Form a filing sheet for south eastern cape local division judgment



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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT


PARTIES:
NDPP APPLICANT

and

S N MLAHLEKI FIRST RESPONDENT

X MLAHLEKI SECOND RESPONDENT


  • Case Number: 2353/2006

  • High Court: EASTERN CAPE DIVISION

  • DATE HEARD: 26-11-2007…………….


DATE DELIVERED:29-9-2008
JUDGE(S): NEPGEN J……
LEGAL REPRESENTATIVES –
Appearances:

  • For the Applicant (s): H VAN DER LINDE SC…………

  • for the Respondent(s): P DAUBERMANN…………………….

Instructing attorneys:


CASE INFORMATION -

  • Nature of proceedings : Civil Matter

  • Topic: ………………………

  • Key Words:


IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)
Case No: 2353/2006

In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant

And

SIGNORIA NOSISI MLAHLEKI First Respondent

XOLANI MLAHLEKI Second Respondent

JUDGMENT
NEPGEN, J:

[l] On 13 June 2006 the National Director of Public Prosecutions (NDPP). applied for and obtained a preservation of property order in terms of Section 38 of the Prevention of Organised Crime Act, No 121 of 1998 (POCA). The property which was subject to this order was described therein as follows;

1. Erf 42007 Ibhayi also known as 24 Yoyo Street, Zwide, Port Elizabeth;



2. Furniture at 24 Yoyo Street, Zwide,

3. Proceeds in First National Bank account number 74056018945;

4. Proceeds in First National Bank account number 62054590437;

5. A black Ford Bantam 1300 Explorer motor vehicle with registration number BHG 416 EC in the Second Respondent's possession;

6. A sum of R 44 689.58 in cash seized at 24 Yoyo Street, Zwide, Port Elizabeth and kept under Mount Road SAP 13/778/2006;

7. A sum of R 5 838.00 in cash seized at 119 Koyana Street, Zwide, Port

Elizabeth and kept under Mount Road SAP 13/1125/2003: and

8. Bail in the amount of R 9 000.00 held by the Clerk of the Court, Port Elizabeth Magistrates' Court under case numbers 27/3294, 3295 & 3296/2006 under receipt numbers D 98229, D982230 and D 982231 ("the property"),"

[2] The NDPP in due course brought an application under Section 48 (1) of POCA that the property referred to in the preservation order be declared forfeit to the State, This application was opposed by first respondent, but only in respect of the immovable property at 24 Yoyo Street, Zwide, Port Elizabeth (for convenience hereinafter referred to as the house); the furniture in the house; and the money in the two First National Bank accounts. The basis of first respondent's opposition was a denial that the property was an instrumentality of an offence and a denial that such property constituted the proceeds of unlawful activities. Eventually, on 17 October 2006, an order was made by agreement that the Ford Bantam motor vehicle; the sum of R 5 838.00 seized at 119 Koyana Street, Zwide. Port Elizabeth; and the bail in the amount of R 9 000-00 be forfeited to the State. The order further contained me usual provisions in orders of this nature, but in respect of the property to which first respondent, laid claim as well as the sum of R 44 682,88 seized at the house, the matter was postponed for the hearing of oral evidence "on the question whether same are liable to forfeiture in terms of Section 50 (1) of the Act".
[3] The matter eventually came before me for the hearing of oral evidence. At such hearing the applicant called a number of witnesses, whereas first respondent was the only witness who testified on her behalf. Apart from Steenkamp, the investigation shift manager at the Boardwalk Casino in Port Elizabeth, who testified in respect of gambling activities conducted on a card belonging to first respondent, the applicant's witnesses were police officials. Two of these witnesses, namely Inspector Qingana and Constable Lawu, testified with regard to a number of controlled sales involving mandrax tablets which took place during the period March 2006 to May 2006, although Qingana also testified with regard to events which occurred before that. The. other police witness was Captain Kapp, who gave evidence in respect of alleged drug dealing which occurred at the house over a number of years,

[4] First respondent purchased the house from the Fort Elizabeth Municipality on,8 May 1989 for a price of R 5 825.10. First respondent resides in the house, as do other members of her family. According to the police evidence a number of drug related offences had been committed at the house over a number of years. Qingana testified with regard to an incident on 8 May 1997. He bad no personal knowledge of this matter, but was able to obtain details thereof from official police records. From the information available to me it appears that on that occassion 70 mandrax tablets were found at the house and subsequently two persons were charged, with and, according, to Qingana, convicted of dealing in mandrax. The next specific incident of which mention was made occurred on 27 October 2003. According to Qingana he received information from a reliable source that there were drugs being stored at the house. He immediately followed up this information and went to the house. There was some delay in gaining access to the house because the security door was not open. After having waited for some time Qingana climbed onto a boundary wall of the property and eventually observed two plastic bags being thrown from the direction of the house. He went to these bags. He opened one and saw money inside. He thought that the second bag contained drugs. He picked up both bags and proceeded to the police vehicle. He opened the boot in order to place the bags therein, but at that stage first respondent called him and told him that he should not take her things, claiming to be the owner thereof, She told Qingana that this money had been obtained in connection with a club to which she belonged. He testified that she told him she got the money from "mafele", which he said was like a stokvel. It transpired that both bags were full of money. A total amount of R 128 020.00 was seized, which apparently included money that first respondent had in her handbag. The notes were sent for forensic investigation and it was determined that there were traces of methaqualone on the money. The house


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