having ever seen such order numbers or invoices.
[29]
[66]
Ms
Mdladla’s version was corroborated by Ms Kriya Munien, the
logistics controller, who confirmed that she had never heard
of
Jocatus nor had it provided logistic services to Tiger Brands. Had it
done so, she would have been aware of it. She also confirmed
that she
had never seen the order numbers or invoices processed for Jocatus
during 2009 to 2014.
[30]
[67]
Mr
Paul Evans-Crabtree, a principal database administrator employed by
Business Connections to provide information technology services
to
Tiger Brands, confirmed that he was asked to access the JDE system of
Tiger Brands to identify the persons who had generated
the Jocatus
purchase orders, approved the orders, certified or receipted the
services rendered by Jocatus and approved the payment
of Jocatus’
invoices. He compiled a spreadsheet after accessing the JDE system
which indicated that 54 purchase orders in
respect of Jocatus were
receipted by Ms Mewalall as services rendered/satisfactorily
delivered by Jocatus.
[31]
[68]
Mr
Charles Phiri, the National Logistics Manager for beverages employed
at Tiger Brands since January 2010, confirmed that transport
service
providers are appointed via a tender and contract process in terms of
Tiger Brands’ operational systems. Since September
2009, the
main service provider for beverages distributions at Tiger Brands was
Imperial. Smaller transporters who provided delivery
services for
beverages were Logico Transport, Global Holding Transport, Doda
Transport, Biotrace Transport, Mazwani Transport,
Wallace Transport
and Overnight Logistics. Mr Phiri confirmed that he had neither heard
of nor utilised Jocatus as a logistics
service provider.
[32]
[69]
Mr
Mohamed Aslam Ebrahim Seedat, the chief procurement officer at Tiger
Brands
responsibilities
include the appointment of logistics service providers and awarding
contracts on a national basis. He confirmed
that from time to time as
part of its empowerment initiatives, Tiger Brands would enter into
enterprise development contracts with
certain service providers with
a view to developing and empowering them in the various departments
to which such services were
rendered. He was shown a copy of the
enterprise development agreement allegedly concluded between Jocatus
and Tiger Brands and
confirmed that he had neither heard of Jocatus
nor had Jocatus rendered logistics services to Tiger Brands. In
addition, he confirmed
that the main logistics service provider at
that time was Imperial and having regard to the invoices submitted by
Jocatus, it was
not physically possible for Jocatus to have moved the
volumes it claimed payment for in the invoices submitted.
[33]
[70]
Mr
Ernest Theodore Grundlingh, the risk manager for Tiger Brands’
Snacks, Treats and Beverages Division, perused the enterprise
development agreement that was allegedly concluded between Tiger
Brands and Jocatus. He proceeded to the physical address provided
in
the agreement for Jocatus and did not find any trucks belonging to
Jocatus on the premises.
[34]
## Ms Ramdeen’s
further investigations
Ms Ramdeen’s
further investigations
[71]
Ms Ramdeen’s enquiries with the CIPC
(Companies and Intellectual Property Commission) regarding Jocatus
revealed the following.
The entity was first incorporated on 28
September 1995, with its sole member being Savithree Samuel, the
first respondent. Gonaseelan
was listed as its accounting officer. On
24 March 2014, Gonaseelan resigned and one Viv Moodley was appointed.
On 25 March 2014,
Jocatus changed its name to Zion Freight CC with
its registered business address at 2[...] A[...]
Drive,
Umhlanga.
On
17
September
2014,
Zion
Freight
effected a
name
change
to Tiger
Asset Management
and
on 11
June
2016
effected
a further name change to Zion Asset
Management.
[72]
Ms
Ramdeen further discovered that Jocatus had an FNB business cheque
account with account number 5[...], first opened under the
name
Jocatus Transport CC on 25 October 1995 with the two signatories
being Savithree and her husband Mr Enoch Moses Samuel.
[35]
She did an analysis of Jocatus’ bank statements relating to
Jocatus’ operational expenses. She found that it did not
have
expenses consistent with or relating to a transport business as there
were no normal operational transport business expenses
like fuel,
truck maintenance, trailer maintenance, liability insurance, VAT
payments to SARS, staff salaries, office costs and
on the road costs
like tyres and truck parts.
[73]
In addition, an analysis of Jocatus’
bank account statements to determine if it owned any assets relating
to transportation
or logistics, revealed that it did not own any
trucks or trailers and owned two vehicles being a Toyta Hilux 2.4D
D[...] and a
Jaguar X-type 2.0 LV6 sedan. Of the 60 Jocatus invoices
generated, 18 of them bore a description ‘provision of
logistics
services’ yet the bank statements had no indication
of expenses relating to logistical services.
[74]
Ms
Ramdeen accessed copies of bank statements of Jocatus’ FNB
account from 1 June 2009 to January 2015
[36]
and
analysed such statements, which revealed deposits totalling the sum
of R125 305 937.12. Of this amount, payments made by Tiger
Brands to
Jocatus totalled R121 679 095.70. On a regular basis after Tiger
Brands had made payments into Jocatus’ bank account,
Jocatus
would immediately transfer the money to other bank accounts belonging
to inter alia the first respondent, other individuals
and certain
other entities. Jocatus further made direct payments to Ms
Maligavathee Naidoo (Ms Naidoo), Ms Lingasphrie Pillay (Ms
Pillay)
and Discovery Invest.
[75]
Savithree’s personal FNB account
initially received R4 908 600 from Jocatus. Her second bank account
with account number 6[...]
also initially received R6 9 09 000. Ms
Naidoo’s FNB account 6[...] received R70 581 369.90 and her
second account 6[...]
received R6 220 000. Ms Pillay’s FNB
account 6[...] received R28 610 843 and Discovery Invest received the
sum of R2,5 million.
The total of these payments made by Jocatus was
R119 729 812.90.
[76]
Payments made by Tiger Brands to Jocatus
are reflected in a schedule marked annexure MR18. When Tiger Brands
made payments to Jocatus,
Jocatus would thereafter make payments into
the following bank accounts: Savithree’s personal FNB account;
Savithree’s
second FNB account 6[...]; Ms Naidoo’s two
bank accounts with FNB (6[...] and 6[...]); Ms Pillay’s FNB
account 6[...];
Mr Caleb Samuel’s (Caleb) two FNB accounts
6[...] and 6[...]; Gonaseelan’s FNB bank account 6[...], his
Standard Bank
account 2[...], his Standard Bank Money Market account
2[...], and his Standard Bank Fixed Deposit account 0[...]; and two
Investec
accounts held by one Mr Vernon Naidoo, the first being an
Investec Private Bank account 1[...] and an Investec Prime Saver Bank
account 1[...].
[77]
Ms
Ramdeen then analysed Savithree’s first personal FNB account
6[...]. This is an FNB Premier Cheque account. The initial
credit
balance before payments were received from Jocatus’ bank
account was R1 045.83. Forty payments totalling R4 908 600
were paid
from Jocatus’ bank account into this account. This is reflected
in annexure MR19.
[37]
An
analysis of this account reveals that it received payments totalling
R37 856 251.37 which were initially the proceeds of fraud
that were
received into Jocatus’ bank account.
[78]
The account, according to Ms Ramdeen, is
inconsistent with the operation of a personal bank account as the
deposits are too high
and mainly in round figures. Payments from this
account were made to Maritz Boshoff and Du Preez Attorneys, Sanlam
and Gonaseelan.
Payments to Maritz
Boshoff and Du Preez Attorneys
[79]
An
analysis by Ms Ramdeen of this account reflected 17 payments to
Maritz Boshoff and Du Preez Attorneys in the total sum of R965
000,
which payments were described on Savithree’s bank statement as
‘MARTIZ BOSHOFF AND DU CALEB ENOCH SAMUEL’.
This is
reflected in annexure MR21.
[38]
[80]
Ms
Ramdeen’s enquiries with Maritz Boshoff and Du Preez Attorneys
confirmed, by way of an affidavit from Mr Carl Johannes
Boshoff
(annexure MR22),
[39]
that
these payments were for the transfer of three properties in a scheme
known as Cupido Gardens and that Savithree paid for the
purchase of
three sectional title properties being units 35, 232 and 30.
[81]
In respect of unit 35 Cupido Gardens, nine
payments in the total amount of R475 000 were paid by Savithree to
Maritz Boshoff and
Du Preez Attorneys. This property was subsequently
registered in the name of Mr Joash Enoch Samuel (Joash). Unit 232
Cupido Gardens,
a garage, was sold for a purchase price of R55 000
paid for as follows.
Savithree
made two payments to Maritz Boshoff, in the sum of R15 000, a payment
of R18 200 was made from an unidentified source
and a further R21 800
was paid by Blue Dot Properties. These properties are registered in
the name of Joash. In respect of unit
30, six payments totalling R475
000 were made by Savithree using her personal FNB account and the
property was subsequently registered
in the name of Mr Titus Enoch
Samuel (Titus).
[82]
According to Ms Ramdeen, the monies used to
purchase these properties are the proceeds of the Jocatus fraud.
Payments for these
properties were made from Savithree’s
personal FNB account during the period from 21 February 2012 to 5
April 2014. Savithree’s
FNB account received the following
amount from Jocatus:
(a)
Payments totalling R4 341 300 during the
period from February 2012 until 5 April 2014;
(b)
Payments
totalling
R1
000 850
for
the
period
from
21
February
2012
until
4
February 2013; and
(c)
Payments totalling R10 362 300 from
Savithree’s second FNB account 6[...] during the period from 21
February 2012 until 6
June 2013.
The Sanlam policies
[83]
From an analysis of Savithree’s
personal FNB account, Ms Ramdeen discovered several payments to
Sanlam. She was advised by
Ms Cindy Cloete of Sanlam as to the nature
of these payments and Ms Cloete confirmed that Savithree has three
active policies,
being a Matrix Top Cover policy (1[...]), Stratus
Endowment policy (4[...]6) and a second Stratus Endowment policy
(4[...]9).
[84]
In respect of the Matrix Top Cover policy,
Ms Ramdeen’s enquiries revealed that the policy was taken out
on 1 April 2004 and
was for life cover. From 4 August 2009,
Savithree’s personal FNB account had begun receiving the
proceeds of the Jocatus
fraud. Consequently, the payments for this
policy constitute the proceeds of crime. In respect of the first
Stratus Endowment policy,
this policy was taken out on 17 January
2014 and the current premiums which are paid are R12 100 per month.
From 4 August 2009,
Savithree’s FNB account began receiving the
proceeds of the Jocatus fraud and consequently these are the proceeds
of crime.
Ms Ramdeen’s investigation also uncovered that
Savithree has no other lawful source of income except payments
received from
the Jocatus fraud.
[85]
In respect of the second Stratus Endowment
policy, this policy also commenced on
30
January
2014
and
the
monthly
premiums
which
are
currently
paid
up,
are
R6 050 per month. Similarly, the policy is the proceeds of crime.
[86]
From
4 August 2009 to 27 October 2011, Savithree made 23 payments to
Gonaseelan Govender totalling R6 938 561.28 from the account.
Annexure MR30
[40]
reflects the
payments from Savithree’s account 6[...] into Gonaseelan
Govender’s Standard Bank Prestige Plus account.
Savithree’s
second FNB Money on Call account 6[...]
[87]
Ms
Ramdeen accessed bank statements for this account from 31 March 2009
to 30 June 2013. A sample of 10 bank statements reveal that
20
payments totalling R6 909 000 were made from Jocatus’ bank
account into the second FNB bank account. This is reflected
in
annexure MR32.
[41]
It is
self-evident from the schedule that the payments made into this
account were within days after Jocatus had received payments
from
Tiger Brands.
[88]
On
receiving proceeds from Jocatus, Savithree would also transfer monies
back to Jocatus. This is reflected in annexure MR33
[42]
which shows that for the period from 11 September 2009 to 6 April
2011, Savithree made 12 payments totalling
R130
900 back to Jocatus. Within a short space of time, R16 263 150 was
transferred to Savithree’s personal FNB account which
included
proceeds from Ms Naidoo’s FNB account 6[...]. Savithree’s
second FNB account also received payments from Jocatus
and Ms Naidoo,
and she transferred these funds to her FNB personal account.
[43]
Ms Naidoo’s FNB
account 6[...]
[89]
Ms
Ramdeen accessed Ms Naidoo’s FNB account for the period from 3
February
2010
to
14
November
2013.
Jocatus
made
39
payments
totalling
R70 581 369.90 into Ms Naidoo’s first FNB account. These 39
payments are set out in annexure MR35.
[44]
Ms
Ramdeen’s analysis of Ms Naidoo’s first FNB account
showed that on receiving payments from Tiger Brands, Jocatus
would
transfer money into Ms Naidoo’s first FNB account and shortly
thereafter Ms Naidoo would transfer these proceeds to
her FNB Gold
cheque account 6[...]. Three payments totalling R6 220 000 were made
by Jocatus into Ms Naidoo’s second FNB
account. After receiving
the proceeds from Jocatus, Ms Naidoo then transferred R5 850 000 into
her FNB account.
Ms Naidoo’s
second FNB account
[90]
For
the period from 3 February 2010 to 14 November 2013, Ms Naidoo’s
second FNB account received a total of 192 payments totalling
R86 709
514.63. A schedule of these payments is annexed as annexure MR37.
[45]
These
deposits were thereafter paid by Ms Naidoo into her second FNB
account.
[91]
From Ms Naidoo’s second FNB account,
she then transferred the proceeds to Gonaseelan, Savithree and a firm
of attorneys, Ponnen
Pienaar and Associates. Ms Ramdeen’s
investigations reveal the following:
(a)
Ms
Naidoo made 66 payments totalling R52 238 157.45 to Gonaseelan’s
Standard Bank account 2[...], evidenced by annexure MR38;
[46]
and
(b)
On
23 October 2010, Ms Naidoo paid R1 421 632 from her second FNB
account into Gonaseelan’s FNB account 6[...], as evidenced
by
annexure MR39.
[47]
[92]
It is thus evident that the payments made
by Ms Naidoo into Gonaseelan’s respective banks accounts were
the proceeds of unlawful
activities in the hands of Gonaseelan. These
proceeds were initially in the hands of Jocatus and were channelled
to Ms Naidoo’s
first FNB account and then to her second FNB
account and thereafter transferred to Gonaseelan’s bank
account. Ms Naidoo in
moving the proceeds through many bank accounts,
attempted to disguise the proceeds. This was to make the proceeds
entering into
Gonaseelan’s accounts appear as legitimate
income. Had she however done so straight from Jocatus’ bank
account into
Gonaseelan’s bank account, it would have created a
link between her, Jocatus, Gonaseelan and Tiger Brands.
[93]
Ms
Naidoo also made 35 payments, as evidenced by annexure MR40,
[48]
into
Savithree’s second FNB account totalling R6 412 000.
[94]
An analysis of Ms Naidoo’s second FNB
account reflected a payment made on 22 September 2013 of R2 050 000
to Ponnen Pienaar
and Associates. The attorneys confirmed
receiving a payment of that amount for the transfer of a property
described as Erf
1[...], U[...] R[...] which was purchased for the
fifth and sixth respondents, Gonaseelan’s brother and his wife.
[95]
On 6 August 2013, Jocatus paid R1 900 000
into Ms Naidoo’s second FNB account and on the same day, Ms
Naidoo transferred R1
750 000 to her first FNB account. On 20 August
2013, Ms Naidoo transferred R220 000 from her second FNB account to
her first FNB
account. The total proceeds transferred were R2 120
000. On 2 September 2013, Ms Naidoo transferred R2 050 000 back to
her second
FNB account and on the same day, paid Ponnen Pienaar and
Associates. The balance was paid by means of a deposit of R150 000 on
1 August 2013.
[96]
Consequently,
the applicant alleges the property owned by the fifth and sixth
respondents was purchased with the proceeds of crime
and it
axiomatically follows that it is the proceeds of unlawful activity in
the hands of the fifth and sixth respondents.
[49]
[97]
Ms Ramdeen, from her analysis of
Savithree’s and Ms Naidoo’s various bank accounts,
indicates efforts by Savithree to
distance the source of monies in
her bank account from that of Jocatus’ bank account. In order
to do so, both Ms Naidoo’s
FNB accounts were utilised for this
purpose. Ms Naidoo’s bank accounts were utilised to receive the
proceeds from Jocatus’
bank account and thereafter to pay these
monies to Savithree and Gonaseelan. This is evident from the fact
that the transactions
are frequent and the amounts transferred are in
round figures. This is clearly not consistent with the operation of
personal bank
accounts.
[98]
An analysis of Ms Naidoo’s various
bank accounts reflects payments to the following persons in the
following amounts. In respect
of Gonaseelan’s Standard Bank
account 2[...] an amount of R52 238 157.45; Gonaseelan’s FNB
account 6[...] an amount
of R14 221 632; Savithree’s FNB
account 6[...] an amount
of
R6 412 000;
and
payment
to
Ponnen
Pienaar
and
Associates
of R2 050 000. These transfers to the
various bank accounts from Ms Naidoo totalled R62 121 789.45.
[99]
Ms
Pillay’s Platinum FNB Cheque account 6[...], for the period
from 25 September 2013 to 25 July 2015, received 17 payments
totalling R28 610 843 from Jocatus. A schedule of these payments is
annexed as annexure MR45.
[50]
Shortly after Ms Pillay’s FNB account received these monies
from Jocatus, she disbursed the majority of these funds to Sanlam
and
Gonaseelan. Sanlam was paid R22 500 000 and GonaseelanR2 208 956.66.
This total equates to R24 708 956.66.
[100]
Ms
Ramdeen established that Ms Pillay made six payments totalling R22,5
million into a Sanlam Glacier Investment account soon after
she had
received these monies from Jocatus. These were lump sum payments and
from her investigations, she had established that
Ms Pillay made
these payments on behalf of Savithree for her son, Caleb. Ms Cloete’s
affidavit confirms the six payments
and Ms Ramdeen’s affidavit
deals with the flow of funds from Jocatus to Ms Pillay to Sanlam:
[51]
(a)
On 3 February 2014, Tiger Brands paid
Jocatus R2 475 627 and on 6 February 2014, Jocatus paid Ms Pillay R2
201 364. On 14 February
2014, an amount of R5 million was invested
with Sanlam;
(b)
On 1 April 2014, Tiger Brands paid Jocatus
R2 380 523 and on 2 April 2014 Jocatus paid Ms Pillay R2 650 000. On
2 April 2014, R6
million was invested with Sanlam;
(c)
On 3 May 2014, Tiger Brands paid Jocatus R
2 475 725 and on 5 May 2014 Jocatus paid Ms Pillay R2 400 000. On 5
May 2014, an amount
of R3 million was invested with Sanlam;
(d)
On 2 June 2014, Tiger Brands paid Jocatus
R2 346 211 and on 4 June 2014 Jocatus paid Ms Pillay R2 224 000. On 4
June 2014, R3 million
was paid to Sanlam; and
(e)
On 1 October 2014, Tiger Brands paid
Jocatus R3 346 725 and on 6 October 2014, Jocatus paid Ms Pillay R3
million. On 6 October 2014,
an investment with Sanlam
of
R2,5
million
was
made.
On
10
October
2014,
Jocatus
paid
Ms
Pillay R53 000 and on 28 October 2014 made
another payment to her of R70 000. On 28 October 2014, R3 million was
paid to Sanlam.
[101]
It is for these reasons that Ms Ramdeen
concluded that the payments which were made from Jocatus to Ms Pillay
to Sanlam constitute
the proceeds of unlawful activities in the hands
of Caleb.
[102]
Ms Cloete confirms that a payment of R5
million was made on 14 February 2014 from Ms Pillay’s FNB
account 6[...] into a Glacier
Investment account 4[...]6, held in the
name of Savithree. On 12 March 2014, Savithree gave Sanlam
instructions to transfer these
funds from her Glacier Investment
account 4[...]6 into an account which was to be held by Caleb in an
amount of R4 978 606.13 under
Glacier Investment Plan 4[...]0, which
was opened on 13 March 2014.
