The National Director of Public Prosecutions vs. Moyane - (31 May 2022)

Onus is on the prosecution to prove on a balance of probabilities that it was entitled to a forfeiture order

Criminal

The issue before the SCA concerned the question of whether a Volkswagen 364 Scirocco motor vehicle with registration number FGC 937 MP (the vehicle) represented ‘the proceeds of unlawful activities’ and/or was ‘an instrumentality of an offence’ within the meaning of the Prevention of Organised Crime Act, 1998 and so liable to forfeiture under Section 50(1)(a) of the Act.

The vehicle was first registered in the name of Moyane and shortly thereafter in the name of one Albert Mathews Sithole (Sithole), who was the second respondent in the court of first instance.

In terms of Section 50 of the Act, the onus was on the National Director of Public Prosecutions (NDPP) to prove on a balance of probabilities that it was entitled to a forfeiture order. Accordingly, the SCA held that, the proceeds must in some way be the consequences of unlawful activity.

The evidence adduced by the NDPP in support of its case established that the vehicle was the proceeds of crime. Hence, the case for the NDPP was that the vehicle was acquired through money laundering. In addition, the SCA held that it was not satisfied that a real, genuine and bona fide dispute of fact existed in this matter. Thus, Moyane’s averments regarding the source of funds for the purchase of the vehicle and his explanation why, shortly after its acquisition, he caused it to be registered in the name of Sithole were of general nature and failed substantially to address the facts he disputed. The SCA found that he failed to produce documents to support his claims that the monies that were paid into the dealership’s account on his instruction were from legitimate sources.

The NDPP had made out a case for the relief it sought, and that from the totality of the facts, there was an inescapable inference that the funds were derived from unlawful activities and that the vehicle was thus shown to have been the proceeds of crime. Moreover, the fact that shortly after its acquisition, it was registered in the name of Sithole showed that the whole purpose was to conceal or disguise its ownership. Appeal allowed.

Tags : UNLAWFUL ACTIVITY PROOF ONUS