CC CASE NO:
SCA CASE NO: 220/2011 WCHC CASE NO: A236/2009
In the application for leave to appeal of:
HILDA VAN DER BURG First Applicant
EDWARD VAN DER BURG Second Applicant
and
NATIONAL DIRECTOR OF PROSECUTIONS Respondent
RESPONDENT’S ANSWER IN TERMS OF RULE 19(4)
I, the undersigned
NICOLAAS JOHANNES VAN ZYL do hereby make oath and say the following:
1. I am an adult, male advocate and a Deputy Director of Public Prosecutions of the Republic of South Africa and I have been duly appointed as such in terms of section 15 of the National Prosecuting Authority Act, 32 of 1998 (the NPA Act).
2. The facts deposed to herein are within my personal knowledge unless the contrary is stated or the context indicates otherwise. These facts are, to the best of my knowledge and belief, both true and correct.
3. I am duly authorised to make this affidavit on behalf of the Respondent (the NDPP).
4. On 22 December 2008, the Western Cape High Court made an order declaring certain property forfeited to the State in terms of section 50 of the Prevention of Organised Crime Act 121 of 1998 (POCA).
5. On 16 March 2011, a Full Bench of the Western Cape High Court dismissed the applicants’ appeal against that order.
6. On 30 June 2011, the Supreme Court of Appeal refused the applicants’
application for further leave to appeal.
7. The applicants have now made application to this Court, purportedly in terms of Rule 19, on substantially identical grounds to those raised in the application for leave to appeal to the SCA. The NDPP opposes this application.
8. The applicants seek leave to appeal against the refusal by the SCA of leave to appeal against the order of the Full Bench of the High Court.1 They do
1 Notice of Motion: para 1.
not allege that the procedure followed by the SCA was in any way constitutionally flawed.
9. I respectfully submit that this application is fundamentally misconceived, as in this matter there can be no appeal against the refusal of leave by the Supreme Court of Appeal.2
10. I submit that the application falls to be dismissed on that ground alone. I submit further that if this application is to be construed as an application for leave to appeal against the judgment of the Full Bench of the Western Cape High Court, then in any event it ought not to be granted, as it is not in the interests of justice because there is no reasonable prospect of success.
THE ISSUES
11. In this affidavit, I first set out the facts, and then address each of the issues raised by the applicants. They are:
11.1 whether the property concerned was an instrumentality of an offence;
11.2 whether that offence was an offence as contemplated in Chapter 6 of POCA; and
11.3 whether forfeiture would be disproportionate.
2 Mabaso v Law Society, Northern Provinces, and Another 2005 (2) SA 117 (CC) para [18].
THE FACTS
The property
12. The applicants are married in community of property. They are the registered owners of erf 161658, Athlone, which is situated at 25 A Birdwood Street, Athlone.
13. The applicants bought the property on 24 November 2000 for R169 000. A mortgage bond for R135 000 was registered against the property in favour of the Standard Bank of South Africa.
14. At the hearing of the application for forfeiture, the parties accepted that during 2006, the market value of the property was approximately R350 000.
15. In 2006, the Standard Bank of South Africa obtained judgment against the applicants for payment of R139 538.43 plus interest, and an order declaring the property executable for the capital and interest.
16. The property is situated in a dense residential area. A primary school, St Raphael’s Primary School, is approximately 30 metres from the property.
The St Mary’s Roman Catholic Church is next to the school, and approximately 100 metres from the property. There are other educational institutions and places of worship within a 500 metre radius.
The use of the property
17. The applicants bought the property in November 2000. They have, from the very outset, unlawfully used the property as a shebeen. When the first applicant applied in February 2002 for a liquor licence, she stated that she had conducted the business of a “tavern” there for the past two years.
18. The people living in the area have repeatedly complained about the fact that the property is being used as a shebeen. The complaints have been led by Mrs K Essa, an immediate neighbour, who has written over 50 letters to various government departments in an attempt to bring an end to this unlawful use of the property.
19. Mrs Essa described the conduct of the shebeen as follows:
19.1 People enter the premises and leave with liquor that was purchased there. This occurs throughout the day and night.
19.2 Patrons sit and drink liquor in the carport on the premises and in the backyard of the premises. There are benches specifically put up for these patrons to consume their liquor.