Caleb
[103]
Caleb’s Glacier Investment account
4[...]0 reflects five further deposits, confirmed by Ms Cloete, which
occurred as follows:
(a)
On 16 April 2014, R6 million was deposited
into this account. According to Ms Cloete, money for this payment was
received from an
FNB bank account ending in 2667. Ms Ramdeen
discovered that this R6 million was paid from Ms Pillay’s FNB
account on 2 April
2014 to an account described on Ms Pillay’s
bank statement as ‘ATM Pmt to Sanlam M[...]’;
(b)
On 6 May 2014, R3 million was deposited
into the investment account which was received from an FNB account
ending in 2667. Similarly,
Ms Ramdeen confirms that this deposit came
from Ms Pillay’s FNB account on 5 May 2014;
(c)
Ms Ramdeen confirmed that the further
payment of R3 million on 5 June 2014, emanated from Ms Pillay’s
FNB account on 4 June
2014;
(d)
In October 2014, R2 million was also paid
into the investment account. Ms Ramdeen confirms the deposit emanated
from Ms Pillay’s
account on 6 October 2014; and
(e)
Ms Ramdeen confirmed that the R3 million
deposited on 30 October 2014, emanated from Ms Pillay’s FNB
account on 28 October
2014.
[104]
Ms Cloete’s affidavit further
confirms that Caleb made nine withdrawals from this investment. On 3
July 2014, Caleb withdrew
R1,5 million from this investment account
and deposited the money into his FNB account 6[...]. Subsequently, on
8 July 2014, Caleb
paid the same amount into Savithree’s
Discovery Endowment Plan 8[...]. The nine withdrawals made by Caleb
and deposited into
his respective FNB bank accounts 6[...] and
6[...], occurred on the following dates and in the following amounts,
namely,
(a)
3 July 2014: R1,5 million;
(b)
9 December 2014: R2 million;
(c)
20 January 2015: R700 000;
(d)
16 March 2015: R1,5 million;
(e)
7 April 2015: R500 000;
(f)
9 April 2015: R1 million;
(g)
17 April 2015: R1 million;
(h)
13 May 2015: R1 150 000; and
(i)
28 August 2015: R5 200 000.
[105]
These payments totalled R14 550 000.
Similarly, Ms Ramdeen concludes that this represents the proceeds of
the fraud channelled from
Jocatus to Ms Pillay, and from Ms Pillay to
Sanlam, and eventually moved from Sanlam into Caleb’s two FNB
accounts. It is
for these reasons that the applicant submits that the
money in the investment account is the proceeds of the fraud and is
liable
to forfeiture.
[106]
Ms
Ramdeen analysed Caleb’s FNB account 6[...] for the period from
6 August 2014 to 31 December 2015. An analysis of
this
account confirmed that
R13
050 000 entered into this account from the nine withdrawals made for
the Glacier Investment. Over this period of time, Caleb
effected
payments to different persons using his FNB account as follows:
Joash: R3 351 600; Jocatus: R3 690 000; Discovery Invest:
R1,7
million; Discovery Invest: R300 000; Savithree: R100 000; Glucoles
Pharmaceutical (an entity which has Savithree as a 100%
member): R450
000 and R100 000 respectively; and Mr Enoch M Samuel, Caleb’s
father: R5 000. In addition, Caleb
effected
payment
into
his
FNB
account
6[...]
of
the
sum
of
R5
350 000.
[52]
[107]
Ms
Ramdeen’s analysis of Caleb’s second FNB account 6[...]
for the period from 30 May 2014 to 30 November 2015
[53]
reflects
the following payments: a deposit of R1 million on 8 August 2014 to
Discovery Invest, and payments totalling R7 500 to
his brother Joash.
Consequently, Ms Ramdeen concluded that these amounts are the
proceeds of the Jocatus fraud.
Gonaseelan
[108]
On 2 October 2013, Ms Pillay received R2
462 800 from Jocatus. On 3 October 2013, Ms Pillay transferred R2 338
000 to Gonaseelan’s
account 6[...]. On 1 November 2013, Ms
Pillay received R2 050 100 which was suspected to be from
Gonaseelan’s account. On
the same day, Ms Pillay made two
payments of R2 050 098 and R50 396.66 to Gonaseelan. Ms Ramdeen
subsequently confirmed that these
two payments effectively reached
Gonaseelan’s Standard Bank Private Plus current account 2[...].
[109]
Ms Pillay received R2 207 762 from Jocatus
on 6 November 2013 and on the following day, 7 November 2013, Ms
Pillay paid R107 762
to Gonaseelan. These funds were traced to
Gonaseelan’s Standard Bank Private Plus current account 2[...].
[110]
Consequently, Ms Ramdeen alleges the funds
in Gonaseelan’s Standard Bank Private Plus current account are
the proceeds of
crime.
Discovery Invest
[111]
Ms
Ramdeen approached Discovery Invest regarding the deposits and
investments made by Jocatus or Savithree and was provided with
an
affidavit from Ms Diane Jarvis (Ms Jarvis)
[54]
and
was able to obtain the following information. On 1 July 2014,
Tiger
Brands
paid
Jocatus
R2
316 528.28.
On
6
July
2014,
Savithree
paid
Jocatus R200 000 from her FNB personal account. On 8 July 2014 an
amount of R2,5 million was paid from Jocatus’ bank
account to
Discovery Invest.
[112]
In
respect of the Discovery Endowment Plan investment 8[...], Ms Jarvis
confirmed that on 10 July 2014, Savithree invested in this
endowment
plan with Discovery. A lumpsum contribution of R4 million was made
into this investment as follows: R2,5 million paid
from Jocatus, and
R1,5 million paid from Caleb’s FNB account 6[...]. Payment of
both these amounts were made to Discovery
Invest on 8 July 2014.
Annexure MR49 reflects the payment by Caleb to Discovery Invest for
this investment.
[55]
[113]
The R2,5 million paid to Discovery Invest
originally emanated from Jocatus as demonstrated
by
the
following:
On
1
July
2014,
Tiger
Brands
paid
Jocatus R2 316 528.28. On 6 July 2014,
Savithree paid R200 000 to Jocatus. On 8 July 2014, R2,5 million was
paid by Jocatus to Discovery
Invest. The R1,5 million paid by Caleb
to Discovery Invest represented the proceeds he received on 3 July
2014 from his withdrawal
of funds from his Sanlam Investment. The
initial proceeds in the hands of Jocatus were paid over to Ms Pillay
who in turn paid
these proceeds into the Glacier Investment. R1,5
million was withdrawn from the Glacier Investment account and paid
into Caleb’s
FNB account 6[...] and thereafter Caleb paid the
proceeds to Discovery Invest on behalf of Savithree.
[114]
In
respect of the Endowment Investment Plan 8[...]9, Ms Jarvis confirmed
that on 19 March 2015, Savithree invested in this policy.
She paid a
lumpsum contribution of R1,7 million and this payment to Discovery
Invest was facilitated on 18 March 2015 from Calebs’
FNB
account 6[...]. This is evidenced by annexure MR51.
[56]
[115]
R1,5 million of the R1,7 million paid by
Caleb to Discovery Invest represents the proceeds that were paid
through the withdrawal
from his Glacier Investment policy on 16 March
2015. A further R200 000 was paid on 18 March 2015 from Caleb’s
FNB account
6[...].
[116]
By 30 October 2015, Ms Pillay had
channelled a total of R22,5 million of the proceeds received from
Jocatus into Caleb’s Sanlam
Policy. On 10 March 2015, Caleb
withdrew R1,5 million and paid this into his FNB account ending with
051. On 18 March 2015, Caleb
again paid R1,7 million from this
account into Savithree’s Discovery Endowment Policy ending with
[...]8.
[117]
Ms Jarvis also confirmed that on 1 October
2010, Savithree invested in Discovery Endowment Plan 8[...]2. The
monthly premium due
was R1 000 with an annual escalation of 10
percent and the premium was paid from Savithree’s first FNB
account. Ms Ramdeen
analysed Savithree’s bank statements for
this account and confirmed that payments were regularly made from
this bank account
to the investment policy. At the time of this
investment, Savithree had already started receiving payments from
Jocatus into this
bank account.
[118]
It is for these reasons that the applicant
submits that the payments from these accounts were the proceeds of
crime but were attempted
to be disguised as legitimate investments
hidden in the various investments made with Discovery.
Payments to Gonaseelan
[119]
For the period from 1 June 2009 to 20
December 2013, Savithree, Ms Naidoo, Ms Pillay and Caleb paid a total
amount of R64 106 507.39
to Gonaseelan. Of this amount, R60 684
875.39 was paid into Gonaseelan’s Standard Bank Prestige
Current account 2[...], and
the remainder of R3 421 632 was paid into
his FNB account 6[...]. These monies are the proceeds that were paid
by Tiger Brands
into Jocatus’ bank account, which were then
moved from Jocatus to various bank accounts belonging to Savithree,
Ms Naidoo
and Ms Pillay, before it ultimately reached Gonaseelan.
[120]
Ms Ramdeen analysed the monies received by
Gonaseelan and her investigations revealed the following: Savithree
paid R6 238 461.28
into Gonaseelan’s Standard
Bank
account
2[...],
and
Ms
Naidoo
paid
R52
238 157.45
into
his Standard
Bank
account,
and
R1
421
632
into
his
FNB
account.
Ms
Pillay
paid
R2 208 256.66 into Gonaseelan’s Standard Bank account and Caleb
paid R2 million into his FNB account. Gonaseelan, on
receiving these
amounts, would move them from his Standard Bank and FNB accounts into
a Standard Bank Money Market account 2[...]
and a Standard Bank Fixed
Deposit account 0[...].
[121]
Ms
Ramdeen analysed these two bank accounts,
[57]
and
discovered the following transfer of funds: For the period from 12
January 2010 to 30 September 2015, Gonaseelan transferred
monies from
his Standard Bank account 2[...] to this Money Market account. The
transactions would often be described as ‘IB
TRANSFER TO RITA’.
This is the name used by Savithree. Although the description
reflected ‘IB TRANSFER TO RITA’
the monies were actually
transferred to Gonaseelan’s Money Market account and not to
Savithree.
[122]
Even though he attempted to conceal the
source and destination of these monies, it still shows a thread of
transfers from Savithree
and Jocatus. 55 payments were made from his
Standard Bank account 2[...] to his Money Market account totalling
R57 983 950.08.
This is evidenced by annexure MR56. These monies
would be moved from the Money Market account back to the Standard
Bank account.
He made 210 payments totalling R51 275 200 from the
Money Market account back to his Standard Bank account as is
evidenced by annexure
MR56. The most significant of payments
identified by Ms Ramdeen was a payment made on 20 July 2012 where
Gonaseelan transferred
R15 million to a Standard Bank Fixed Deposit
account 0[...].
Gonaseelan’s
Standard Bank Fixed Deposit account 0[...]
[123]
Ms
Ramdeen analysed the bank statements for this account for the period
from 20 July 2012 to 21 July 2014. The account was closed
on 20 July
2014. A deposit of R15 million was made on 20 July 2012 from
Gonaseelan’s Money Market account. The money remained
in the
account for approximately two years and thereafter on 21 July 2014,
R15 million was transferred back to Gonaseelan’s
Money Market
account and
the
account
was
closed.
The
interest
of
R1
682 301.47
was
paid
into
Gonaseelan’s Standard Bank Prestige account 2[...]. The amount
of interest paid is annexed as annexure MR58.
[58]
Subsequently,
on 26 September 2014, the money was moved from Gonaseelan’s
Money Market account to his Standard Bank Prestige
account 2[...].
After receiving the proceeds from Savithree, Ms Naidoo and Ms Pillay,
Gonaseelan then made payments from this account
to the following
persons: Mr Vernon Naidoo, Garlicke and Bousfield Attorneys, G&K
Trust, Strauss Daly Attorneys, L&L Construction
and Kanavalie
Govender.
Mr Vernon Naidoo
[124]
Ms Ramdeen found two bank accounts in Mr
Vernon Naidoo’s name at Investec. Private Bank account 1[...]
and Investec Prime
Saver bank account 5[...]9. On 26 September 2015,
after Gonaseelan had transferred R15 million into his Standard Bank
account,
he then transferred the money to the Investec bank account
of Mr Vernon Naidoo. On Gonaseelan’s bank statement the
transfer
is referred to as ‘Interbank Transfer V Naidoo’.
Investec Bank provided Ms Ramdeen with the relevant bank statements
of Mr Vernon Naidoo for the period from 10 August 2014 to 10 March
2016. Her analysis of Mr Vernon Naidoo’s Investec Private
Bank
account 1[...] confirmed receipt of the payment of R15 million by
Gonaseelan on 26 September 2014.
[125]
After the R15 million had been received
into Mr Vernon Naidoo’s account, the monies were disbursed in
the following manner:
(a)
Mr
Vernon
Naidoo
paid
R1,8
million
to
what
was
described
as
‘Transfer
G Govender funds’ on 20 October 2014;
(b)
Seven
payments totalling R1 050 000 to Gonaseelan’s Standard Bank
account 2[...], as is evidenced from annexure MR60;
[59]
and
(c)
On
4
March
2015,
Mr Vernon
Naidoo
transferred
R11,5
million
to
his
Prime
Saver account 1[...].
[126]
The
Prime Saver Bank account of Mr Vernon Naidoo was analysed for the
period from 1 March 2015 to 30 June 2016.
[60]
On
4 March 2015, the transfer of R11,5 million is reflected in Mr Vernon
Naidoo’s Prime Saver Investec Bank account.
[127]
The above investigations by Ms Ramdeen
formed the basis of the evidence in the preservation application and
resulted in the preservation
order, and continues to form the basis
on which the applicant relies in seeking the forfeiture order. It has
specifically requested
that the affidavits and annexures in the
preservation application be incorporated into the forfeiture
application. To some extent
the applicant also relies on the reports
of the curator bonis in relation to the property.
# Opposition to forfeiture
application
Opposition to forfeiture
application
[128]
Shortly after the respective notices of
opposition were filed certain of the respondents filed affidavits in
terms of s 39(3) of
POCA.
# The section 39(3)
affidavits
The section 39(3)
affidavits
[129]
In her section 39(3) affidavit, Savithree
seeks to have her interest in the various endowment plans with
Discovery, and the Sanlam
Stratus and Matrix policies which are in
her name excluded from the operation of the forfeiture order on the
basis that not all
the money invested in these plans emanated from
the fraud perpetrated on Tiger Brands and the alleged proceeds of
unlawful activities
of Gonaseelan.
[130]
She submits that money, legitimately
earned, was invested in these policies. She is unable to quantify the
precise amounts of the
legitimate earnings invested in the policies,
but indicated that she would do so before the hearing of the
forfeiture application.
By the time of the filing of written
submissions, she had not done so.
[131]
Caleb seeks the exclusion of his interest
in the monies held in his FNB account 6[...], on the basis that this
is his current account
from which he conducts all his personal
banking and the monies are legitimately due to him arising from his
salary and other lawful
income.
[132]
Titus claims ownership of section 30 of
Cupido Gardens and seeks in the alternative the exclusion of his
interest in the operation
of the forfeiture order on the following
grounds:
(a)
the majority of the funds used to purchase
the immovable property were lawfully earned and generated by him and
consequently he
is an innocent owner;
(b)
in the alternative, if the applicant
establishes that any portion of the purchase price in respect of the
immovable property constitutes
the proceeds of unlawful activity, he
was unaware of this as he received financial assistance from his
mother, Savithree, on the
understanding that the funds were hers and
were legitimate funds;
(c)
the property is fixed immovable property
and is an indivisible asset and consequently in circumstances where
he has paid a major
portion of the purchase price for the immovable
property from legitimate funds, it will be disproportionate and/or
inequitable
for the court to order him to forfeit it, alternatively
for the court to order the sale of the immovable property; and
(d)
indicates that the six payments towards the
purchase price were paid from Savithree’s FNB account 6[...].
This represented
the return on his investment in his mother’s
investment business.
[133]
Joash, as the registered owner of sections
35 and 232 of Cupido Gardens, opposes the granting of a forfeiture
order, alternatively
seeks an order excluding his interest from the
operation of any forfeiture order on the following grounds:
(a)
the majority of the funds used to purchase
the properties were lawfully earned and generated by himself and he
is consequently an
innocent owner;
(b)
if the applicant establishes that any
portion of monies utilised to acquire the immovable properties are
the proceeds of unlawful
activates, that he was unaware of this and
received financial assistance from his mother, Savithree, on the
understanding that
the monies were hers and were legitimate income;
and
(c)
the properties are fixed immovable
properties and are indivisible and consequently in circumstances
where he paid a major portion
of the purchase price to acquire these
immovable properties from legitimate income, it would be
disproportionate and inequitable
to order him to forfeit same or for
the state to order their sale.
# The factual matrix in
respect of the forfeiture application
The factual matrix in
respect of the forfeiture application
[134]
As already mentioned the applicant relies
on the application papers submitted in the preservation papers in
support of its forfeiture
application and has requested that the
papers in the preservation application be specifically incorporated.
# The opposition advanced
by the respondents to the forfeiture order and the applications for
the exclusion of their interests
The opposition advanced
by the respondents to the forfeiture order and the applications for
the exclusion of their interests
Savithree
[135]
In her answering affidavit in opposition to
the forfeiture application, Savithree acknowledges that the basis of
the applicant’s
case for forfeiture is fraud committed by
Gonaseelan against his employer, Tiger Brands, in the sum of R121 679
095.70. She notes
that there is no allegation that she perpetrated
the fraud on Tiger Brands, and consequently the applicant’s
case is based
on her receiving and possessing the proceeds of the
unlawful activities by Gonaseelan. Because the application is not an
application
against her in her personal capacity and is an
application
in rem,
she
indicates that she does not intend to address each and every
allegation made, and instead focusses on that property which she
seeks to have excluded from the operation of any forfeiture order.
[136]
The items which she seeks to have excluded
from the operation of any forfeiture order are items 5 to 12 in
annexure B which are
bank accounts and policies in her name.
[137]
The first bank account she deals with is
that of her FNB Premier Cheque account 6[...], which she indicates is
her personal bank
account. The account is currently overdrawn in the
amount of R65 151.79 and she disputes Ms Ramdeen’s evidence
that the account
has a positive balance. Savithree seeks to have it
excluded because there is no value in the bank account as it is
overdrawn, and
there is thus nothing to be forfeited and she wants to
continue to utilise this bank account as it is her personal account.
She
considers herself liable for the overdraft. In addition, she
maintains that the majority of the money deposited into this personal
account were not the proceeds of the Jocatus fraud.
[138]
She
acknowledges
that
Ms
Ramdeen
[61]
indicates
that
a
total
amount
of
R4 908 600 and R37 856 251.37 was deposited into this account from
Jocatus’ bank account. She submits that Ms Ramdeen does
not
proffer any evidence to show that the monies were the proceeds of the
Jocatus fraud.
[139]
She submits that an analysis of the
deposits in this personal bank account show that substantial deposits
were made by individual
investors which were unrelated to the fraud.
It is for these reasons that she submits that these deposits by the
investors are
not the proceeds of the Jocatus fraud. In support of
this contention, she annexes as annexure SS2, which is an extract
from the
bank account which reflects deposits made for the period
from 22 January 2010 to 24 December 2014 by various depositors. The
total
of these deposits made is R16 128 812.
[140]
According to Savithree, these depositors
were investors who were part of a group who collectively invested in
a variety of commodities
and resources, which investments she managed
for them utilising her personal account. In addition, there are
deposits from Titus
and Joash which were deposits made with her for
investment purposes. All the persons who deposited such monies into
her personal
bank account expected returns on their investments.
[141]
Joash’s and Titus’ returns on
their investments were constituted by payments, in lieu of returns,
for the purchase of
the property situated at 30 Cupido Gardens in
respect of Titus, and for the purchase of the property situated at 35
Cupido Gardens
in respect of Joash. These were legitimate payments
made in lieu of their return on the investments and were utilised to
purchase
the properties. These were legitimate monies and were not
the proceeds of unlawful activities.
[142]
In respect of 232 Cupido Gardens, she paid
R15 000 from her personal account on behalf of Joash and these were
legitimate monies
due to him based on his investment. The amount of
R21 800, which is a payment by Blue Dot Properties towards the
purchase of unit
232 Cupido Gardens, was rental collected due to
Joash who let out of his property; Blue Dot Properties being the
managing agent
which collected the rental. Consequently, these were
not the proceeds of unlawful activities.
FNB Money Market Call
account 6[...]
[143]
This account is in Savithree’s name
and has a zero balance. Because the account has no value, and there
are no monies to forfeit,
she requests that the account be released
to her as she wishes to continue operating same.
Discovery Endowment
Plan policy 8[...]
[144]
Savithree confirms that the payments into
the policy are as set out by Ms Ramdeen. She seeks to exclude a
payment of R200 000 from
such policy as this payment was made by her
from her personal account on 6 July 2014 into Jocatus’ bank
account. Such amount
emanated from her personal FNB account 6[...].
These were amongst the legitimate payments which were made into this
account in
the total sum of R16 128 812. Consequently, such amount
should be excluded as it is not the proceeds of unlawful activities.
Discovery Endowment
Plan policy 8[...]2
[145]
This policy was taken out on 1 October 2010
and a monthly payment of R1 000 was paid towards the policy. These
payments emanated
from her FNB account into which legitimate payments
were made. Consequently, she seeks to have the entire policy excluded
from
any forfeiture order.
Discovery Endowment
Plan policy 8[...]8
[146]
Savithree indicates that the payment for
this policy was made from her son Caleb’s
FNB
account
and
that
she
does
not
seek
to
exclude
any
portion
of
the
R1 700 000 paid into this policy on 18 March 2015. She did, however,
make enquires with her broker at FNB and discovered that
a further
sum of R300 000 was paid into this policy on 27 March 2015.
[147]
As she was not able to establish the source
of the additional R300 000, she invited the applicant to investigate
the payment and
its origin. She stated that she would conduct her own
investigations, and reserved her right to supplement her affidavit to
seek
the exclusion of the sum of R300 000 in the event that it
represents
legitimate proceeds. She
has not supplemented her affidavit to deal with the exclusion of such
amount.
Sanlam Stratus
Endowment policy 4[...]6
[148]
This policy was taken out on 17 January
2014 and the monthly premiums of R12 100 were paid from her personal
FNB account 6[...].
She seeks to exclude the entire policy from any
forfeiture order, as although Ms Ramdeen contended that from 4 August
2009 her
FNB accounts began receiving the proceeds from the alleged
Jocatus fraud, Savithree contends that the applicant has failed to
have
regard to the fact that legitimate proceeds were also in her
personal FNB account from which payments for this policy could have
been made.
Sanlam Stratus
Endowment policy 4[...]9
[149]
This policy commenced on 30 January 2014
and the monthly premiums were being paid for from her FNB personal
account 6[...]. She
submits that these payments emanated from
legitimate proceeds in her FNB account and the applicant has failed
to prove that the
monthly payments were made from the proceeds of
unlawful activities. Consequently, this entire policy should be
excluded from any
forfeiture order.
Sanlam Matrix Top
Cover policy 1[...]
[150]
The policy commenced on 1 August 2004, long
before the commission of the alleged fraud by Gonaseelan. The
fraudulent payments, according
to Ms Ramdeen, only commenced on 4
August 2009 which was more than five years after the policy was taken
out. The applicant does
not quantify which portion of this policy was
serviced from the proceeds of unlawful activities and which portion
is from legitimate
income. Consequently, she submits that all
payments toward the policy were legitimate. She is unable to state
the precise dates
when the policy was first serviced from Jocatus’
bank account during the period prior to the alleged fraud and
thereafter
from her personal FNB account.
[151]
She submits that the applicant has a duty
to quantify the proceeds of unlawful activities before it is entitled
to claim forfeiture
and therefore as it has not done so, the
applicant
has
not
made
out
a
case
for
forfeiture.
In
addition
she
submits
that
the applicant has not demonstrated that the
monies in Jocatus’ bank account prior to 2009 are the proceeds
of unlawful activities
and any payments up until that time are
therefore legitimate.
[152]
Her interest in this policy should be
excluded from the forfeiture order as the policy commenced in 2004.
In addition, as it is
a life policy, it has no cash value and the
applicant cannot sell the debt value in the policy.
Caleb
[153]
Caleb
seeks to have his FNB account 6[...] excluded from the operation of
any forfeiture order as this is his personal bank account
and the
monies consist of his salary and other lawful income due to him. It
is submitted that none of these monies are the proceeds
of unlawful
activities. In addition, he submits that Kenneth Samuel in his
founding affidavit
[62]
has
not disputed that there is legitimate income, being a salary. In
addition, he submits that such bank account is not included
in
annexure B to the forfeiture application and consequently the
applicant accepts that such bank account must be excluded.
[154]
In addition, he does not oppose the
granting of the forfeiture order in respect of the two properties
listed as items 17 and 18
of annexure B as he was not aware that the
monies utilised to purchase the properties were the proceeds of
unlawful activities.
Titus
[155]
He seeks to have item 3 in annexure B,
being section 30, Cupido Gardens, Chatsworth, excluded from any
operation of a forfeiture
order. He is the registered owner of the
property, which is a flat. He indicates that the property was
lawfully purchased with
legitimate funds. In addition, he reiterates
the grounds of opposition advanced in his section 39(3) notice. The
purchase price
paid for the property, being R475 000, consisted of
six payments made from his mother Savithree’s personal account
and this
was from legitimate sources of funds in her bank account and
not from the proceeds of the fraud from Jocatus’ bank account.
[156]
In addition, he submits that the deposits
for the period from 31 March 2011 to 1 December 2014 in the total sum
of R558 752 are
payments which he had made into his mother’s
FNB account. He indicates that his mother was amongst a group of
investors who
invested in various business opportunities to secure
profitable returns on their investments. She utilised her personal
FNB bank
account 6[...] to receive, manage and distribute some of the
investments. The amounts referred to in annexure TES1 to his mother’s
affidavit are legitimate amounts paid by investors into her bank
account. He was informed by Savithree that the monies deposited
were
invested in resources and commodities and the returns on his
investment were paid into her FNB account where after she accounted
to him together with the interest which he had earned.
[157]
He was aware of Savithree’s business
relationship with Gonaseelan as Gonaseelan was the accountant for
Jocatus. His mother
also informed him that for the period from 2013
to 2014 the investments were deposited with attorneys, Ms Motala and
Mr Gosai who
were managing an investment in a development by the
Ethekwini Municipality. The returns from this investment were also
paid into
his mother’s personal FNB account.
[158]
He submits that the monies that were
utilised to purchase the properties were proceeds of legitimate
earnings, loans and/or legitimate
investments and consequently are
not the proceeds of unlawful activities. For the period from 28
November 2013 to 9 September 2014,
a total return of R30 000 was paid
by his mother to him constituting the return of his investments. He
had agreed that his mother
would pay the purchase price for the
property rather than making these payments directly to him.
[159]
He was unaware of the fraud perpetrated by
Gonaseelan against Tiger Brands utilising Jocatus and any monies
deposited into his mother’s
personal FNB bank account did not
emanate from the fraud.
[160]
In summary, Titus submits the following:
(a)
the applicant had not shown that the
immovable property constitutes the proceeds of unlawful activities as
this is contradicted
by proof of legitimate deposits into his
mother’s personal FNB account;
(b)
the applicant has failed to prove that the
immovable property was purchased with monies received from the
proceeds of the Jocatus
fraud and there was a mixture of legitimate
money with alleged unlawful proceeds and the legitimate income in
Savithree’s
personal FNB account exceeded the amount received
from Jocatus’ bank account;
(c)
the return on his investments was utilised
by Savithree to make the payments for the purchase of the immovable
property; and
(d)
the immovable property is an indivisible
asset and it would be disproportionate and inequitable to order its
forfeiture.
Joash’s
[161]
Joash also seeks to have the immovable
property listed as items 1 and 2 in annexure B, being a flat situated
at section 35 Cupido
Gardens and a garage situated at section 232
registered in his name, excluded from the operation of the forfeiture
order. He submits
that the extract of Savithree’s personal FNB
bank account 6[...] reflects deposits from legitimate sources
unrelated to the
fraud and the proceeds of unlawful activities in
Jocatus’ bank account.
[162]
For the period from 22 January 2010 to 20
August 2014, a total sum R731 716 constitutes amounts legitimately
earned which are deposits
he made into her account. His mother,
together with Gonaseelan, were part of a group of investors who
invested in resources and
he verily believed that these investments
were legitimate and the returns of these investments were legitimate.
The amounts which
he deposited into his mother’s accounts are
not the proceeds of unlawful activities but are legitimate income
earned by him.
For the period from 5 August 2009 to 9 September 2014,
he received a return on his investments in the sum of R689 850.
Rather than
pay the money over to him, he agreed with his mother,
Savithree, to make payment of the purchase price for the property to
Maritz
Boshoff and Du Preez Attorneys on his behalf.
[163]
In respect of unit 232, although the
applicant submits that 27 percent of the property was paid for from
the proceeds of unlawful
activities,
there
is a denial and submission that these were
paid from legitimate income earned by him. The balance of the
purchase price of R55 000
is not the proceeds of unlawful activities
nor does the applicant allege same to be. Blue Dot Properties was an
agent collecting
rentals on his behalf for the leasing out of 35
Cupido Gardens and the payment of R21 800 was the proceeds of
legitimately earned
rental income.
[164]
He disputes the following allegations by
the applicant that:
(a)
Unit 35 Cupido Gardens has been paid for
from the proceeds of unlawful activities: none of the payments
totalling R475 000 from
Savithree’s personal FNB account
emanated from Jocatus’ bank account; and
(b)
Unit 232 which is the garage, was not paid
for entirely from the proceeds of unlawful activities, as only a
percentage of the purchase
price was paid for by Savithree using her
personal FNB account which allegedly received the proceeds of the
fraud from the Jocatus
account.
[165]
Consequently, he opposes the granting of
any forfeiture order on the following grounds:
(a)
The properties are not the proceeds of
unlawful activities as they were paid for by Savithree from her
personal FNB account. Savithree’s
personal bank account reveals
legitimate payments in excess of payments received from Jocatus’
bank account;
(b)
The applicant has failed to prove that the
immovable properties were purchased with monies received from the
proceeds of the fraud
and there is a mixture of legitimate monies
with unlawful proceeds. The legitimate monies exceed the amount
received from Jocatus’
bank account;
(c)
He believed that Savithree used the
legitimate proceeds of his investments to make the payments for the
purchase of the immovable
properties and the applicant has not
advanced any evidence to gainsay this; and
(d)
The immovable property is an indivisible
asset and cannot be apportioned between the applicant and him. Only
27 percent of the immovable
property
is
claimed to have been paid for from illegitimate sources and
consequently it would be disproportionate and inequitable in the
circumstances to forfeit the properties to the applicant.
The fifth and sixth
respondent
[166]
It is common cause that the fifth and sixth
respondents are married to each other in community of property and
that Mr Dhruvasan
Govender is the brother of Gonaseelan. It is also
common cause that the fifth and sixth respondents resided at a
residential property
situate at 9 Taunton Close, Somerset Park in
Umhlanga.
[167]
In opposition to the grant of any
forfeiture order, they admit that the property was purchased for them
by Gonaseelan but submit
that they did not know it was purchased with
the proceeds of unlawful activities and are innocent owners.
[168]
They committed no criminal conduct nor can
they be found to be complicit in any criminal conduct by Gonaseelan,
the fifth respondent’s
late brother. The fifth respondent
indicates that he and his wife owned their own home in Amanzimtoti,
both having worked and formerly
been employed by the Department of
Education. He had been responsible for taking care of their parents,
specifically their aged
mother. None of his siblings wanted to look
after their mother and in 2013 he was approached by Gonaseelan who
informed him that
as he had taken care of their parents, he
Gonaseelan had purchased a home for them with the proviso that the
fifth and sixth respondents
look after their mother.
[169]
At the time, the fifth respondent had the
foresight to question his brother as to how he could afford to buy
them a home. Gonaseelan
indicated that he had shares in Tiger Brands
and even showed the fifth respondent a share certificate. In
addition, he indicated
that he had been a chartered accountant for in
excess of 25 years and had funds to purchase the property. Gonaseelan
informed them
that he was also going to enter into a business venture
for a service station with one Mr Yashen Persadh.
[170]
The fifth and sixth respondents indicate
that they had no reason to doubt Gonaseelan’s
bona
fides
and when he presented the share
certificate, it seemed that he had sufficient monies available to
purchase the property. As a consequence,
they agreed and allowed him
to purchase the property for them. They were none the wiser as to
where the money came from to purchase
the property at the time.
[171]
In addition, the fifth respondent resigned
from his employment with a view of assisting his brother to run the
service station.
However, he subsequently learned that his brother
was a ‘fraudster’ and a thief. On the day that the Asset
Forfeiture
Unit attended at their home, he attempted to contact his
brother who refused to take his calls.
[172]
He was arrested for trespassing on his own
property when he tried to access the property to remove some of his
furniture. He was
evicted from his old home in Amanzimtoti as he was
in jail, and could not provide the necessary emotional support to his
wife and
two young children at the time. His brother contacted him
some three days later but did not provide an explanation as to what
transpired.
He has subsequently accepted that his brother was a
fraudster and a liar and had defrauded Tiger Brands.
[173]
In addition, he has cooperated throughout
the Asset Forfeiture Unit’s investigation and was instrumental
in providing them
with bank statements as well as other information
which has led them to trace the R50 000 000 which they have
recovered.
[174]
They admit that the investigations
uncovered that Gonaseelan facilitated the alleged fraudulent acts
committed against Tiger Brands,
that these fraudulent invoices were
processed and payment approved in favour Jocatus, and that Gonaseelan
was the accounting officer
for Jocatus from 28 September 1995 until
24 March 2014.
[175]
The fifth and sixth respondents admit that
once payment was made by Tiger Brands into Jocatus’ bank
account, direct payments
were then made to three bank accounts
belonging to Savithree, who was the sole member of Jocatus, Ms
Maligavathee Naidoo and Ms
Lingasprie Pillay. Certain monies were
also transferred into a Discovery Invest account. The fifth and sixth
respondents deny knowing
any of these individuals or meeting them.
They further admit that the proceeds from the bank accounts were also
channelled into
two accounts belonging to his brother Gonaseelan.
[176]
They were completely unaware that the
property purchased in Somerset Park was purchased with the proceeds
of unlawful activities
and only became aware of this when
the
applicant
served
the
preservation
order
on
them
on
11
October
2016. Numerous attempts to contact
Gonaseelan proved fruitless.
[177]
The fifth and sixth respondents submit that
the basis of their defence is the following:
(a)
They had documentary evidence to show that
certain officials tasked with investigating this case for the NPA are
corrupt and abused
their powers;
(b)
The senior financial investigator from the
Asset Forfeiture Unit, Ms Ramdeen was involved in this case two years
prior to it being
referred to the NPA in 2015 for investigation. Ms
Ramdeen was seen in the fifth respondent’s mother’s home
in La Lucia
visiting his sister. At the time they did not know who
she was. Ms Ramdeen has concealed monies paid by Gonaseelan to their
sister
Mrs T Rajah;
(c)
Ms Ramdeen is guilty of concealing a R25
million loan agreement concluded between Gonaseelan and Mr Persadh;
(d)
These funds were deposited into various
bank accounts belonging to inter alia Persadh’s family members
and his wife Ms Reshni
Misra, an attorney who is also a school friend
of Ms Ramdeen. The fifth and sixth respondents also allude to amounts
paid to various
family members of Mr Persadh;
(e)
Ms Kay Padayachee who is Gonaseelan’s
wife, is a school friend of Ms Ramdeen and Ms Misra and has also been
excluded from
the investigations. According to the fifth and sixth
respondents, she received R4 million of the fraudulent funds from
Gonaseelan.
In addition Ms Ramdeen has failed to specify the account
number into which Mr Vernon Naidoo transferred the R1,8 million. In a
nutshell, the fifth and sixth respondents submit that Ms Ramdeen is
disqualified and not impartial nor objective when it comes to
the
investigations conducted by the applicant in the matter;
(f)
The NPA officials had sent prospective
purchasers to their home before it obtained the preservation order.
The prospective purchasers
advised him that the property was going up
on auction;
(g)
They have been caught up in his brother’s
fraudulent scheme and are literally out on the street. They have no
income, pension
fund or medical aid and have survived on the charity
of his wife’s family;
(h)
Given their “innocence”, even
though the property may have been purchased from the proceeds of
unlawful activities,
it would constitute an arbitrary deprivation of
property in contravention of section 25 of the Constitution, should
they not be
allowed to continue to live on the property. There is no
evidence against them and consequently they are innocent owners;
(i)
They
rely on
Mohunram
[63]
that the commission of the offence in this matter was ‘relatively
far from the heartland of organised crime’. They
submit that
this was not an offence involving organised crime, and the court
ought not to arbitrarily deprive them of property.
In addition, when
applying the proportionality test, it is clear that the purpose of
forfeiture is to remove the proceeds of crime
from the offender
rather than to enrich the State. When compared with the personal
situation of the fifth and sixth respondents,
being a family of two
children with no income, no home, no pension and no medical aid,
living in an out building not fit for human
habitation because they
have nowhere else to go as they are both unemployed, forfeiture would
not be proportionate; and
(j)
In
addition, the
curator
bonis
has
placed an official from the Department of Human Settlement on the
property and no income is being received. In addition, the
home was
vandalised and the electricity reconnected in his name and a huge
arrears has arisen. Relying on
Van
Staden,
[64]
they submit that a court does have discretionary powers to refuse a
forfeiture order where the deprivation is so disproportionate
that it
renders it arbitrary.
## The applicant’s
response to the opposition and applications for exclusion
The applicant’s
response to the opposition and applications for exclusion
Savithree
[178]
The applicant points out that as at 24 May
2016, the balance in Savithree’s personal FNB account 6[...]
was R96 026.86. On
22 May 2017, the balance in the account was R13
796.26 and a hold was put on the account. The applicant indicates
that it will
not seek a forfeiture order against this account as
there is no value in that account.
[179]
The applicant denies that the majority of
funds deposited into Savithree’s FNB account were not the
proceeds of fraud. It
submits that it has proved on a balance of
probabilities that the money in such account originated from Jocatus’
bank account.
Ms Ramdeen’s analysis of such account shows that
Savithree’s personal FNB account 6[...] received the total
amount
of R37 856 251.37. This account received the proceeds of fraud
from Savithree’s second FNB account 6[...] and also received
monies from Ms Naidoo, Ms Pillay and Gonaseelan, who in turn received
payments from Jocatus’ bank account.
[180]
An analysis of Ms Naidoo’s FNB
account 6[...] reflects a number of deposits from various persons
named Tweety, Mali, Collen,
Lallie, Titus, Roxanne, J E Samuel,
Chantelle, Loyce, Therona, and Esther to name but a few. This is
evident from a schedule of
Ms Naidoo’s bank account. If one
considers Ms Naidoo’s bank account, the description part on the
payments by Ms Naidoo
to the said depositors was marked with the same
reference ‘Rita’. Savithree is also known by the name
Rita and this
is supported by annexure KMS32 which is a summons
issued by Savithree under case number 7954/2016. These same
depositors made deposits
into Savithree’s FNB account 6[...].
[181]
Accordingly, the applicant submits that the
funds are the proceeds of unlawful activities which emanated from Ms
Naidoo, who had
received the proceeds of unlawful activities from
Jocatus’ bank account into her account. These deposits which
were purportedly
made by the depositors, were made in an attempt to
create the impression that the funds in Savithree’s FNB account
6[...]
emanated from legitimate sources, whereas the original source
of the funds came from Ms Naidoo’s FNB account 6[...] which
in
turn had received the proceeds of unlawful activities from Jocatus’
bank account.