19.3 On many occasions, minors purchase liquor from the premises and consume liquor on the premises.
19.4 The shebeen generates an unendurable noise.
19.5 There are regular physical fights between the patrons, and the applicants often join the fracas.
19.6 Extremely vulgar and abusive language is commonplace on the premises.
19.7 Some of the patrons become so drunk that they collapse in the road.
19.8 Patrons hurl bottles at each other, and also throw bottles against the walls surrounding Mrs Essa’s property. They often fling empty liquor bottles into her yard.
19.9 Patrons urinate in full view of the public, in the yard of the premises, in the streets, and against the boundary wall.
19.10 Patrons trespass on her property in order to gain access to the shebeen.
20. Mrs Essa does not have the means to institute civil litigation against the applicants. Given the nature of the residential area, it may be safely assumed that other residents are in the same position.
Attempts by the SAPS to stop the unlawful use of the property
21. The South African Police Services have made repeated attempts to persuade or compel the applicants to cease this activity. The police undertook 52 actions at the property in an attempt to stop the unlawful sale of liquor. These included the actions set out below.
22. Searches, seizures and arrests were carried out on the following dates:
22.1 2 November 2001;
22.2 3 May 2002;
22.3 9 August 2002;
22.4 24 August 2002;
22.5 6 September 2002;
22.6 9 October 2002;
22.7 18 December 2002;
22.8 15 March 2003;
22.9 12 August 2003;
22.10 9 January 2004;
22.11 13 August 2004;
22.12 11 September 2004;
22.13 10 June 2005; and
22.14 16 June 2005.
23. Some of these interventions resulted in convictions,3 and others did not. In each instance, there is no dispute that liquor was being unlawfully sold on the premises. I submit that the question is not whether a particular person was or was not convicted of an offence in respect of each of those incidents, but whether it was shown that liquor was unlawfully being sold on the premises – in other words, that the property was being used for the purposes of selling liquor unlawfully. On the latter question, there is no dispute.
24. The police have given the applicants seventeen written warnings to cease the unlawful selling of liquor, on the following dates: 23 April 2002; 1 May 2002; 22 October 2002; 10 January 2003; 2 September 2003; 11 November 2003; 18 November 2003; 21 November 2003; 17 December 2003;
3 The convictions resulted in the payment of a fine.
6 January 2004; 23 January 2004; 21 April 2004; 28 June 2004;
8 June 2005; 28 June 2005; 8 November 2005; and 1 February 2006.
25. The reason why the SAPS in Athlone have not conducted further search and seizure operations at the premises is a lack of resources.
26. Conventional law enforcement strategies failed to have any effect on the applicants, who continued regardless in unashamed contempt for the law.
(This was specifically alleged by the NDPP, and not denied by the applicants.)
27. The NDPP then made application for, and obtained, a POCA preservation order in respect of the property.
28. Even after the preservation order had been obtained, when the applicants must have realised that they now faced the risk of having their property forfeited, they did not cease using it to commit the offence. Further arrests, searches, and seizures were carried out on
28.1 5 August 2006;
28.2 9 August 2006;
28.3 28 September 2006; and
28.4 21 November 2006.
29. The obtaining of the preservation order thus had no impact at all on the unlawful use of the property to conduct a shebeen. This too is common cause.
30. The applicants know that there is no prospect that any of their neighbours will be able to bring civil proceedings in order to interdict them from continuing their unlawful activities. The only “deterrent” is the actions of the police. The applicants find it more profitable to continue conducting their unlawful activities, and to pay a fine when they or their “runners” are arrested and convicted, than to stop the unlawful activities.
31. From the applicants’ point of view, crime pays. They will continue to engage in this unlawful activity for so long as it continues to pay.
The nature of the property
32. The following facts in relation to the property are common cause:
32.1 The applicants have constructed illegal modifications to the building on the property, which were specifically effected in order to facilitate the illegal sale and consumption of alcohol on the premises.
32.2 The business of the shebeen is conducted from the house, where liquor is sold and stored as well.
32.3 Liquor is stored in the bedrooms and in the kitchen from where it is sold.
32.4 Liquor is usually ordered from the main house, and sales are conducted from both the main house and the illegal structure.