[182]
An analysis of Ms Naidoo’s account
reflects payments from Jocatus’ bank account and in turn
payments from Ms Naidoo
to depositors. The said depositors thereafter
made payments into Savithree’s account and consequently such
funds deposited
into her FNB account 6[...] are the proceeds of the
fraud committed by Jocatus. This is evident if one has regard to
annexures
KMS27 to KMS31.
[183]
In
addition, Savithree’s version that she used her FNB account to
receive deposits from alleged depositors towards investments
also
contravened section 11 of the Banks Act 94 of 1990 (Banks Act), as
she received deposits from the public without being registered
as a
bank. According to her, she received deposits from more than 20
investors or depositors amounting to more than R500 000, in
contravention of section 11 of the Banks Act. Confirmation that
Savithree is not registered as a bank in terms of the Banks Act,
nor
as a mutual bank in terms of the Mutual Banks Act 124 of 1993 (Mutual
Banks Act) is to be found in the affidavit of Ms Jane
Makele Brander,
an employee of the South African Reserve Bank.
[65]
[184]
Although the applicant admits that Titus
and Joash made deposits into Savithree’s FNB account, it is
disputed that those funds
are legitimate and in addition, the
applicant points out that they have not disclosed the source of the
funds. In any event, Titus
received payments from Ms Naidoo’s
account which held the proceeds of the Jocatus fraud in the sum of
R677 500, if one has
regard to annexure KMS34. In addition, Joash
also received payments from Ms Naidoo’s account which also held
the proceeds
of the Jocatus fraud and according to annexure KMS35,
Joash received the sum of R1 401 490. In addition, although the
applicant
admits that Savithree paid the purchase price towards the
properties owned by Titus and Joash, it submits that the payments
were
the proceeds of unlawful activities as the money emanated from
Jocatus’ bank account.
[185]
In addition, although Savithree, Joash and
Titus submit that the purchase price paid towards the unit emanated
from rental collected
by Blue Dot Properties for unit 35 Cupido
Gardens, it is evident that the purchase price for unit 35 was
received from the proceeds
of unlawful activities, and consequently
the rental amount must also be proceeds of unlawful activities. In
addition, the applicant
submits that because Savithree has not
discharged the onus to show that the funds in her personal FNB
account were legitimate,
any payments toward policies in her name are
tainted by the fraud and were paid from the proceeds of unlawful
activities.
[186]
In relation to the investments and the
policies taken out by Savithree, the applicant submits that although
the monthly instalments
were made from her personal FNB account
6[...], this personal account received payments from Jocatus’
bank account which
is indicative of the fact that the monies in her
personal account were not the proceeds of legitimate income.
[187]
In support of this, bank statements
relating to four payments made for the policy are annexed as
annexures KMS36 to KMS39. These
show the following:
(a)
On 21 January 2014, a payment of R150 000
was made into account 6[...] by Jocatus. On 28 January 2014, the same
account received
three payments from Simeon on two occasions and from
Titus for the sum of R8 000. On 31 January 2014, a premium of R10 000
was
paid towards Savithree’s Sanlam policy;
(b)
On 25 March 2014, a payment of R50 000 from
Jocatus was made into Savithree’s FNB personal account. On 31
March 2014, a premium
of R10 000 was paid to the Sanlam policy;
(c)
On 1 December 2014, a payment of R32 200
was made by Titus into Savithree’s FNB account. On the same
day, a premium of R10
000 was paid towards the Sanlam policy; and
(d)
On 31 December 2014, a payment of R30 000
was made by Titus to Savithree and on the same day a premium of R10
000 was paid towards
the Sanlam policy.
Sanlam Stratus
Endowment Policy, policy number 4[...]9
[188]
Savithree’s FNB account 6[...]
received monies from her second FNB account 6[...]. This bank account
received payment from
Ms Naidoo, Ms Pillay and Gonaseelan, who in
turn each received payments from Jocatus’ bank account. In
addition, Ms Naidoo’s
bank account received payments from
Jocatus’ bank account and then in turn Ms Naidoo effected
payment to the depositors who
in turn made payment into Savithree’s
FNB account. It would appear that the majority of the funds deposited
into Savithree’s
FNB account are the proceeds of the Jocatus
fraud.
[189]
Although the monthly instalments in respect
of the policy were paid from Savithree’s personal account, the
applicant submits
that these were the proceeds of the Jocatus fraud.
[190]
The applicant demonstrates by means of four
examples from the extracts of the bank
statements
how
the
proceeds
from
the
Jocatus
fraud
were
routed
through Savithree’s bank account.
Having regard to annexures KMS40 to KMS44, the following becomes
evident:
(a)
On 4 June 2014, a payment of R30 000 was
made by Jocatus into Savithree’s FNB personal account. A
premium of R5 000 was paid
towards the Sanlam policy on 10 June 2014;
(b)
On 8 July 2014, Ms Naidoo paid R40 000 into
Savithree’s FNB account. A premium of R5 000 was paid towards
the policy on 10
July 2014;
(c)
On 10 July 2015, a premium of R5 500 was
paid towards the Sanlam policy, subsequent to a payment of R30 000
from Jocatus on 3 July
2014 into Savithree’s FNB personal
account; and
(d)
On 7 September 2015, a payment of R188 700
was paid by Joash into Savithree’s personal FNB account. A
premium of R5 000 was
paid on 10 September 2015 towards this policy.
Sanlam Matrix Top
Cover Policy, policy number 1[...]
[191]
It is evident from the curator’s
report that this policy lapsed on 17 January 2017, and consequently
the applicant no longer
seeks a forfeiture order in respect of this
policy. Although the applicant no longer seeks its forfeiture, it
denies that the policy
was paid for using legitimate proceeds in
Savithree’s personal FNB account.
[192]
It is evident that FNB account 6[...]
received proceeds from transfers made from Savithree’s second
FNB account 6[...]. This
account in turn received payments from Ms
Naidoo, Ms Pillay and Gonaseelan whom in turn received payments form
Jocatus’ bank
account. It is accordingly submitted by the
applicant that the majority of the funds deposited into Savithree’s
account are
the proceeds of fraud, such funds originating from
Jocatus’ bank account.
Caleb
[193]
Caleb is not opposing the granting of the
forfeiture order in relation to his Sanlam Glacier investment account
4[...]0 but only
seeks to exclude his FNB bank account 6[...]. It is
evident that Caleb’s Glacier Policy was paid for using funds
from Ms
Pillay’s FNB account 6[...]. This, the applicant
submits, is an admission that Ms Pillay received proceeds from the
Jocatus
fraud.
Titus
[194]
The applicant, once again, reaffirms the
following, namely that the majority of funds used to purchase the
property and to pay for
the transfer emanated from Savithree’s
FNB account 6[...]. Payments were made into this account from
Savithree’s second
FNB account 6[...]. This account in turn
received payments from Ms Naidoo, Ms Pillay and Gonaseelan who in
turn received payments
from Jocatus’ bank account.
Consequently, the payments made were not from monies legitimately
invested with Savithree by
Titus, but were the proceeds of the
Jocatus fraud.
[195]
In addition, an examination of Ms Naidoo’s
FNB account 6[...], shows payments to Tweety, Mali, Collen, Lallie,
Titus, Roxanne,
J E Samuel, Chantelle and Ester, being the various
depositors having regard to annexures KMS27 to KMS30. The description
by Ms
Naidoo were marked with the reference ‘Rita’. Rita
is the name by which Savithree is also known. These depositors then
made deposits into Savithree’s FNB account, although the
original source of these funds was Jocatus’ bank account.
[196]
Having regard to Savithree’s FNB
personal account 6[...], six payments were made towards the purchase
of Titus’ property.
This is evident from annexures KMS45 to
KMS46. However, the flow of the funds interestingly reveals that
ultimately these are the
proceeds of unlawful activities in that:
(a)
On 4 February 2013, a payment of R1 million
was made from Savithree’s FNB account 6[...] into her FNB
account 6[...]. The
original source of these funds was Jocatus’
bank account, which funds originally emanated from payments made by
Tiger Brands.
On the same day R40 000 was paid to Maritz Boshoff and
Du Preez Attorneys;
(b)
Between the period from 12 to 16 February
2013, Tweety, Naidoo and Collen Govender made deposits into
Savithree’s FNB account
for the sum of R332 000. These
depositors had received payments from Ms Naidoo, which in turn
emanated from the Jocatus fraud.
These persons then in turn made
payments into Savithree’s FNB account 6[...]. On 21 February
2013, R100 000 was paid by Savithree
to Maritz Boshoff and Du Preez
Attorneys;
(c)
Between 25 and 26 February 2013, Tweedie
Naidoo, Phylene Naidoo and Loyce made deposits into Savithree’s
FNB account in the
total sum of R83 200. These payments were received
by them from Ms Naidoo. They then made deposits into Savithree’s
FNB account,
and on 27 February 2013, Savithree paid R50 000 to
Maritz Boshoff and Du Preez Attorneys;
(d)
On 4 March 2013, Savithree paid R40 000 to
Maritz Boshoff and Du Preez Attorneys and on the same day a payment
of R2 610 000 was
received from Jocatus’ bank account; and
(e)
On 22 March 2013, a payment of R800 000 was
received from Gosai and Company into Savithree’s FNB account.
This is payment
of the proceeds of fraud from Jocatus’ bank
account that Savithree made into the attorneys’ account towards
an investment.
On 23 March 2013, Savithree paid R240 000 to Maritz
Boshoff and Du Preez Attorneys towards the purchase price of the
flat. In addition,
Titus was one of the depositors who received
payments from Ms Naidoo as is evident from annexure KMS34. According
to this schedule,
Titus and his wife, Roxanne, received R 710 000 in
total from Ms Naidoo.
[197]
Dealing with the alleged payments which
were made to two attorneys, Ms Motala and Mr Gosai, the applicant
submits that these were
payments from funds that had their origin
from Jocatus’ bank account, and not from investors. Funds from
Ms Naidoo, Ms Pillay
and Gonaseelan, who in turn received payments
from Jocatus’ bank account were paid into Savithree’s
second FNB account
6[...]. Transfers were then made from this bank
account to Savithree’s first FNB personal account 6[...]. Ms
Naidoo, who
had received payments from Jocatus’ bank account,
made payment to various depositors who in turn thereafter made
payments
to Savithree’s FNB bank account. It is for these
reasons that the applicant submits that most of the payments that
were deposited
by Savithree into either Gosai and Company’s
trust account or Rabia Motala’s trust account were the proceeds
of fraud,
emanating from Jocatus’ bank account.
[198]
By way of example, the applicant annexes as
annexures KMS48 to KMS54, extracts from Savithree’s FNB
personal account depicting
payments to the attorneys and the source
of funds. These payments were made on 3 January 2013 in the amount of
R2 million; 8 January
2013 in the amount of R1 015 000; 14 January
2013 in the amount of R400 000; 4 March 2013 in the amount of R2 600
000; 10 April
2013 in the amount of R2,5 million; 3 May 2013 in the
amount of R1 million; 6 June 2013 in the amount of R1 150 000; and 8
May
2013 in the amount of R1 800 000.
[199]
If one then correlates this with
Savithree’s bank accounts, the following becomes evident:
(a)
On 3 January 2013, Savithree’s
personal bank account received a payment of R90 000 from Jocatus and
R1 910 000 from her second
bank account 6[...]. On the same day, she
made payment of R2 million into Rabia Motala’s bank account;
(b)
On 7 January 2013, Joash, Collen and Loyce
made payments in the amount of R280 000 into Savithree’s FNB
account 6[...]. R760
000 was paid on 8 January 2013 by Phylene and
from Savithree’s second bank account 6[...]. On the same day,
Savithree paid
R1 015 000 into Rabia Motala’s bank account;
(c)
On 14 January 2013, a payment of R837 000
was made from Savithree’s second bank account 6[...] into her
FNB personal bank
account 6[...]. On the same day, she paid R400 000
into Gosai and Company’s trust account;
(d)
On 4 March 2013, R2 610 000 was paid by
Jocatus into Savithree’s FNB account 6[...] and R33 000 was
paid from her second bank
account 3[...]. On the same day, R2,6
million was paid by her into Gosai and Company’s trust account;
(e)
On 10 April 2013, Savithree’s
personal FNB account received a payment of R2 500 000 from her second
bank account 6[...]. On
the same day, she made a payment of R2,5
million into Gosai and Company’s trust account;
(f)
On 3 May 2013, a payment of R1 million was
received from Jocatus into her personal bank account, and on the same
day she paid R1
million into Gosai and Company’s trust account;
(g)
On 5 June 2013, Savithree’s personal
bank account received payments from N Govender, Collen Govender and
Tweedie in the total
sum R683 000. Two further payments were received
on 6 June 2013 from Tweedie Naidoo and Savithree’s second bank
account 6[...]
in the total sum of R458 000. On the same day,
Savithree paid R1 150 000 into Gosai and Company’s trust
account; and
(h)
Savithree was one of the 24 plaintiffs who
issued summons under case number 7954/2016
against
Gosai
and
Company
and
Rabia
Motala,
claiming
payment
of
R21 806 050 which is the balance of the total sum of R24 756 050
which had allegedly been invested with the attorneys. This is
reflected in annexure KMS32.
[200]
The applicant submits that Titus has not
discharged the onus to show that the monies paid were derived from
legitimate sources of
income. Furthermore, the proceeds of
Savithree’s personal FNB account that were invested with Gosai
and Company were the
proceeds of unlawful activities which emanated
from Jocatus, Gonaseelan and from Savithreee’s second bank
account 6[...].
These are not legitimate sources of income. In
addition, Ms Ramdeen has confirmed that an analysis of Titus’
bank account
reflects that Ms Naidoo paid R677 500 to Titus and his
wife from the bank account which had held the proceeds of the Jocatus
fraud.
[201]
The applicant, in dealing with the payments
made by Savithree to Titus, indicates that these payments are not the
returns from investments
as pleaded, but are the proceeds of the
unlawful activities. In doing so, it refers to annexures KMS55 to
KMS57 which reflect the
following:
(a)
On 28 November 2013, Roxanne Samuel, Titus’
wife paid R175 000 into Savithree’s FNB personal bank account.
In addition,
having regard to KMS57A, Roxanne is also one of the
depositors who had received payments from Ms Naidoo’s bank
account. On
28 November 2013, Titus made a payment of R10 000 into
Savithree’s
personal
bank
account
and
on
the
same
day,
Savithree
paid
Titus
R10 000;
(b)
On 5 March 2014, Joash and Gonaseelan made
payments of R103 000 into Savithree’s personal FNB account.
They also formed part
of the group of depositors who received
payments from Ms Naidoo’s bank account. On 6 March 2014,
Savithree paid Titus R10
000; and
(c)
On 2 September 2014, two payments totalling
R30 000, reflecting as salary, were made into Savithree’s
personal FNB account.
These payments were received by her from
Jocatus’ bank account and on 9 September 2014, she paid Titus.
[202]
Although Titus submits that he is an
innocent owner of the property as his mother had made payments for
the purchase of the property
which were the proceeds of his
investments and legitimately due to him, the applicant submits that
this is not so. The applicant
submits that Titus, together with
Savithree, were aware of the fraud perpetrated
by
Gonaseelan
against
Tiger
Brands
using
Jocatus
and
the
monies
deposited into Savithree’s account emanated from such fraud.
[203]
The investigations show that Titus received
five payments directly from Jocatus over the period from 27 July 2014
to 27 May 2015,
in the total sum of R105 600. This is evident from
annexure KMS58 which also shows a first payment of R600 made into
Titus’
account 6[...] and the remainder of the payments made
into Titus’ other bank account 6[...]. In addition, further
payments
were received from Ms Naidoo’s bank account which held
the proceeds of the unlawful activities from Jocatus’ bank
account.
Consequently, the applicant submits that Titus, together
with Savithree, were involved in money laundering by disguising or
concealing
the nature or source of the funds, which emanated from the
Jocatus fraud, to appear as legitimate funds. In addition, it submits
that the property was wholly obtained from the proceeds of unlawful
activities, as it was paid from Savithree’s personal
bank
account.
[204]
In addition, Titus has not shown that the
deposits made into the accounts are legitimate and that they do not
form part of the proceeds
of the unlawful activities received from
Jocatus. If one has regard to the deposits paid into Savithree’s
personal FNB account,
Savithree made six payments for the purchase of
the property and not one of these is received from Titus to show that
these were
the legitimate proceeds of his investments which he paid
over for the purchase of the immovable property.
Joash
[205]
Although Joash denies that the property
constitutes the proceeds of unlawful activities, the applicant
submits that it has shown
that it was wholly acquired from the
proceeds of unlawful activities in his hands, as it was paid for in
full from funds in Savithree’s
personal FNB account. It is
evident from deposits made by Ms Naidoo that the money in Ms Naidoo’s
bank account emanated from
the fraud perpetrated by Jocatus. Money in
Ms Naidoo’s bank account then made its way into Savithree’s
FNB personal
bank account, as is evident from annexures KMS27 to
KMS30. In addition, Joash has not filed any statements from any of
the alleged
depositors to corroborate his version that the deposits
made originated from untainted funds.
[206]
The nine payments made from Savithree’s
personal bank account to acquire Joash’s property depict the
following:
(a)
On 21 February 2012, a payment of R13 000
was made from Savithree’s second bank account 6[...] into her
FNB personal account
6[...]. On the same day, a payment of R5 000
towards the purchase price was made to Maritz Boshoff and Du Preez
Attorneys;
(b)
A payment of R44 000 was made on 4 April
2012 from Savithree’s second FNB account into her personal bank
account and on the
same day, a payment of R5 000 was made to Maritz
Boshoff and Du Preez Attorneys;
(c)
Tweedie Naidoo made a payment of R40 000 on
28 March 2013 into Savithree’s FNB account 6[...]. This is one
of the depositors
who had received payments from Ms Naidoo’s
bank account. On the same day, R40 000 was paid by Savithree to
Maritz Boshoff
and Du Preez Attorneys;
(d)
On 4 June 2013, a payment of R50 000 was
received from Jocatus’ bank account into Savithree’s
personal FNB account.
On the same day, the same amount was
transferred to Maritz Boshoff and Du Preez Attorney;
(e)
R100 000 was received from Ms Naidoo’s
account 6[...] into Savithree’s FNB personal account on 19 July
2013 and on the
same day, the same amount was paid to Maritz Boshoff
and Du Preez Attorneys;
(f)
R100 000 was once again received from Ms
Naidoo’s account and paid into Savithree’s personal FNB
account on 20 August
2013 and on the same day, the same amount was
transferred to Maritz Boshoff and Du Preez Attorneys;
(g)
On 4 September 2013, R100 000 was received
from Jocatus’ bank account and transferred into Savithree’s
personal bank
account. This amount was on the same day paid to Maritz
Boshoff and Du Preez Attorneys;
(h)
A payment of R221 256.92 was received from
a Sanlam policy into Savithree’s personal bank account on 18
September 2013. On
20 September 2013, a further payment of R74 404.77
from this source was also received into her personal bank account.
Titus made
two payments of R42 000 into Savithree’s FNB account
on 27 September 2013; and
(i)
On 2 October 2013, Savithree paid R25 000
to Maritz Boshoff and Du Preez Attorneys towards the purchase price
of the flat. On the
same day, the bank statement shows Savithree
making various payments to other depositors.
[207]
It is for these reasons that the applicant
submits that Joash has not disclosed the source of his funds nor has
he shown that these
were legitimate funds earned and that the
deposits into Savithree’s account were not legitimate sources
of income. Joash
is also one of the depositors who received payments
from Ms Naidoo’s bank account which in turn unlawfully received
the proceeds
from the Jocatus fraud. Annexure KMS35 is a schedule of
payments made from Ms Naidoo’s account into Joash’s
account
which total R1 401 490. Fifteen payments were received by
Joash from Jocatus’ bank account for the period from 31 July
2009
to 16 July 2015, as depicted in annexure KMS67, and are
therefore the proceeds of fraud which first appeared in Jocatus’
bank account.