32.5 Empty crates and bottles are stored in the illegal structure.
32.6 The illegal consumption of liquor occurs in the illegal structure.
33. Against that factual background, I address the questions of law which the applicants seek to raise in a further appeal.
I: THE PROPERTY IS AN INSTRUMENTALITY OF THE OFFENCE
34. In Prophet,4 this Court held that one of the tests for determining whether immovable property is the instrumentality of an offence committed there, is whether the property was “appointed, arranged, organised, furnished and adapted or equipped to enable or facilitate” the illegal activities.
35. The Supreme Court of Appeal had in that case applied a more elaborate series of tests, which were summarised by this Court5 as follows: in each instance, I apply the test in question to the facts of this case:
4 Prophet v National Director of Public Prosecutions 2007 (6) SA 169 (CC) para [57].
5 At para [22].
(a) Whether the use of the property in the offence was deliberate and planned or merely incidental and fortuitous: In this instance, it is plainly deliberate and planned.
(b) Whether the property was important to the success of the illegal activity: The property is essential to the illegal activity.
It is the place where the liquor is stored, the place at which the
“patrons” purchase the liquor, and the place at which they consume the liquor.
(c) The period for which the property was illegally used and the spatial extent of its use: The property was illegally used from 2000 until 2006 when the forfeiture application was brought;
and no doubt thereafter. The spatial extent of the use is considerable, as many parts of the house are used for this purpose.
(d) Whether its illegal use was an isolated event or had been repeated: It was a continuing offence for a period of more than six years.
(e) Whether the purpose of acquiring, maintaining or using the property was to carry out the offence: The property had been
used as a shebeen from the very inception of the acquisition by the applicants.
36. Under these circumstances, I submit that there is no reasonable prospect that this Court will not conclude, on appeal, that the property is an instrumentality of the offence.
II: THE OFFENCE IS AN OFFENCE CONTEMPLATED IN CHAPTER 6 OF POCA
37. The applicants contend that the offence of illegal dealing of liquor is not an offence contemplated in section 50 of POCA, because POCA is limited in its ambit to gang-related or similar forms of criminal activity, and not criminal conduct conducted by individuals.
38. Forfeiture has repeatedly been found to be competent in matters which have not involved gang-related or similar activities, but have involved parties acting on their own or with a number of others.
39. Prophet was a case in which the individual was acting on his own in manufacturing drugs. This Court found that the property was an instrumentality of an offence as contemplated in POCA.
40. In Cook Properties,6 the SCA held that the Act is “designed to reach far beyond „organised crime‟ … the Act clearly applies to cases of individual wrongdoing”.
41. In National Director of Public Prosecutions v Van Staden and Others,7 the SCA held that driving under the influence of intoxicating liquor is an offence falling within item 33 of Schedule 1 and section 50 of POCA.
42. In National Director of Public Prosecutions v Vermaak,8 the SCA again held that the individual wrongdoing consisting of driving under the influence of intoxicating liquor falls squarely within the terms of Item 33 of Schedule 1 and section 50 of POCA.
43. In Mohunram,9 Van Heerden AJ (with whom four other Justices concurred) found that the provisions of POCA “are designed to reach far beyond organised crime and also apply to cases of individual wrongdoing”.10 Moseneke DCJ (with Mokgoro J and Nkabinde J concurring) did not reach that question. He said that he was unable to hold without more that the
6 National Director of Public Prosecutions v R O Cook Properties (Pty) Ltd; National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another; National Director of Public Prosecutions v Seevenarayan 2004 (2) SACR 208 (SCA) para [65].
7 2007 (1) SACR 338 (SCA).
8 2008 (1) SACR 157 (SCA) at para [8].
9 Mohunram and another v National Director of Public Prosecutions and another (Law Review Project as amicus curiae) 2007 (4) SA 222 (CC)
10 Paras [113] and [114].
interpretation advanced in that case by the amicus, namely that section 50 of POCA does not apply to offences which do not constitute organised crime, was without merit.
44. I submit that there is no reasonable prospect that this Court will find, on the facts of this case, that POCA is not of application.