[208]
The payments which were made by Savithree
into Rabia Motala and Gosai and Company’s trust account had
their origin in Jocatus’
bank account, which contained the
proceeds of the unlawful activities. In light of Joash’s lack
of explanation as to where
these funds were derived from, the
payments made by Savithree to the attorneys, which constituted the
purchase price of the immovable
property, are the proceeds of
unlawful activities. In addition, the payment of the balance of the
purchase price which Joash submits
were derived from the proceeds of
legitimate rental income by Blue Dot Properties, are also the
proceeds of crime, in that as the
property was paid for by
illegitimate sources of income, any rental derived from the purchase
of the property is also the proceeds
of unlawful activity.
The fifth and sixth
respondents
[209]
The applicant denies that the fifth
respondent had no knowledge that the property was purchased with the
proceeds of unlawful activities
and submits that same cannot be
excluded from the operation of the forfeiture order. In addition, the
applicant indicates that
it has no knowledge of whether the fifth
respondent knew or met Savithree, Ms Naidoo and Ms Pillay. It submits
that despite the
fifth and sixth respondents denying knowing Ms
Naidoo, there exists a payment by her on 2 September 2013 of R2 050
000 to Ponnen
Pienaar and Associates towards the purchase of the
Taunton Road property.
[210]
In addition, the applicant denies that any
of its officials are involved in corruption and invites the fifth and
sixth respondents
to lay criminal charges of corruption against them,
which criminal charges and allegations can be thoroughly
investigated. In addition,
Ms Ramdeen in reply indicates that she was
not involved in the matter two years prior to its registration and
indicates the matter
was only registered with their office in August
of 2015 when she became aware of the investigation by Ernst and Young
and Tiger
Brands. She does not know the fifth or the sixth
respondents nor has she ever met the fifth respondent’s mother
or sister
and denies having visited them at their residence.
[211]
Ms Misra attended the same high school as
her and was much younger than her but she has had no contact with
her. In addition, she
has no knowledge of a loan agreement concluded
between Gonaseelan and Mr Persadh and denies knowing Mr Persadh’s
wife and
Ms Kay Padayachee. The applicant denies the remainder of the
allegations contained in the fifth and sixth respondents’
affidavits
and submits that they had reasonable grounds to suspect or
knew that the immovable property was purchased with the proceeds of
unlawful activities and consequently same ought to be forfeited.
Mr Vernon Naidoo
[212]
Amongst
the property which the applicant seeks a forfeiture order in respect
of, are the proceeds in an Investec Bank account 1[...].
It is common
cause that the bank account is operated by Mr Vernon Naidoo. When Mr
Vernon Naidoo was served with the application
papers and the
preservation order, he filed an affidavit deposed to on 27 January
2017 in which he indicated that he did not intend
opposing the
granting of a forfeiture order and ‘consent[s] to the funds
preserved in the aforesaid bank account to be dealt
with in
accordance with any Order granted by the above Honourable Court in
regard thereto’.
[66]
# Analysis
Analysis
## Onus
Onus
[213]
It appears to be common cause that the
parties accept that the applicant obtained the preservation order and
now seeks to obtain
a forfeiture order on the basis that the property
listed in annexure B constitutes the proceeds of unlawful activities,
namely
fraud. Whether or not the applicant is entitled to a
forfeiture order depends on whether the evidence adduced by the
applicant
in support of its case establishes on a balance of
probabilities that the property concerned represents the proceeds of
unlawful
activities.
[214]
The first question to be answered is
whether the applicant has succeeded in establishing that the monies
in Jocatus’ bank
account are the proceeds of unlawful
activities.
[215]
Proceeds of unlawful activities is defined
in section 1 of POCA as
‘
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.’
[216]
In
deciding how to deal with the aforementioned definition,
National
Director of Public Prosecutions v Komane and others,
[67]
paraphrasing
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
[68]
held
that:
‘
first
.
. . that the definition should be approached on the basis that,
subject to necessary attenuation
of
the linguistic scope of “in
connection
with”,
it
should be given
its
full
ambit;
and
second
.
. . that bearing in mind that the objective of the Act is to render
forfeit the returns that might accrue from unlawful activity,
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.’
[69]
[217]
In
RO
Cook Properties
[70]
the
court held that the definition of proceeds of unlawful activities
requires the property in respect of which a forfeiture order
is
sought to have been ‘“derived, received or retained”
“in connection with or as a result of” unlawful
activities’.
[218]
This
is so because section 50 of POCA casts the onus on the applicant to
prove on a balance of probabilities that it is entitled
to a
forfeiture order. This is consistent with the interpretation of
section 50 by our courts.
[71]
[219]
In
Mohunram
and another v National Director of Public Prosecutions and another
(Law Review Project as amicus curiae)
[72]
Moseneke
DCJ
dealt
with the onus. He held that:
‘
the
NDPP bears the
onus
to
establish on a balance of probabilities that the forfeiture sought is
justified. Naturally, the respondent in forfeiture proceedings
will
have to adduce evidence if she or he hopes to disturb or rebut the
facts that the NDPP relies upon in the founding depositions.’
[73]
[220]
What one must also bear in mind is the
difference between onus of proof and evidentiary burden. This was
succinctly dealt with by
Corbett JA in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
as follows:
‘
As
was pointed out by DAVIS, A.J.A., in
Pillay
v Krishna and Another
,
1946 AD 946
at pp. 952 - 3, the word
onus
has
often been used to denote,
inter
alia
,
two distinct concepts: (i) the duty which is cast on the particular
litigant, in order to be successful, of finally satisfying
the Court
that he is entitled to succeed on his claim or defence, as the case
may be; and (ii) the duty cast upon a litigant to
adduce evidence in
order to combat a
prima
facie
case
made by his opponent. Only the first of these concepts represents
onus
in
its true and original sense. In
Brand
v Minister of Justice and Another
,
1959 (4) SA 712
(AD) at p. 715, OGILVIE THOMPSON, J.A., called it
"the
overall
onus
".
In this sense the
onus
can
never shift from the party upon whom it originally rested. The second
concept may be termed, in order to avoid confusion, the
burden of
adducing evidence in rebuttal ("weerleggingslas"). This may
shift or be transferred in the course of the case,
depending upon the
measure of proof furnished by the one party or the other.’
[74]
[221]
As far back as 1913, Innes J in
Union
Government (Minister of Railways) v Sykes
remarked
as follows:
‘
The
important point is that less evidence will suffice to establish a
prima
facie
case
where the matter is peculiarly within the knowledge of the opposite
party than would under other circumstances be required.’
[75]
[222]
The
authors in
Law
of Evidence
[76]
explain
it in the following manner:
‘
The
availability of evidential material, the opportunities to obtain it,
or (to use the established expression) the fact that one
of the
parties has peculiar knowledge of a fact, does not alter the
standards for assessing evidential material nor, normally,
do they
alter the onus of proof. The party having exclusive evidence or
peculiar knowledge of a fact is therefore not required
to prove the
fact if, according to the usual criteria, the burden rests on his
opponent. Peculiar knowledge is, nevertheless, a
factor to be
considered when the court has to decide whether evidence reaches the
required standard.’ (Footnote omitted.)
[223]
In support of the submission that the
applicant has not discharged the onus,
Mr
Howse SC
submits that as Ms Ramdeen has
not put up an affidavit in the forfeiture application relating to the
first to fourth respondents,
the onus has not been discharged. This
submission is misplaced. The applicant in its founding papers in the
forfeiture application
indicates that it relies on the affidavits
submitted in the preservation application and specifically asked that
they be incorporated.
In dealing with the opposition to the
forfeiture application and the section 39(3) application for the
exclusion of interest, the
applicant relies on the affidavits and the
annexures to the preservation application. In my view, it is not
necessary for the applicant
to pertinently regurgitate the contents
of Ms Ramdeen’s affidavit in the forfeiture application to
discharge the onus.
[224]
Although the applicant does not refer to
onus in its founding affidavit, it is clear that it is aware thereof
given the heads of
arguments filed but also having regard to the
authorities. In any event, I have considered the onus and evidentiary
burden which
both parties face in the current application in reaching
my conclusions.
[225]
A further submission was made that the
applicant has attempted to make out a case in reply. The applicant,
in its forfeiture application,
relied on the preservation application
and the affidavits annexed thereto. It subsequently in reply dealt
with certain of the allegations
and objections raised by the
respondents both in their section 39(3) affidavit as well as the
affidavits filed in opposition to
the forfeiture application and for
the exclusion of their interests. It must follow that I do not accept
the submission that a
case was made out in reply-all the applicant
did was deal with the opposition advanced for the first time in the
forfeiture application,
logically it could not have done so in the
preservation application as it was not at that stage aware of the
nature of the opposition.
## The approach to be
adopted by a court considering final relief in forfeiture proceedings
The approach to be
adopted by a court considering final relief in forfeiture proceedings
##
[226]
Any
factual dispute arising on the papers should be resolved in terms of
the
Plascon-Evans
rule.
[77]
The
principles established in
Plascon-Evans
for
the resolution of factual disputes was further clarified and
amplified by the Supreme Court of Appeal in
National
Director of Public Prosecutions v Zuma
as
follows:
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts averred
in
the applicant's (Mr Zuma's) affidavits, which have been admitted by
the respondent (the NDPP), together
with
the
facts
alleged
by
the
latter,
justify
such
order.
It
may
be
different
if
the respondent's version consists of bald or uncreditworthy denials,
raises fictitious disputes of fact, is palpably implausible,
far-fetched or so clearly untenable that the court is justified in
rejecting them merely on the papers. The court below did not
have
regard to these propositions and instead decided the case on
probabilities without rejecting the NDPP's version.’
[78]
(Footnote omitted.)
[227]
Whether or not a denial by a respondent of
a fact alleged by an applicant is sufficient to raise a real, genuine
or
bona fide
dispute of fact, was dealt with by the
Supreme Court of Appeal in
Wightman t/a
JW Construction v Headfour (Pty) Ltd and another
as
follows:
‘
A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course be instances
where a bare
denial meets the requirement because there is no other way open to
the disputing party and nothing more can therefore
be expected of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the averring party
and no basis is
laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing
party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true
or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial the court
will generally have difficulty in
finding that the test is satisfied.
I say “generally” because factual averments seldom stand
apart from a broader matrix
of circumstances all of which needs to be
borne in mind when arriving at a decision. A litigant may not
necessarily recognise or
understand the nuances of a bare or general
denial as against a real attempt to grapple with all relevant factual
allegations made
by the other party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may
be, and
will only in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a legal
adviser
who settles an answering affidavit to ascertain and engage
with facts which his client disputes and to reflect such disputes
fully
and accurately in the answering affidavit. If that does not
happen it should come as no surprise that the court takes a robust
view of the matter.’
[79]
[228]
Although the first to fourth respondents
attempt to suggest that there are disputes of fact on the papers in
light of their opposition,
specifically in relation to the source of
monies, I do not agree that these are genuine and bona fide disputes
of fact envisaged
in
Wightman and Zuma
referred to hereinbefore. In this
particular matter, the first to fourth respondents have contented
themselves with a mere denial
and have attempted to shift the onus to
the applicant.
[229]
In circumstances where the respondents were
faced with a
prima facie
case
that the property is the proceeds of unlawful activities, it not does
not assist the respondents
to
ask
that
the
applicant
investigate
the
monies
and
properties
to
establish that they are in actual fact the proceeds of unlawful
activities. Matters peculiarly within the knowledge of the
respondents
require them to place all the information before the
court. This is especially so in relation to the first respondent and
the monies
allegedly paid by investors. In addition in opposition
Savithree has indicated that she would supplement her papers to deal
with
the exclusion of certain interests. She did not do so.
## The forfeiture
application
The forfeiture
application
[230]
It is against this backdrop that the issues
in this application fall for determination. Part of the answer to
deciding this issue
involves one having regard to the purpose of
POCA, the reasons for its enactment and what it attempts to achieve.
[231]
POCA’s purpose was carefully
considered by a unanimous judgment of the Constitutional Court in
National Director of Public Prosecutions
and another v Mohamed NO and others
as
follows:
‘
[14]
The Act's overall purpose can be gathered
from its long title and preamble and summarised as follows: The 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.
[15]
It
is common cause that conventional criminal penalties are inadequate
as measures of deterrence when organised crime leaders are
able to
retain the considerable gains derived from organised crime, even on
those occasions when they are brought to justice. The
above problems
make a severe impact on the young South African democracy, where
resources are strained to meet urgent and extensive
human needs.
Various international instruments deal with the problem of
international crime in this regard and it is now widely
accepted in
the international community that criminals should be stripped of the
proceeds of their crimes, the purpose
being
to
remove
the
incentive
for
crime,
not
to
punish
them.
This
approach
has
similarly been adopted by our Legislature.’
[80]
[232]
In order to succeed in the present
application, the applicant has to prove on a balance of probabilities
that the property concerned
is ‘the proceeds of unlawful
activities’ as contemplated by section 50(1)
(b)
of POCA.
[233]
The applicant submits that it has
established on a balance of probability that the property is the
proceeds of unlawful activity,
namely fraud. The property was derived
from funds which were deposited into Jocatus’ bank account by
Tiger Brands based on
a fraudulent misrepresentation that Jocatus had
rendered services to Tiger Brand and was thus entitled to these
funds.
[234]
The applicant submits further that neither
of the respondents, save for the second respondent who has abandoned
his opposition,
have adduced sufficient proof to rebut its
allegations and to have their interest in the property excluded. The
first respondent
also admits that the funds paid to Jocatus from
Tiger Brands are the proceeds of unlawful activities.
[235]
In addition, it submits that the third to
sixth respondents have not proved their legally acquired interests
and/or innocent owner
defences on a balance of probability. The first
and third to sixth respondents admit that the funds paid by Tiger
Brands to Jocatus
were the proceeds of unlawful activities. There is
also a concession that certain of the immovable properties acquired
were acquired
with proceeds of unlawful activities and with
legitimate funds.
[236]
The offences and unlawful activities on
which the applicant relies are fraud. It is common cause that fraud
falls within the ambit
of Schedule 1 to POCA. In determining whether
the offences/unlawful activities have been proved on a balance of
probabilities,
one must bear in mind that the respondents, with the
exception of the fifth and sixth respondents, deny that the monies
are the
proceeds of unlawful activities. The first respondent seems
to concede that a certain portion of the monies are from illegitimate
sources, albeit that she also alleges that she had legitimate sources
in her bank account.
[237]
This in turn involves a question as to
whether or not one applies a wide or narrow definition of ‘proceeds
of unlawful activities’.
Given the defence raised, the question
is whether or not the property concerned can be forfeited as it was
‘derived or received’
in part before any unlawful
activity had taken place.
[238]
In
NDPP
v Carolus
,
[81]
which was confirmed on appeal by the Supreme Court of Appeal,
[82]
Blignault
J held the following with regard to the definition of proceeds of
unlawful activities in the context of section 38(2)
(b)
of
POCA
‘
In
order to be able to rely on subpara
(b)
,
that is the “proceeds of unlawful activities”, it is
clear that the applicant must establish a connection or link
between
the alleged unlawful activity and the property concerned. In terms of
the definition there must be evidence that the property
was derived,
received or retained, directly or indirectly, in connection with or
as a result of the unlawful activity carried out
by any person.’
[83]
[239]
If
the applicant has failed to establish a connection or link between
the alleged unlawful activity and the property concerned,
then it
raises the further question as to whether it can be found that the
property was ‘retained as a result of any unlawful
activity’.
In relation to the purpose and nature of preservation orders in
chapter 6 of POCA, the primary focus is on property
that has been
used to commit an offence or which constitutes the proceeds of crime
rather than the offenders themselves. Consequently
‘the guilt
or wrongdoing of the owners or possessors of property is, therefore,
not primarily relevant to the proceedings’.
[84]
[240]
By
the same token, our courts have held that POCA ‘requires
property owners to exercise responsibility for their property
and to
account for their stewardship of it in relation to its possible
criminal utilisation’.
[85]
However,
a constitutionally permissible relationship
‘
between
the
purpose
of
the
forfeiture and the
property
to
be
forfeited must
be
close, that the purpose of the forfeiture must be compelling and that
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.’
[86]
[241]
In
this matter the applicant seeks the forfeiture on investments made by
Savithree on the basis that these are proceeds of crime.
Seevnarayan
[87]
concerned
investments totalling R4 115 738.58 that a taxpayer had made under
false names with Sanlam. The purpose thereof was to
conceal the money
and the proceeds to evade income tax. The fraudulent scheme was
uncovered when the taxpayer tried, with the assistance
of his
attorney, to withdraw the investments from Sanlam and Sanlam demanded
proof of identity. The NDPP sought a forfeiture of
the investments
and the interest earned either as instrumentalities of offences
alternatively the proceeds of unlawful activities.
[242]
Griesel J dismissed the application as he
found that the money was not the means by which the fraud and tax
evasion was committed
and that the NDPP had not shown that the
capital amount or the interest earned were ‘proceeds of
unlawful activities’.
The NDPP took the matter on appeal to the
Supreme Court of Appeal. The Supreme Court of Appeal did not agree
with the court
a quo’s
reasoning
and stated the following in paragraph 58 ..”In our view, this
states the issue too narrowly. As we showed earlier,
the Act’s
definition of
‘instrumentality’
goes deliberately wider than the ‘means’ by which an
offence is committed. It embraces
property ‘concerned in’
the offence. The question is thus not whether the fraud was committed
‘by means of’
the investments, but whether the money
invested was ‘concerned in the commission’ of the fraud
on either Sanlam or
the revenue services within the intendment of the
statute’
[243]
In considering whether the property was the
proceeds of unlawful activities, the SCA considered the definition as
follows
‘
The
definition in essence requires that the property in question be
“derived, received or retained” “in connection
with
or as a result of” unlawful activities. Griesel J considered
that a literal application of the definition would lead
to absurd and
grossly inequitable results, and that a restrictive interpretation
was therefore imperative.’
[88]
The Supreme Court of
Appeal found that in coming to this conclusion, Griesel J had relied
on the short title of POCA and applied
a restrictive approach.
[244]
It did not agree with the approach adopted
by Griesel J and opined that POCA applied to cases of individual
wrong-doing. It held
the following
‘
We
cannot agree with this construction, which radically truncates the
scope of the Act. It leaves out portions of the long title,
as well
as the ninth paragraph of the preamble. These show that the statute
is designed to reach far beyond “organised crime,
money
laundering and criminal gang activities”. The Act clearly
applies to cases of individual wrong-doing.’
[89]
[245]
It further held the following
‘
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.’
[90]
[246]
The
court concluded that the definition should be given its full ambit
‘subject to necessary attenuation of the linguistic
scope of
“in connection with”’.
[91]
[247]
The
issue was whether the capital and interest constituted the proceeds
of unlawful activities. On appeal, the NDPP in
RO
Cook Properties
made
two submissions in relation to the capital, namely firstly, that
based on inferences it asked the
court
to
draw,
the
whole
sum
invested
represented
the
proceeds
of
unlawful
activities and secondly, that ‘the entire amount was “retained”
in connection with or as a result of
unlawful activities’.
[92]
In
relation to the first submission, the Supreme Court of Appeal
declined to draw the inference that the funds were derived from
unlawful activities. As regarded the alternative argument, the court
also rejected this on the basis that it would entail ‘that
the
sum invested somehow changed its character in the course of the
scheme so as to taint it with the fraud’.
[93]
The
Supreme Court of Appeal similarly rejected this argument as the fraud
was committed by Mr Seevnarayan investing under false
names.
[94]
[248]
In relation to the interest earned on the
investments, the NDPP in
RO Cook
Properties
submitted that such interest
represented the proceeds of unlawful activities. The Supreme Court of
Appeal held that the question
to be answered was whether ‘the
interest was earned “in connection with or as a result”
of his unlawful activity
in making false representations to Sanlam
and to the revenue service’. The Supreme Court of Appeal took
the view
‘
that
Seevnarayan did not derive, receive or retain the interest “as
a result of” his unlawful conduct in making false
representations to Sanlam and to the revenue service. The interest
was the direct result of his investment, and not his false
statements.’
[95]
[249]
In
determining whether Mr Seevnarayan derived, received or retained the
interest in connection with his unlawful activity, the Supreme
Court
of Appeal likewise did not agree that he did. It opined that even if
the words “in connection with” were intended
to broaden
the scope of the definition, the accrual of property must flow in
some way directly or indirectly from the unlawful
activity.