III: FORFEITURE IS NOT DISPROPORTIONATE
45. Although the concept of proportionality is not expressly mentioned in POCA, this Court has held that proportionality is a governing principle which imposes limits on how the powers granted under POCA may be exercised.11
46. The starting point in the proportionality exercise is that the proposed forfeiture must give effect to the purposes of POCA.
47. While civil forfeiture occasionally may have a punitive consequence, its purpose is remedial and not punitive.12 Forfeiture aims primarily at crippling or inhibiting criminal activity, and it is in that light that the discretion to order
11 Prophet v National Director of Public Prosecutions 2007 (6) SA 169 (CC) paras [58] – [69].
12 Prophet para [58].
it ought to be exercised. Forfeiture is likely to have its greatest remedial effect where crime has become a business.13
48. The present matter fits squarely within the parameters described by Nugent JA in Vermaak. The applicants have carried on a course of criminal conduct for more than six years. Crime is their business. The NDPP stated in terms, and the applicants did not dispute, that “conventional law enforcement strategies have failed to have any effect on the respondents, who continue regardless in unashamed contempt for the law”. The forfeiture is aimed primarily at crippling or inhibiting the criminal activity.
49. Even after the High Court had first made a provisional restraint order, and then a final restraint order, the applicants continued to engage in their criminal activities. The reason for this is quite simple: as long as they continue to hold their property and use it for this purpose, crime pays.
50. They continue in this after now almost 60 actions have been taken by the South African Police Services in an attempt to prevent this use of the property.
51. The NDPP therefore did not seek an impermissible “topping up” of the penalties that are provided by the Liquor Act. The NDPP sought to achieve the purpose of POCA, namely to cripple or inhibit the continuing criminal
13 National Director of Public Prosecutions v Vermaak 2008 (1) SACR 157 (SCA) para [10], [11].
activity, in circumstances where no other viable method was available. The NDPP sought to achieve the intended remedial purpose of the Act.
52. The NDPP does not submit that a forfeiture order is appropriate in all or even most cases of unlawful dealing in liquor. The NDPP accepts that it is only in extreme cases of unlawful dealing in liquor that forfeiture of immovable property will be appropriate. This is such an extreme case:
52.1 From the time that they acquired the property, the applicants have used it for the illegal activity.
52.2 They have done so for a sustained period of more than six years.
52.3 They have done so in the face of almost 60 actions by the South African Police Services including multiple and repeated arrests, searches, seizures, and service of formal warnings to desist.
52.4 They have continued to do so even after an interim preservation order was granted, and then after a final preservation order was granted.
52.5 They still assert in effect that they are entitled to continue to use their property for this unlawful purpose, as long as they are prepared to pay the fines which are imposed upon them and their “runners”.
They show an unashamed and arrogant disregard for the law.
52.6 The effect of the activities on their neighbours is very severe.
52.7 There is no other appropriate remedy available, because the neighbours are not financially able to bring interdict proceedings to put a stop to this activity.
52.8 The police have made substantial and sustained efforts to put an end to the activity through the convention criminal processes, but without success. A lack of resources prevents the police from investing even further resources in an attempt to stop this activity.
53. In this application, the applicants rely on the fact that they and their children live in the property in question. I submit that this cannot constitute a bar to the forfeiture of the property, particularly where the applicants show quite clearly that they intend to continue using the property for their unlawful activities.
54. The applicants have never alleged that they or their children will be rendered homeless if the property is forfeited. Their sole complaint in this regard, in their answering affidavit, was “A forfeiture order will have the effect of depriving our children of their inheritance”.
55. I submit that on the particular facts of this case, forfeiture of the property is proportionate. Forfeiture is the only means by which the applicants’
sustained and continuing disregard of the law and of the rights of others can
be effectively dealt with. It is the only means available for ending the scenario created and exploited by the applicants, namely that crime does pay. If forfeiture does not take place, the crime will continue, and it will continue to pay.
CONCLUSION
56. I respectfully submit that the contemplated appeal has no reasonable prospect of success.
57. The NDPP accordingly respectfully submits that the application for leave to appeal should be dismissed with costs.
_______________________________
NICOLAAS JOHANNES VAN ZYL
I certify that on this day of July 2011, the deponent signed the affidavit in my presence and declared that he knows and understands its contents, that he has no
objection to taking the prescribed oath and that he considers the oath to be binding on his conscience.
____________________
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