[96]
This
would be consistent with the objective of POCA to forfeit the returns
accrued from unlawful activity and in keeping with the
definition
that ‘the proceeds must in some way be the consequence of
unlawful activity’.
[97]
[250]
Even in applying a broad interpretation to
the definition, the Supreme Court of Appeal took the view that there
was no connection
between the interest earned and any of the offences
which Mr Seevnarayan had committed. The interest did not accrue to
him as a
consequence of his conduct in providing false information to
Sanlam but from his conduct in making the investments. The interest
accrued to him was not an accrual that flowed from the commission of
the offence.
## The evidence
The evidence
[251]
The applicant relied on the evidence
contained in the affidavits of Mr Kenneth Mark Samuel and
specifically that of Ms Ramdeen and
the annexures to the affidavits.
Firstly, it is evident from the internal investigations conducted by
Tiger Brands that there was
never an enterprise development agreement
with Jocatus in terms of which it rendered logistics services. We
also know that a fraud
was perpetrated on Tiger Brands by Gonaseelan
who manufactured invoices and handed these to Ms Mewalall to process.
[252]
We know that Tiger Brands made payment to
Jocatus in the total amount of R121 679 095.70. Savithree was the
sole member of Jocatus
and has conceded that the monies paid into
Jocatus’ bank account by Tiger Brands were the proceeds of the
fraud perpetrated
on Tiger Brands by inter alia Gonaseelan. The fraud
was perpetrated by way of fraudulent invoices submitted by
Gonaseelan. Ms Ramdeen
who conducted the investigation, demonstrated
that subsequent to the payments by Tiger Brands to Jocatus, funds
were disbursed
to other bank accounts belonging to Savithree, and
other individuals and entities, including among others Mr Vernon
Naidoo, Ms
Naidoo, Ms Pillay, Sanlam and Discovery Invest. The
investigation of various bank accounts, entities
as
well
as
individuals
revealed
that
Jocatus
made
payments
of
R119
729
812.90 to the following individuals:
(a)
Savithree’s
FNB
Premier
Cheque
account
6[...]
in
the
sum
of R4 908 600;
(b)
Savithree’s FNB Money Market Investor
account 6[...] in the sum of R6 909 000;
(c)
Ms Naidoo’s FNB Money Market Investor
account 6[...] in the sum of R70 581 369.90;
(d)
Ms
Naidoo’s
FNB
Gold
Cheque
account
6[...]
in
the
sum
of
R6
220 000;
(e)
Ms Pillay's FNB account 6[...] in the sum
of R28 610 843; and
(f)
Savithree’s Discovery Invest policy
in the sum of R2 500 000.
[253]
In addition, Ms Ramdeen’s analysis
and investigations revealed that the proceeds of the funds in
Jocatus’ bank account
were also channelled and paid to the
following persons:
(a)
Gonaseelan received R64 106 507.39 from
Savithree, Ms Naidoo, Ms Pillay and Caleb;
(b)
Caleb received R70 500 000, which was paid
into his Sanlam Policies by Ms Pillay and Savithree. There were also
indirect payments
from Jocatus’ bank account, as Savithree and
Ms Pillay had received the money from Jocatus earlier on;
(c)
Mr Vernon Naidoo received R15 000 000 from
Gonaseelan that was channelled through Gonaseelan’s bank
accounts to Mr Vernon
Naidoo’s Investec account;
(d)
Both Titus and Joash received the proceeds
of unlawful activities, being the three sectional title properties in
Cupido Gardens,
Chatsworth, as these were paid for by Savithree with
the proceeds of the funds from Jocatus’ bank account; and
(e)
Mr Dhruvasen and Ms Sally Govender received
an immovable property which was purchased from the proceeds of the
unlawful activities
being the monies in Jocatus’ bank account
that was paid for by Ms Naidoo.
[254]
The internal investigations done by Tiger
Brands revealed that there was no valid enterprise development
agreement, and in fact,
there was no indication that Jocatus was
running a logistics transportation or logistics company. Ms Mewalall
confirmed that the
fraudulent purchase orders were generated and
processed in favour of Jocatus through the Tiger Brands computer
system, after these
invoices were handed over to her by Gonaseelan.
She confirmed that she had processed these on the instruction of
Gonaseelan. In
addition, Gonaseelan contrived a plan with regard to
the coding of these invoices, and instructed Ms Mewalall to debit
them to
different financial accounts to avoid detection. Various
employees of Tiger Brands confirmed that they were not familiar with
Jocatus
nor were any logistics services provided by it. It
is
irrefutable
that
as
a
consequence
of
Gonaseelan’s
fraudulent
conduct,
Tiger
Brands
was
induced
into
making
payment
to
Jocatus
into
its
FNB
account
in
the
amount of R121 679 095.70.
[255]
Before
dealing with each of the individual respondents, I propose to deal
briefly with the affidavit filed by Mr Vernon Naidoo
[98]
in
respect of the Investec account 1[...]. Mr Vernon Naidoo in such
affidavit indicates that he consents to the funds which have
been
preserved in the Investec account being dealt with in any manner
which this court deems fit. Given the nature of his involvement
and
the transfer of funds from his Investec account to Gonaseelan, it is
clear that the monies which made their way into his Investec
account
are the proceeds of crime and consequently fall to be forfeited in
the absence of any opposition.
[256]
Turning now to each of the individual
respondents and their request for the exclusion of their interests.
Caleb
[257]
Although he initially filed an affidavit in
terms of section 39(3) seeking to have his interest in the property
and bank accounts
excluded from the operation of the forfeiture
order, it is evident that he no longer opposes the granting of the
forfeiture order,
specifically in relation to the immovable property
situated at Cupido Gardens. In addition, the applicant no longer
seeks the forfeiture
of the monies in his bank account as these are
legitimate sources of income. The second respondent does not oppose
the granting
of a forfeiture order in respect of his Glacier
Investment account 4[...]0 and the credit balance in his FNB account
6[...].
[258]
The relevance though of Caleb's affidavit
and the documents put up in support of his opposition is that it
shows a stream of income
from his account into that of Savithree and
Gonaseelan. The applicant has consented to an order excluding his FNB
account 6[...]
from the operation of forfeiture order as this is the
account from which he conducts his personal banking and his salary
and other
legitimate income are paid into their account.
Titus
[259]
Titus submits that he is the registered
owner of section 30 of Cupido Gardens and that such property was
acquired from funds lawfully
earned. He admits that some of the funds
paid towards the purchase price were paid by his mother Savithree,
but indicated that
this was money due to him based on the return of
his investments. He submits that any assistance which he received
from his mother
Savithree was based on the understanding that such
funds were legitimate funds. In addition, he also indicates that it
would be
disproportionate to order the forfeiture of the entire
property, considering that a portion of it was paid from legitimate
funds.
Joash
[260]
Joash seeks to exclude the property
situated in sections 35 and 232 of Cupido Gardens from the operation
of the forfeiture order.
He submits that these were paid for from
funds due to him based on his investment in his mother's investment
business. He was at
all times under the impression that even though
she paid for it, the money used was money legitimately owing to him.
In addition,
he indicates that it would be disproportionate to
forfeit the property on the basis that not all the funds were
illegitimate.
[261]
It is evident that the monies and immovable
properties are property which fall within the definition of property
in section 1 of
POCA. The monies in Jocatus’ bank account are
the proceeds of unlawful activities, in this instance fraud, and any
property
obtained with such monies constitute the proceeds of
unlawful activities.
[262]
The facts of the current matter are
different from those which existed in
Seevnarayan.
In this instance one has the proceeds
of the monies from the fraud on Jocatus being utilised when making
the investments.
The
applicant has established in my view on a balance of probabilities
that monies from the Jocatus account were channelled through
various
bank accounts and ultimately to Savithree and Caleb which resulted in
the investments with Discovery and Sanlam. None of
these monies were
from legitimate sources of income. In relation to Savithree’s
one policy it has no value and it is therefore
not necessary to deal
with whether it was partially paid for prior to Jocatus monies
finding their way into Savithree’s FNB
accounts.
[263]
Consequently, the funds utilised for such
investments and the interest accrued are the proceeds of unlawful
activities. The interest
earned on the investments are as a
‘consequence of the unlawful activity, being the fraud.
[264]
The applicant has adduced evidence that the
three Sanlam policies acquired by Savithree were partly serviced from
funds received
from Jocatus as these monies were paid into her FNB
account 6[...]. From 4 August 2009, Savithree’s FNB account
started receiving
the proceeds of the Jocatus fraud. The monthly
premiums of the Matrix Top Cover policy, although taken out on 1
April 2004, were
subsequently serviced with the funds from
Savithree’s FNB account. In addition, both the Stratus
Endowment policy 4[...]6
and the Stratus Endowment policy 4[...]9
were taken out on 30 January 2014, subsequent to Savithree’s
FNB account receiving
funds from Jocatus. Consequently, these two
policies were fully serviced from the fraudulent funds received from
Jocatus.
[265]
The Discovery Endowment Plan policy number
8[...] was paid for by Savithree in the sum of R4 million. R2,5
million was received
from Jocatus’ bank account on 8 July 2014
and paid directly to Discovery and R1,5 million emanated from Caleb’s
FNB
account 6[...], also on 8 July 2014. The amount of R1,5 million
was the proceeds that were initially received by Jocatus, paid over
to Ms Pillay’s account who in turn then paid these proceeds
into Caleb’s Sanlam Glacier Investment account. Caleb withdrew
the R1,5 million from the Sanlam Glacier Investment account and paid
it into Savithree’s policy. Consequently, this policy
is the
proceeds of unlawful activities.
[266]
The Discovery Endowment Plan policy
8[...]2 in terms of Ms Ramdeen’s
affidavit were serviced entirely from Savithree’s FNB account
6[...] which were the
proceeds of the Jocatus fraud. The policy
commenced on 1 October 2010 and Savithree had already commenced
receiving payments from
Jocatus into her FNB account 6[...] from
which the monthly premiums for this policy were paid.
[267]
In
respect
of
the
Discovery
Endowment
Plan
policy
8 [...]8,
Savithree
paid a
lump
sum
contribution
of
R1,7
million
into
the
policy
which
amount
had
been
received from Caleb's FNB accounts 6[...] and
6[...] on 18 March 2015. This R1,5 million which emanated from Caleb,
was withdrawn
from his Sanlam Glacier Investment account on 16 March
2015. Consequently, at least 80% of the policy represents the
proceeds of
unlawful activities and these monies were received by
Caleb from the withdrawal of his Sanlam Glacier Investment account.
What
is also evident is that Caleb’s Sanlam Glacier Investment
account withdrawals were paid into his FNB account 6[...], which
shows that his FNB account received the proceeds of unlawful
activities.
[268]
The facts of the current matter are
different from those which existed in
Seevnarayan.
In this instance one has the proceeds
of the monies from the fraud on Jocatus being utilised when making
the investments.
The
applicant has established in my view on a balance of probabilities
that monies from the Jocatus account were channelled through
various
bank accounts and ultimately to Savithree and Caleb which resulted in
the investments with Discovery and Sanlam. None of
these monies were
from legitimate sources of income. In relation to Savithree’s
one policy it has no value and it is therefore
not necessary to deal
with whether it was partially paid for prior to Jocatus monies
finding their way into Savithree’s FNB
accounts.
[269]
Consequently, the funds utilised for such
investments and the interest accrued are the proceeds of unlawful
activities. The interest
earned on the investments are as a
‘consequence of the unlawful activity, being the fraud.
[270]
If one considers Ms Ramdeen’s
affidavit and the payments to Maritz Boshoff and Du Preez Attorneys,
the sum of R475 000, which
was the purchase price of the property,
was paid by Savithree to the attorneys. These are monies which were
paid from Savithree’s
FNB account 6[...], which account
received the proceeds of the Jocatus fraud. Similarly, the attorneys
received nine payments in
the sum of R475 000 by Savithree towards
Unit 35 Cupido Gardens in the name of Joash. Similarly, the purchase
price was paid for
with the proceeds from the Jocatus fraud from
Savithree’s FNB account.
[271]
Similarly Savithree made two payments to
the attorneys totalling R15 000 in respect of Unit 232 and once again
these are the proceeds
of crime which emanate from
Savithree’s
FNB
account
which
in
turn
received
the
proceeds
of
the
Jocatus fraud. The applicant acknowledges
that the source of two payments in the amount of R18 200 and R21 800
were not investigated
by Ms Ramdeen. The purchase price was R55 000,
and although the source could not be established, R21 800 was paid
from rental income
derived for the property. Such rental income are
the proceeds of crime as the property was purchased with the proceeds
of crime.
Consequently, a major portion of the purchase price for the
property was paid by Savithree using the funds from the Jocatus fraud
in her FNB account 6[...].
[272]
It is evident that Savithree did not have
any legitimate source of income apart from the fraudulent monies
which emanated from the
Jocatus fraud. In addition, the deposits made
into her account were not legitimate. It is evident that Ms Naidoo
made payments
to the depositors, who then in turn made payments to
Savithree’s FNB account and therefore these were not legitimate
deposits.
In addition, it would have been a simple matter for
Savithree to obtain affidavits from these alleged “depositors”
to verify the legitimacy of the deposits. In addition, none of the
persons who deposited money into her account have been verified.
[273]
As the names have not been verified, and
the fact that these funds emanated from Ms Naidoo’s payments to
them, points to the
fact that they are not legitimate and that
Savithree’s version in relation to the origin of these funds is
not corroborated.
In any event, Ms Brander from the South African
Reserve Bank confirmed that the first respondent was not registered
as a bank in
terms of the Banks Act nor was she registered as a
mutual bank in terms of the
Mutual Banks Act. Consequently
, these
deposits were in contravention of section 11 of the Banks Act, as
Savithree received deposits from more than 20 investors
in excess of
R500 000.
[274]
Most notably, the third and fourth
respondents have not disclosed the source of their funds for their
investments with Savithree.
Given that the third respondent received
payments from Ms Naidoo’s account, which money emanated from
the Jocatus fraud,
and Roxanne his wife received R677 500 000 from Ms
Naidoo, the most probable version is that these funds emanated from
the Jocatus
fraud, as is evidenced by annexure KMS34. The fourth
respondent received payments from Ms Naidoo's account which account
held the
proceeds of the Jocatus fraud, which according to annexure
KMS5 totalled R1 401 490.
[275]
The monies of the alleged depositors
reveals the following. Monies were paid from Jocatus’ bank
account into Savithree’s
account 6[...] and not to Ms Pillay’s
nor Gonaseelan’s accounts. Ms Naidoo used her FNB account
6[...] to make payments
to Tweety, Mali, Collen, Lully, Titus,
Roxanne, JE Samuel, Chantelle and Esther (being among the
depositors). Ms Naidoo's bank
account reflects payments to the said
depositors with the reference ‘Rita’. It is common cause
that Savithree is also
known by the name Rita. Savithree has not
denied this.
[276]
These depositors then in turn made payments
into Savithree’s FNB account 6[...]. These funds emanated from
Ms Naidoo's account,
which in turn received the proceeds of crime
from Jocatus’ bank account. These deposits were made by
depositors in an attempt
to create the impression that the funds in
Savithree’s FNB account 6[...] emanated from a legitimate
source, whereas the
original source of these funds was Ms Naidoo's
FNB account, which in turn had received the proceeds of crime from
Jocatus’
bank account.
[277]
Firstly,
there is a concession by Savithree that the monies from Jocatus are
the proceeds of the fraud committed by Gonaseelan.
She, Caleb, Joash
and Titus in addition submit that some of the monies emanated from
investors and were thus legitimate income.
legitimate money was mixed
with illegitimate money, albeit on a small scale. This is often
referred to as commixtio. In insolvency
law, the principle which
emerges is that money deposited into a banking account becomes the
property of the bank by virtue of commixtio
but the resulting credit
belongs to the customer and the account holder has a personal right
to the funds held in the account.
This was considered in the decision
of
South
African Reserve Bank v Leathern NO and others.
[99]
In this instance if one accepts Savithree’s say so then the
monies in account do not belong to her and she has no right to
lay
claim to them.
[278]
In my view, Savithree has not established
that these are legitimate monies from investors. All she has done is
content herself with
an allegation to such effect. One would have
expected that these persons would have put up confirmatory affidavits
confirming this.
Secondly,
even if she was taking money from investors she had no entitlement to
do so as she was not registered as a Bank or mutual
bank as indicated
by the applicant.
[279]
In addition I do not accept that these
monies are from investors. The applicant demonstrated that these were
monies channelled to
various persons to create the impression that
they were monies from investors. In fact Ms Ramdeen’s affidavit
relating to
the flow of these funds demonstrates they were not. In my
view the applicant has discharged the onus of demonstrating that
these
were the funds from Jocatus which were channelled to disguise
the true source thereof. Consequently, it must follow that I do not
accept that the first to fourth respondents have discharged to onus
of establishing that the properties fall to be excluded from
forfeiture.
[280]
I have no doubt that Savithree was a party
to Gonaseelan’s fraud. How else would he have perpetrate the
fraud? In addition,
I have no doubt that she, her sons, Mr Vernon
Naidoo, Ms Naidoo, Ms Pillay and others also knew of the fraud and
assisted in disbursing
the funds and trying to conceal the true
source of the funds.
[281]
In my view, the applicant has established
that the funds in Jocatus’ bank account were the proceeds of
crime, namely fraud.
An elaborate plan was hatched to disguise the
true origin of the funds. No legitimate income was earned by
Savithree and the property
acquired in annexure B was acquired with
the proceeds of the unlawful activities. No investors exist. These
were the Jocatus funds
cleverly disguised.
The fifth and sixth
respondents
[282]
Section 50(1) of POCA authorises the court,
subject to section 52, to make a forfeiture order if it is found as a
matter of probability
that the properties are proceeds of unlawful
activities. It cannot be disputed that the property in the present
matter is the proceeds
of unlawful activities. In terms of section
52(2) of POCA:
‘
(2)
The High Court may make an order under
subsection (1), in relation to the forfeiture of the proceeds of
unlawful activities, if
it finds on a balance of probabilities that
the applicant for the order—
(a)
had acquired the interest concerned legally
and for a consideration, the value of which is not significantly less
than the value
of that interest; and
(b)
where the applicant had acquired the
interest concerned after the commencement of this Act, that he or she
neither knew nor had
reasonable grounds to suspect that the property
in which the interest is held is the proceeds of unlawful
activities.’
[283]
Nugent JA held the following in
Mazibuko
and Another v National Director of Public Prosecutions
:
‘
Section
52 of POCA provides what has loosely been called an “innocent
owner” defence to a person whose interests are
affected by a
forfeiture order (though that is a misnomer because, as pointed out
in
Cook
Properties
,
“innocence [of the offence] is not enough”). That section
permits a court to exclude “from the operation of
[a forfeiture
order]” what are called “certain interests” in the
property concerned, if it is shown by the applicant
for such an
exclusion that the interest was legally acquired, and that he or she
“neither knew nor had reasonable grounds
to suspect” that
the property in which the interest is held is an instrumentality of
the offence.’
[100]
(Footnotes omitted.)
[284]
In this matter the fifth and sixth
respondents contend they are innocent owners.
Mazibuko
concerned an appeal by the appellants,
who were married to each other in community of property, against a
forfeiture order granted
by Nicholson J in the court
a
quo.
The court
a
quo
ordered the forfeiture of a farm
jointly registered in their names to the State on the basis that it
was an instrumentality of an
offence involved in the unlawful
manufacture of drugs. It was common cause that both appellants relied
on the ‘innocent owner’
defence as contemplated in
section 52(2A) of POCA. It was conceded that the farm was an
instrumentality of an offence and that
in relation to the
proportionality argument this was in favour of the NDPP. The second
appellant, who was the wife, submitted that
she neither knew nor had
reasonable grounds to suspect that the farm was used as an
instrumentality of an offence.
[285]
It emerged in the court
a
quo
that the first appellant knew of
the unlawful manufacture of drugs on the farm. The conundrum facing
the court
a quo
related
to the fact that the second appellant’s interest in the farm
formed an undivided and indivisible part of the joint
estate by
virtue of her marriage in community of property to the
first
appellant.
The
NDPP
had
argued
that
to
exempt
the
second
appellant’s interest from the
immovable property would defeat the purpose of POCA and would be
inimical to the spirt and purpose
of POCA, as by allowing her to
retain her half share in the property, the first appellant would
enjoy the proceeds of his illegal
activities.
[286]
Bosielo
AJA, in a minority judgment, took the view that even if the first
appellant did not have actual knowledge of the operations
on the
farm, ‘because he did not act like a reasonably diligent and
vigilant property owner as envisaged by sections 1(3)
(a)
and
(b)
of
POCA’, he could not abdicate his responsibility over the farm,
and ‘[g]iven the magnitude of the illegal activities
on the
farm’ it could not be said that he did not know what was
happening on the farm. Both the first and second appellants
had a
‘responsibility to ensure that the farm was not used for
unlawful purposes’.
[101]
[287]
Bosielo
AJA
[102]
approved
of the following dictum by Supreme Court of Appeal in
RO
Cook Properties
:
‘
We
agree that property owners cannot be supine. In particular, we
endorse the notion that the State is constitutionally permitted
to
use forfeiture, in addition to the criminal law, to induce members of
the public to act vigilantly in relation to goods they
own or possess
so as to inhibit crime. In a constitutional State law-abiding
property-owners and possessors must, where reasonably
possible, take
steps to discourage criminal conduct and to refrain from implicating
themselves or their possessions in its ambit.
And the State is
entitled to use criminal sanctions and civil forfeitures to encourage
this. Here constitutional principle recognises
individual moral
agency and encourages citizens to embrace the responsibilities that
flow from it.’
[103]
[288]
Bosielo
AJA then held that a court can exercise a discretion, when faced with
an application for forfeiture, to grant the order
and the applicant
for the exclusion of his or her interest ‘has to prove that he
or she acquired the property lawfully and
further that he or she did
not know or did not have reasonable grounds to suspect that the
property was used as an instrumentality
of an offence referred to in
Schedule 1’.
[104]
Bosielo AJA acknowledged that the effects of forfeiture are draconian
and invasive of people’s rights to their property.
There as a
conflict between the right to property as entrenched in section
25(1) of the Constitution and an order for the
forfeiture of property
under section 50(1) of POCA.
[289]
Bosielo AJA took the view that the
forfeiture order granted by the court
a
quo
against the second appellant did
not pass constitutional muster and constituted an arbitrary
deprivation of her right to property.
It offended the purpose of POCA
and could not stand. He took the view that there was nothing wrong
with a forfeiture order being
granted save that the curator
bonis
ought to pay to the second appellant
her half share from the proceeds of the sale of the immovable
property once all legitimate
claims against their property had been
settled. He found that this order was appropriate as the forfeiture
was aimed at the instrumentality
of offence, being the property and
not the proceeds. Such proceeds derived from the sale of the property
can never be equated with
an instrumentality of an offence. He was of
the view that there was no legal impediment for the second appellant
to be paid her
half share of the proceeds after the sale of the farm.
[290]
Nugent JA did not agree with the order
proposed by Bosielo AJA and was of the view that Bosielo AJA’s
judgment did not address
the difficulty which presented itself in the
matter. He was of the view that the court
a
quo
declined to make an order excluding
Mrs Mazibuko’s interests in the operation of the forfeiture
order as it was not in law
permitted to do so as the interest in the
property which was enjoyed by the second appellant was not capable in
law of separation.
Nugent JA held that the court is not concerned
with ordinary rights of co-owners.
[291]
The section was however capable of a
construction that avoided yielding an unconstitutional result. Nugent
JA held that the second
appellant had an
‘
interest
in the proceeds of the property as she has in the property itself,
albeit that the accrual of that interest might be contingent
on its
sale, and I see no reason why that contingent interest does not fall
within the wide definition of the term in the statute.
Clearly the
proceeds of the sale are susceptible to separation. It seems to me in
the circumstances that Mrs Mazibuko's contingent
interest in the
proceeds of a sale is capable of being excluded from the operation of
the order so far as the order operates to
require the curator bonis
to deposit the proceeds into the Account.’
[292]
In my view the facts of this matter are
decidedly different from that which pertained in
Mazibuko.
The fifth and sixth respondents deny
being part of any criminal acts and confirmed that it was Gonaseelan,
the fifth respondent's
brother, who was responsible for the fraud. In
addition, this was an affected gift and consequently because they
knew nothing of
the criminal conduct and the fraudulent manner in
which the property was purchased, it ought to be excluded from the
operation
of the forfeiture order.
[293]
I have no doubt that the fifth respondent
was not a party to Gonaseelan’s fraudulent conduct. He had the
foresight at the
time his brother purchased the home for him to
enquire where the money was coming from for him to purchase the
property. There
is no basis to doubt his sincerity that he looked
upon this as a gesture from his brother as he was taking care of his
parents
and had been taking care of them their entire lives.
[294]
In relation to the fifth and sixth
respondents, no matter how sympathetic I am to their plight, I have
to accept that the property
is the proceeds of unlawful activities
and purchased from the proceeds of the fraud perpetrated on Tiger
Brands. There is evidence
in the affidavit of Ms Ramdeen that these
monies were paid for by Ms Naidoo and she in turn received these
funds from Jocatus’
bank account. It is clear that the property
so derived is the proceeds of unlawful activities. In addition the
fifth and sixth
respondents have conceded this. They have
acknowledged that their suspicions were aroused when the purchase of
the property occurred.
They do not in my opinion constitute innocent
owners as envisaged in
Mazibuko
or
in s 52 which justify the exclusion of their interest in the
immovable property
.
[295]
Turning now to deal with the
proportionality enquiry. Prior to granting a forfeiture order under
POCA a court must enquire as to
whether such an order would amount to
an arbitrary deprivation of property in violation of section 25(1) of
the Constitution. In
National Director
of Public Prosecutions v Van Staden and others
,
Nugent JA states the proportionality rule thus
‘
To
avoid an order for forfeiture in such cases being arbitrary, and thus
unconstitutional, a court must be satisfied that the deprivation
is
not disproportionate to the ends that the deprivation seeks to
achieve. In making that determination, the extent to which the
deprivation is likely to afford a remedy for the ill sought to be
countered, rather than merely being penal, will necessarily come
to
the fore, bearing in mind that the ordinary criminal sanctions are
capable of serving the latter function.’
[105]
[296]
The
SCA, with reference to
Van
der Burg and another v National Director of Public Prosecutions and
another
,
[106]
has held that ‘the standard of proportionality under POCA
amounts to no more than that forfeiture should not constitute
arbitrary deprivation of property or the kind of punishment not
permitted by section 12(1)
(e)
of
the Constitution’.
[107]
The
proportionality ‘enquiry is aimed at balancing the
constitutional imperative of law enforcement and combating crime and
the seriousness of the offence, against the right not to be
arbitrarily deprived of property’.
[108]
The primary focus of forfeiture is ‘aimed primarily at
crippling or inhibiting criminal activity; and that it is likely to
have its greatest remedial effect where crime has become a
business.’
[109]
[297]
The
considerations applicable in dealing with forfeiture, and the
proportionality enquiry were succinctly dealt with by the
Constitutional
Court in
Mohunram
.
[110]
Although the judgment consisted of a majority and a minority
judgment, all the members of the court were of the view that the
property concerned was an instrumentality of an offence as
contemplated by POCA. The court endorsed the interpretation and
application
of the concept of an instrumentality of an offence which
was fully considered by the Constitutional Court in
Prophet
v National Director of Public Prosecutions
.
[111]
The
members of the court were split in relation to whether or not the
offences for which forfeiture was authorised in terms of chapter
6 of
POCA were limited to those created by POCA or involved all crimes.
[298]
The Constitutional Court was also divided
on the issue of whether the forfeiture was disproportionate. The
majority consisting of
Moseneke DCJ (Mokgoro and Nkabinde JJ
concurring) and Sachs J (O’Regan J and Kondile AJ concurring)
upheld the appeal, set
aside the order of the Supreme Court of
Appeal, and dismissed the application to declare the property
forfeited to the State. The
minority consisting of Van Heerden AJ
(Langa CJ, Madlala, Van Der Westhuizen, and Yacoob JJ concurring)
concluded that the forfeiture
was not disproportionate.
[299]
In
addition, the members of the Constitutional Court considered it
necessary to clarify the confusion which had emerged from judgments
on the standard of proportionality applicable in the assessment of
the relationship between the nature and value of the property
subject
to forfeiture, the nature and gravity of the crime involved and the
role the property played in the commission of the offence.
Having
considered the minority and majority views in various judgments from
the Supreme Court of Appeal, Van Heerden AJ opined
that it would be
wrong for POCA to be used in a manner which blurred ‘the
distinction between the purposes and the methods
of criminal law
enforcement, on the one hand, and those of civil law, on the
other’.
[112]
[300]
There
was ‘no justification for resorting to the remedy of civil
forfeiture under POCA as a
substitute
for
the effective and resolute enforcement of “ordinary”
criminal remedies’.
[113]
Whilst
acknowledging that it would be difficult to
‘
draw
a clear distinction in many cases between “organised crimes”,
on the one hand, and “ordinary crimes”,
on the other . .
.
it
is potentially problematic to link a yardstick of “significant
disproportionality” with the former type of crime
and that of
“disproportionality
simpliciter
”
with the latter type’.
[114]
Van Heerden AJ opined
that
‘
[74]
…there should be only one evaluative standard applicable to
all the offences that fall within the ambit of the forfeiture
provisions of POCA. That standard simply involves asking the question
whether the forfeiture of the property concerned is, in all
the
circumstances of the case (including the nature and seriousness of
the offence), disproportionate in the sense discussed above.
Adding
labels and qualifiers to the degree of “disproportionality”
required can only give rise to unnecessary confusion.
The organised
crime element, while significant in assessing whether a
forfeiture order should be made in a particular case,
is not
necessarily decisive. The criminal activities of an efficient and
energetic individual miscreant may well have a more extensive
reach
and a greater negative social impact. So, for example, an individual
drug dealer selling “tik” (the drug being
manufactured in
Prophet
)
through city schools may well have a larger
client base and more outlets than a drug syndicate.
[75]
It is the task of the court to ensure that the deprivation of
property that will result from a forfeiture order is not arbitrary.
The proportionality assessment is a
legal
one,
based on an evaluation of all the relevant factors in the full
factual matrix of the particular case. The
onus
of
establishing that all the requirements for a forfeiture order in
terms of s 50 of POCA - including that of proportionality -
have been
met, rests on the NDPP throughout. However, as some of the factual
material relevant to the proportionality analysis
will often be
peculiarly within the knowledge of the owner of the property
concerned, the owner who is faced with a
prima
facie
case
established by the NDPP would in the usual course be well-advised to
place this material before the court. This
does
not
,
however, shift the
onus
of
proof to the owner in question; it merely places on the owner an
evidentiary burden or, as it is sometimes called, a burden of
adducing evidence in rebuttal.’
[115]
(Footnotes omitted.)
[301]
Among the considerations which the court
a
quo
and the Supreme Court of Appeal
took into account in deciding on the proportionality, was the value
of the property and the profits
which emanated from the casino which
had been operated on the property. In this regard, Van Heerden AJ
said the following.
‘
A
note of caution must be sounded. It is certainly not
necessary
for
a
court, in considering whether or not a forfeiture order applied for
will be disproportionate, to undertake the kind of “financial
exercise” set out in the four preceding paragraphs. However, as
the figures were available in this case and were referred
to by the
applicants and the NDPP, it is useful to take them into consideration
in the present matter.’
[116]
[302]
It would appear that as the figures were
available, the court took them into account when performing a
proportionality analysis.
It also held that
‘
The
relevant question for purposes of the proportionality enquiry is
therefore not whether
the
whole
of
the property was used in furtherance of the crime. It is whether
forfeiture of the whole property would be disproportionate to
the
seriousness of the crimes committed and
the
benefits derived from those crimes.’
[117]
And that
‘
Statutory
civil forfeiture of assets is meant to pursue worthy and noble
objectives aimed at curbing serious crime. And yet there
is no
gainsaying that, in effect, it is Draconian. It is premised on the
notion that it is a civil remedy and that the prosecution
or the
State has to show only on a balance of probabilities that the
property may be seized and forfeited to the State.’
[118]
[303]
A
question which has arisen time and time again in matters where a
court is asked to issue a forfeiture order in respect of the
proceeds
of crime, has been whether the proportionality test and the arbitrary
deprivation provisions in section 25 of the Constitution
are
applicable. In
National
Director of Public Prosecutions v Komane
[119]
in which Seegobin J had to determine whether the property was the
proceeds of unlawful activities. In finding that it was, the
aspect
of proportionality arose. Counsel who had appeared for the applicant
in that case had indicated that proportionality has
generally been
dealt with in applications concerning instrumentalities of an
offence. Seegobin J opined that the enquiry related
proportionality
required an examination of
inter
alia
the
nature and severity of the crime in relation to the property
concerned. He took the view that proportionality was not strictly
a
requirement of POCA but was a factor to be taken into account in
determining whether or not the forfeiture was arbitrary, having
regard to the provisions of section 25(1). He referenced
Mohunram
where
Constitutional Court held the following:
‘
It
is the task of the court to ensure that the deprivation of property
that will result from a forfeiture order is not arbitrary.
The
proportionality assessment is a
legal
one,
based on an evaluation of all the relevant factors in the full
factual matrix of the particular case. The
onus
of
establishing that all the requirements for a forfeiture order in
terms of s 50 of POCA - including that of proportionality -
have been
met, rests on the NDPP throughout. However, as some of the factual
material relevant to the proportionality analysis
will often be
peculiarly within the knowledge of the owner of the property
concerned, the owner who is faced with a
prima
facie
case
established by the NDPP would in the usual course be well-advised to
place this material before the court. This does
not
,
however, shift the
onus
of
proof to the owner in question; it merely places on the owner an
evidentiary burden or, as it is sometimes called, a burden of
adducing evidence in rebuttal.’
[120]
[304]
It must however be noted that
Mohunram
dealt with an instrumentality of an
offence and not the proceeds of unlawful activities.
[305]
In
National
Director of Public Prosecutions v Salie and another
[121]
Breitenbach
AJ had to consider a forfeiture order in circumstances where the
property was the instrumentality of an offence, but
was also alleged
to have been purchased with the proceeds of crime. He took the view,
having regard to the distinction between
chapters 5 and 6 of POCA,
that
‘
.
. . the definition of “proceeds of unlawful activities”
makes it clear that the connection between the proceeds and
the
unlawful activities need not be direct. The proceeds, for instance,
include benefits which someone legitimately acquired but
retained by
or as a result of his or her offences.’
[122]
He considered the
definition of proceeds of unlawful activities in section 1 of POCA
and after having had regard to
RO Cook Properties,
held
following:
‘
In
Cook
Properties
supra
para 64 Mpati DP and Cameron JA pointed out that in essence the
definition requires that the property in question be “derived,
received or retained” “in connection with or as a result
of” unlawful activities. In para 66 applying
Lipschitz
NO v UDC Bank Ltd
1979
(1) SA 789
(A) at 804C – G, they added that, although the words
'in connection with' may literally have a very wide connotation, they
are seldom used in legislation in their wide, literal sense and they
are not used in that sense in the definition of “proceeds
of
unlawful activities”. When the judgment in
Cook
Properties
is
read as a whole, the implication is that the words “in
connection with” in the definition of “proceeds of
unlawful activities”, like the words “concerned in”
in the definition of “instrumentality of an offence”,
require a reasonably direct link between the crime committed and the
property to be forfeited.
’
[123]
[306]
In
deciding on the proportionality aspect, Breitenbach AJ took the view
that there were three sections in POCA which support the
proposition
that proportionality was a requirement for the forfeiture to the
State of proceeds of crime, not just instrumentalities.
In this
regard he referenced section 18(1) of POCA which falls under chapter
5, and section 51
(b)
of
POCA which falls under chapter 6.
[124]
[307]
After
a discussion of the cases and the provisions of this section,
Breitenbach AJ specifically concluded that proportionality is
indeed
a requirement for the forfeiture of proceeds of unlawful activity
under POCA.
[125]
In
concluding that the forfeiture of the properties was justified, he
had regard to the fact that the properties were used to generate
income which had been derived from the commission of offences. He
took the view that there was a relatively close connection between
the property and the commission of the offences. He then undertook a
comparison between the value of the respondent’s interest
in
the property and the value of the proven total benefit from the
unlawful activities. Even though there was a discrepancy in
these
two, he was of the view that forfeiture to the State of the whole
property would not be disproportionate when viewed in monetary
terms,
and ordered forfeiture as he was of the view it would not constitute
an arbitrary deprivation.
[308]
In
Bobroff
and another v National Director of Public Prosecutions
[126]
the
Supreme Court of Appeal had to consider two issues which arose in a
forfeiture application, the first being the jurisdiction
of the court
to make a forfeiture order and the second, which is of relevance to
this judgment, is whether the applicant had established
that the
property forfeited was the proceeds of unlawful activities.
Essentially, the NDPP had sought to preserve and forfeit credit
balances in Israeli bank accounts held by Mr Ronald Bobroff and his
son, Mr Darren Bobroff. The NDPP had contended that the credits
in
these accounts were the proceeds of unlawful activities pursuant to
complaints lodged by former clients. The NDPP contended
that the
credit balances represented the proceeds of unlawful activities in
particular, theft, fraud, money laundering and various
transgressions
of South African tax legislation. In confirming that the monies were
indeed the proceeds of unlawful activities,
the NDPP had relied on an
affidavit by a whistle blower who was an accountant. The Bobroffs had
embarked on an elaborate scheme
to transfer monies into Australian
bank accounts and had indicated that these monies were from money
legitimately earned by them
but flowed through financial institutions
as they travelled frequently and deposited
travel
allowances
into
various
accounts
abroad.
The
court
found
that
the
scheme which the Bobroffs had embarked upon was to ‘to disguise
the origin and identity of the money. This practice bore
all the
hallmarks of money-laundering’.
[127]
[309]
In
considering whether the NDPP had established that the amounts held in
the bank accounts constitute the proceeds of unlawful activities,
it
held the following:
‘
The
definition
of
“proceeds
of
unlawful
activities”,
quoted
earlier,
relates
to
any
property,
benefits
or
reward
which
has
been
derived,
received
or
retained,
directly
or
indirectly,
in
connection with or as a result of any unlawful activity, and it
includes any property representing property so derived. In order
to
bring property within the ambit of the definition, a link must be
established, on the balance of probabilities, between the
identified
assets and the alleged
offences.
A
benefit
derived
“directly”
will
include,
for
example,
funds
paid
for
a
bribe,
or
amounts
actually
stolen
by
a
thief.
“Indirect”
benefits
do
not
accrue
directly
from
the
commission of the offence and would, it seems to me, include the
appreciation in value of an asset stolen, interest accrued
on
embezzled funds held in a bank account, or a stock portfolio
purchased
with
stolen
funds.
It
would
also
include
ancillary
benefits
that
would
not
have
accrued but for the commission of the offence.’
[128]
[310]
It referenced the wide definition to be
applied to the proceeds of unlawful activities as enunciated in
RO
Cook Properties
. It held further that:
‘
Where
proceeds of crime have been laundered with the very purpose of
disguising the origin and identity thereof, they may be mixed
with
other assets which may not be the proceeds of crime, and they may be
converted into other forms of asset which technically
are not direct
proceeds of crime. In the case of money, this would typically be the
case.’
[129]
[311]
And further, the court found that:
‘
Once
it is shown, however, on a balance of probabilities, that the funds
had been derived from fraudulent activity, it follows,
for the
reasons set out earlier, that any appreciation thereof must also be
proceeds of that activity.’
[130]
[312]
The
court was of the view that a sufficient link had been established
between the credit balances in the account and the offences
which
were referred to. I
n
deciding on
the
aspect
of
proportionality,
the
court
took
the
view
that
the
NDPP
must
demonstrate that the forfeiture is proportional to the proceeds
received.
[131]
An
examination of the credits in the various accounts also demonstrated
that certain amounts were not the proceeds of unlawful activity.
However, given the extent of the fraud and theft which had been
perpetrated over a considerable period of time and the failure
by the
Bobroffs to explain the origin of the matter which was exclusively
within their knowledge, the court found that the forfeiture
order
would not be disproportionate to the proceeds received from the
unlawful activity proved. This was despite the fact that
certain of
the credits were not shown to be the proceeds of unlawful
activity.
[132]
[313]
Whether
or not a proportionality test is to be applied in respect of proceeds
of crime was settled by the Constitutional Court in
National
Director of Public Prosecutions v Botha NO and another.
[133]
The
minority judgment penned by Victor AJ found that a proportionality
analysis applied to the proceeds of crime. In the majority
judgment,
the court took the view that the judgment of Victor AJ which
concluded that a proportionality exercise applied equally
to a
forfeiture of proceeds of an unlawful activity was incorrect as it
proceeded from the incorrect premise. The court found that
in the
instance of Mrs Botha she had no right to the money paid by Trifecta
for the renovations affected on her house and the money
constituted
the proceeds of an unlawful activity. Consequently, the was no
question of the deprivation of a right in property,
and the majority
held the following:
‘
All
of the aforegoing reasons illustrate the inappropriateness of
applying the proportionality analysis in the case of a forfeiture
of
proceeds of a crime, in circumstances where the person from whom the
proceeds are taken does not have any interest which is
lawfully
recognised.’
[134]
[314]
In this matter, none
of the respondents have an interest in the property being forfeited
and therefore the proportionality analysis
does not apply following
on the majority judgment in
Botha
.
Even if I am incorrect in this conclusion, the forfeiture will not be
disproportionate having regard to the total value of the
fraud
perpetrated on Tiger Brands. The properties were acquired with the
proceeds of the fraud and liable to forfeiture.
# The exclusion of items 5,
6 and 12 in Annexure B from the operation of the forfeiture order
The exclusion of items 5,
6 and 12 in Annexure B from the operation of the forfeiture order
#
[315]
I have, when considering the items to be
forfeited in annexure B, taken into account the replying affidavit of
Mr Kenneth Mark Samuels
and the submissions in the heads of argument
of the first to fourth respondents. I do not agree with the
submission of Mr Howse
that the ‘concessions’ in the
replying affidavit amount to an abandonment of the forfeiture
application and that this
is indicative that no case for forfeiture
has been established.
[316]
In
respect of item 5 which is Savithree’s FNB Premier Cheque
account 6[...], the applicant no longer seeks the forfeiture
of the
monies in the account as there is no value in the account.
[135]
Item 6, which is Savithree’s FNB Money Market Call account
6[...], was closed on 1 April 2016 prior to the preservation order
being granted and it is for this reason that no order is being sought
against it.
[136]
[317]
As
regards item 12 which is the Sanlam Matrix Topcover policy 1[...],
this policy lapsed on 17 January 2017, hence no order is being
sought
by the applicant against it.
[137]
# Costs
Costs
[318]
There is no reason to depart from the usual
rule in relation to costs. The successful party is entitled to its
costs. Having mentioned
this, in my view the fifth and sixth
respondents’ opposition was that of persons who sought to place
information before the
court to assert their rights as innocent
owners. In my view, as they were lay persons and co-operated with the
curator
and
NDPP, a costs order against them is not warranted.
# Conclusion
Conclusion
#
[319]
The delivery of the judgment has
regrettably been delayed by a number of factors. The first being that
I have not had the necessary
secretarial support for a considerable
period of time. This has been brought to the attention of the Office
of the Chief Justice
as well as the Judge President, Acting Judge
President and Deputy Judge President of the division.
[320]
In addition, the application papers
themselves are some 22 volumes and in excess of 2 000 pages.
Moreover, the nature of some of
the issues canvassed have not
previously been dealt with and the research and judgment itself has
taken some time. This has further
been complicated by the issues
placed in dispute by the respondents. This has also contributed to
the judgment being a lengthy
one.
[321]
The applicant has annexed to the notice of
motion a draft order as well as annexure B and C. I have excluded
items 5, 6 and 12 from
annexure B in line with the content of the
replying affidavit of Mr Kenneth Mark Samuels. In addition, to avoid
any confusion,
it is also appropriate to grant an order dismissing
the application by the first to sixth respondents for the exclusion
of their
interest in the property listed in Annexure B.
[322]
In addition, paragraph 5 ( c ) of the order
is not in the usual form in line with the provisions of s 57 and 63
of POCA which make
provision for the proceeds to be paid into the
Criminal Assets Recovery Account. This is reflected in the draft
order annexed to
the papers and I am aware that in matters where the
victim is capable of being compensated, the Asset Forfeiture Unit of
the applicant
does request such an order. In any event, there was no
objection raised to such relief by the respondents in the
application.
# Order
Order
[323]
In the result the following orders will
issue:
1.
The respondents are granted condonation for
the late filing of their heads of
argument
and practice note.
2.
An order is granted in terms of
section 50
of the
Prevention of Organised Crime Act
>
121
of
1998
(the
Act),
declaring
forfeited
to
the
State,
the
property
listed
in
Annexure B (the property) to the notice of motion, save for the
exclusion of items 5, 6 and 12. The property is currently in
the
custody of the
curator bonis
.
3.
Phinda Shembe of Shembe Attorneys, who was
appointed as
curator bonis
in
terms of the preservation order, is authorised to continue to act as
such.
4.
In terms of section 56(2) of the Act, the
property shall vest in the
curator bonis
on behalf of the State on the date on
which this order takes effect.
5.
In terms of section 57 of the Act, the
curator bonis
is
authorised, as of the date on which this order takes effect, to
perform all the powers and functions specified in the Act, including
the following:
(a)
to take possession of the property on
behalf of the State;
(b)
to deduct his fees and expenditure;
(c)
to deposit the balance of the proceeds of
the sale of the property into the bank account of Tiger Brands and
Treats, a division
of Tiger Consumer Brands Ltd, Nedbank, account
number 1[...], branch code 1[...], being the victim in the matter;
and
(d)
to perform any ancillary acts which, in the
opinion of the
curator bonis
,
are reasonably necessary to effect such fulfilment.
6.
In terms of section 50(6) of the Act, this
forfeiture order shall not take effect before the period allowed for
an application under
section 54 of the Act or an appeal under section
55 of the Act has expired or before such application or appeal is
disposed of.
7.
In terms of section 50(5) of the Act, the
registrar of this court, or the State Attorney (KZN) on the request
of the registrar,
is to publish a notice of this forfeiture order in
the form set out in annexure C to the notice of motion in the
Government Gazette
as
soon as practicable after this order is granted.
8.
The first to fourth respondents are
directed to pay the costs occasioned by their opposition to the
forfeiture application.
9.
The application by the first and third to
sixth respondents for the exclusion of their interests in the
property in Annexure B is
dismissed.
HENRIQUES J
Case
Information
Date
of Set Down
: 19
June 2020
Date
of Hearing
: 03
July 2020
Date
of Judgment
: 30
June 2023
Appearances
Counsel
for the Applicant:
N.
Sayed
Asset
Forfeiture Unit, KZN
1st
Floor, Southern Life Building 88 Joe Slovo Street, Durban
Email:
nsayed@npa.gov.za
Instructed
by:
State
Attorney, KZN
6th
Floor, Metlife Building
391
Anton Lembede Street,
Durban
Ref: Ms Mandisa Dlamini/
119/000552/16/J/P
Tel:
031 365 2503 / 334 5202
Email:
MandiDlamini@justice.gov.za
Counsel
for the First to Fourth
Respondents:
J
E Howse SC
Instructed
by:
Leon
Pillay & Company
168
Florence Nightingale Drive
Westcliff,
Chatsworth
c/o
Rodney Reddy and Associates
Cypress
Avenue,
Stamford
Hill Ref: LP/ S152/1
Tel:
031 401 8061 / 082 450 5992
Email:
leonpillay@telkomsa.net
Fifth
and Sixth Respondents:
In
person
10
Norwood Road, Athlone Park, Amanzimtoti
Email:
dirugovender@gmail.com
This judgment was handed
down electronically by circulation to the parties’
representatives by email, and released to SAFLII.
The date and time
for hand down is deemed to be 09h30 on 30 June 2023.
[1]
Preservation
order dated 3 October 2016, Volume 1, pages 4–19.
[2]
These
are items 7-12 of Annexure B.
[3]
In
respect of the second respondent, the property is item 3 in Annexure
B. In respect of the fourth
respondent,
these are items 1 and 2 of Annexure B.
[4]
Item
4 of Annexure B.
[5]
President
of the Republic of South Africa and others v South African Rugby
Football Union and others
[1999]
ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) (‘
SARFU
’).
[6]
South
African
Commercial
Catering
and
Allied
Workers
Union
and
others
v
Irvin
&
Johnson
Ltd
(Seafoods Division Fish Processing)
[2000]
ZACC 10
;
2000 (3) SA 705
(CC);
2000 (8) BCLR 886
(CC) para 15.
[7]
S
v Shackell
[2001]
ZASCA 72
;
2001 (4) SA 1
(SCA);
[2001] 4 All SA 279
(A) (‘
Shackell’)
.
[8]
National
Director of Public Prosecutions and another v Mohamed NO and others
[2002]
ZACC 9
;
2002
(4)
SA 843 (CC);
2002 (9) BCLR 970
(CC) para 17.
[9]
Section
37 of POCA.
[10]
Section
38(2)
(a)
.
[11]
Section
38(2)
(b)
.
[12]
Section
38(2)
(c)
.
[13]
Section
39(5).
[14]
Section
40.
[15]
Section
52(2).
[16]
Prophet
v National Director of Public Prosecutions
[2006]
ZACC 17
;
2006 (2) SACR 525
(CC);
2007 (2) BCLR 140
(CC) para 46.
[17]
National
Director of Public Prosecutions v Cole and others
2005
(2) SACR 553
(W) para 15.
[18]
Ibid
para 15.
[19]
Prophet
para
58.
[20]
Prophet
para
61.
[21]
First
National Bank of SA Ltd t/a
Wesbank
v Commissioner, South African Revenue Service and
another;
First National Bank of SA Ltd t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002
(4) SA 768
(CC);
2002 (7) BCLR 702
(CC) para 100 (‘
Wesbank
’).
[22]
Wesbank
para
98.
[23]
Wesbank
para
100.
[24]
Annexure
KMS1, Volume 16, pages 1533–1544.
[25]
Affidavit
of
Kenneth
Mark
Samuels
para
11,
Volume
16,
pages
1502–1505
and
annexures
KMS3-MS19, pages 1550–1570.
[26]
Annexure
KMS2, Volume 16, pages 1545–1549.
[27]
Annexure
MR5, Volume 4, pages 344–345.
[28]
Annexure
MR6, Volume 4, pages 346–355.
[29]
Annexure
MR7, Volume 4, pages 356–358.
[30]
Annexure
MR8, Volume 4, pages 359–361.
[31]
Annexure
MR9, Volume 4, pages 362–368.
[32]
Annexure
MR10, Volume 4, pages 369–370.
[33]
Annexure
MR11, Volume 4, pages 371–400.
[34]
Annexure
MR12, Volume 5, pages 412–417.
[35]
Annexure
MR14, Volume 5, pages 439–446.
[36]
Annexure
MR17, Volume 5, pages 449–500.
[37]
Annexure
MR19, Volume 6,
page
592.
[38]
Annexure
MR21, Volume 7, page 614.
[39]
Annexure
MR22, Volume 7, pages 615–642.
[40]
Annexure
MR30, Volume 11, page 1017.
[41]
Annexure
MR32, Volume 11, page 1034.
[42]
Annexure
MR33, Volume 11, page 1035.
[43]
Volume
11, page 1036.
[44]
Annexure
MR35, Volume 11, page 1055.
[45]
Annexure
MR37, Volume 11, pages 1076–1079.
[46]
Annexure
MR38, Volume 11, pages 1080–1081.
[47]
Annexure
MR39, Volume 11, pages 1082–1088.
[48]
Annexure
MR40, Volume 11, page 1089.
[49]
Annexure
MR41, Volume 11, page 1090–1093.
[50]
Annexure
MR45, Volume 12, page 1119.
[51]
Volume
1, page 97-98.
[52]
The
extract of bank statements in annexed as MR46, Volume 12, pages
1120–1126.
[53]
Annexure
MR47, Volume 12, pages 1140–1149.
[54]
Annexure
MR48, Volume 12, pages 1160–1200.
[55]
Annexure
MR49, Volume 13, pages 1255–1256.
[56]
Annexure
MR51, Volume 13, page 1265.
[57]
Annexure
MR54, Volume 13, pages 1278–1300; annexure MR55, Volume 14,
pages 1378–1397; and annexure MR56, Volume 14,
pages
1398–1400.
[58]
Annexure
MR58, Volume 15, page 1404.
[59]
Annexure
MR60, Volume 15, page 1459.
[60]
Annexure
MR61, Volume 15, pages 1460–1475.
[61]
Volume
1, paras 24.1 and 24.2, page 78.
[62]
Para
21.16 of the affidavit.
[63]
Mohunram
and another v National Director of Public Prosecutions and another
(Law Review Project as amicus curiae)
[2007]
ZACC 4
;
2007 (4) SA 222
(CC);
2007 (6) BCLR 575
(CC) para 154.
[64]
National
Director of Public Prosecutions v Van Staden and others
[2006]
ZASCA 107
;
2007 (1) SACR 338
(SCA);
[2007] 2 All SA 1
(SCA) para 8.
[65]
Ms
Brander’s affidavit, annexure KMS33.
[66]
Affidavit
of Vernon Naidoo, Volume 17, pages 1601–1603.
[67]
National
Director of Public Prosecutions v Komane and others
[2013]
ZAKZPHC 73.
[68]
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) paras 64-72 (‘
RO
Cook Properties’
).
[69]
National
Director of Public Prosecutions v Komane and others
[2013]
ZAKZPHC 73 para 77.
[70]
RO
Cook Properties
para
64.
[71]
National
Director of Public Prosecutions v Parker
2006
(3) SA 198
(SCA);
[2006] 1 All SA 317
(SCA) para 18.
[72]
Mohunram
and another v National Director of Public Prosecutions and another
(Law Review Project as amicus curiae)
[2007]
ZACC 4; 2007 (4) SA 222 (CC); 2007 (6) BCLR 575 (CC).
[73]
Ibid
para 131.
[74]
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977
(3) SA 534 (A).
[75]
Union
Government (Minister of Railways) v Sykes
1913
AD 156
at 173–174.
[76]
CWH
Schmidt and H Rademeyer
Law
of Evidence
(May
2023 – Service Issue 21) para 3.2.2 at 3-28
[77]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E–635C.
[78]
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA);
[2009] 2 All SA 243
(SCA) para 26.
[79]
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another
[2008]
ZASCA 6
;
2008 (3) SA 371
(SCA);
[2008] 2 All SA 512
(SCA) para 13
[80]
National
Director of Public Prosecutions and another v Mohamed NO and others
[2002]
ZACC 9
;
2002 (4) SA 843
(CC);
2002 (9) BCLR 970
(CC) paras 14-15.
[81]
The
National Director of Public Prosecutions v Carolus and others
1999
(2) SACR 27 (C); [1999] 2 All SA 607 (C).
[82]
National
Director of Public Prosecutions v Carolus and others
2000
(1) SA 1127 (SCA); [2000] 1 All SA 302 (A).
[83]
The
National Director of Public Prosecutions v Carolus and others
1999
(2) SACR 27
(C);
[1999] 2 All SA 607
(C) at 39B-D.
[84]
National
Director of Public
Prosecutions
and another v Mohamed NO and others
[2002]
ZACC 9
;
2002 (4) SA 843
(CC);
2002 (9) BCLR 970
(CC) para 17. See
also
RO
Cook Properties
para
10.
[85]
RO
Cook Properties
para
29.
[86]
RO
Cook Properties
para
30.
[87]
National
Director of Public Prosecutions v Seevnarayan
2003
(1) SACR 260 (C); [2003] 1 All SA 240 (C).
[88]
RO
Cook Properties
para
64.
[89]
RO
Cook Properties
para
65.
[90]
RO
Cook Properties
para
66.
[91]
RO
Cook Properties
para
67.
[92]
RO
Cook Properties
paras
68-69.
[93]
RO
Cook Properties
para
69.
[94]
Ibid.
[95]
RO
Cook Properties
para
70.
[96]
RO
Cook Properties
para
71.
[97]
RO
Cook Properties
para
72.
[98]
Annexure
KMS25, Volume 16, pages 1599–1600; Volume 17, pages 1601–1603.
[99]
South
African Reserve Bank v Leathern NO and others
[2021]
ZASCA 102
;
2021 (5) SA 543
(SCA);
[2021] 4 All SA 368
(SCA)
(‘
Leathern’
).
[100]
Mazibuko
and another v National Director of Public Prosecutions
[2009]
ZASCA 52
;
2009 (6) SA
479
(SCA);
[2009] 3 All SA 548
(SCA) para 40 (‘
Mazibuko
’).
[101]
Mazibuko
paras
16-18.
[102]
Mazibuko
para
17.
[103]
RO
Cook Properties
para
28.
[104]
Mazibuko
para
21.
[105]
National
Director
of
Public
Prosecutions
v
Van
Staden and
others
[2006]
ZASCA 107
;
2007
(1)
SACR
338 (SCA);
[2007] 2 All SA 1
(SCA) para 8.
[106]
Van
der Burg and another v National Director of Public Prosecutions and
another
[2012]
ZACC 12
;
2012 (2) SACR 331
(CC);
2012 (8) BCLR 881
(CC) para 25.
[107]
Brooks
para
21.
[108]
Brooks
para
39.
[109]
Brooks
para
40.
[110]
Mohunram
and another v National Director of Public Prosecutions and another
(Law Review Project as amicus curiae)
[2007]
ZACC 4
;
2007 (4) SA 222
(CC) (‘
Mohunram’)
.
[111]
Prophet
v National Director of Public Prosecutions
[2006]
ZACC 17
;
2006 (2) SACR 525
(CC);
2007 (2) BCLR 140
(CC) (‘
Prophet’)
.
[112]
Mohunram
para
72.
[113]
Mohunram
para
72.
[114]
Mohunram
para
74.
[115]
Mohunram
paras
74-75.
[116]
Mohunram
para
92.
[117]
Mohunram
para
95.
[118]
Mohunram
para
118.
[119]
National
Director of Public Prosecutions v Komane and others
[2013]
ZAKZPHC 73.
[120]
Mohunram
para
75.
[121]
National
Director of Public Prosecutions v Salie and another
2015
(1) SACR 121
(WCC);
[2014] 2 All SA 688
(WCC) (‘
Salie
’).
[122]
Salie
para
102.
[123]
Salie
para
101.
[124]
Salie
para
120.
[125]
Salie
para
135.
[126]
Bobroff
and another v National Director of Public Prosecutions
[2021]
ZASCA 56
;
2021 (2) SACR 53
(SCA);
[2021] 3 All SA 1
(SCA)
(‘
Bobroff’)
.
[127]
Bobroff
para
38.
[128]
Bobroff
para
39.
[129]
Bobroff
para
40.
[130]
Bobroff
para
50.
[131]
Bobroff
para
59.
[132]
Bobroff
para
59.
[133]
National
Director of Public Prosecutions v Botha NO and another
[2020]
ZACC 6
;
2020 (1) SACR 599
(CC);
2020 (6) BCLR 693
(CC) (‘
Botha
’).
[134]
Botha
para
131.
[135]
Replying
affidavit of Kenneth Mark Samuel annexure KMS26, Volume 18, para 7,
page
1743.
[136]
Replying
affidavit of Kenneth Mark Samuel annexure KMS26, Volume 18, para 14,
page 1748.
[137]
Replying
affidavit of Kenneth Mark Samuel annexure KMS26, Volume 18, para 24,
page 1754.
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