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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 15738/01

DATE:2002-09-13

In the matter between

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS...................................... Applicant

and

R O COOK PROPERTIES (PTY) LTD......................................................................Respondent

JUDGMENT

WILLIS. J;

[1] The applicant makes application in terms of section 48i 1) of the Prevention of Organised Crime Act No. 121 of 1998 for a forfeiture order relating to certain immovable property being Portion No. 92 remaining extent of farm Olievenhoutpoort, Farm No. 196 situated at 247 Northumberland Road, North Riding, Randburg, Gauteng Province.

[2] The applicant obtained an order before Van Oosten J in terms of section 38(1) read together with section 74(1 Ha) of the same Act for a so-called "preservation of property" order on 22 June 2001.

[3] It is common cause that the respondent is the owner of the property in question. Mr Howard Harvey Cook who has deposed to the affidavits on behalf of the respondent, has alleged as follows:-

"The shareholding in the respondent has at all material times been and is currently as follows:

4.1 Myself 2,3 per cent :

4.2 Land Properties (Pty) Ltd (of which my wife Johanna Susanna Cook is the sole shareholder) 72,8 per cent;

4.3 Cathleen Brink 24, per cent."

The property has been mortgaged to ABSA Bank which has applied for an exclusion in so far as its interests are concerned in terms of the Act. [4] Mr Cook was born in 1931. He graduated from the University of Natal in 1953 with a Bachelor of Commerce degree and has been a life member of the Chartered Institute of Secretaries an Administrators. He is married to his wife of nearly 50 years and has two daughters, three granddaughters and one grandson. He moved to Northern Rhodesia in April 1 954 and returned to South Africa during January 1971. During his period in Northern Rhodesia (Zambia) he spent 11 years as head of the Department of Finance and Administration in the RFD Copper Mining Group, mostly at Head Office. From 1971 to 1975 he was financial director of J Walter Thompson, described by him as the largest advertising agency in South Africa at the time. From 1975 to 1977 he was managing director of Wimpy South Africa. From 1977 to 1996 he was Vice President of Louis Allen Associates Incorporated and during this period became one of the best known leadership and management consultants in South Africa whose clients included Anglo American Corporation, De Beers, Mercedes Benz, Iscor, Standard Bank, Avis and approximately five other large companies. He has also consulted extensively in the United States of America, Australia, Ghana, Zimbabwe and Botswana. Since 1 996 he has established and has been running Howard Cook Associates CC, a "leadership and management consulting organisation specialising in strategic and performance management and organisation structure". His clients over the last five years have included ATNS (that provided air traffic control over South Africa), the Civil Aviation Authorities of South Africa, the Central Government Department of Public Works, the Eastern Cape Government, the Municipalities of Ceres, Plettenberg Bay, Port Alfred and Jeffreys Bay. Mr Cook therefore would seem to be a so-called "respectable citizen in our community". [5] Two persons were kidnapped quite ruthlessly and abducted to the property in question on 26 February 2000. There they were brutally assaulted and detained for a number of days. Attempts to extort money from their families were only partially successful and this resulted in the police being alerted. Excellent police work resulted in a raid upon the property in question on 29 February 2000. When the property in question was raided, the police became suspicious that the property was being used as a brothel. It would appear that the property, quite obviously, has been used as a brothel. There is abundant evidence indeed for this fact. In addition, at the property activities that one would not be surprised to discover at a brothel, such as pornographic film shows, strip shows, topless waitressing etc. take place. So-called "business cards", pamphfets and brochures were found at the premises.

[6] Mr Kuper, who appears for the applicant, attempted to persuade me that these cards, pamphlets and brochures were offensive to the citizenry of South Africa as a whole, if one accepts that the citizens of South Africa as a whole are neither particularly prude nor excessively libertine. In my view, the examples of the cards, brochures and pamphlets etc. to be found at the premises (or which were found at the premises) are not much different from what one sees on the covers of glossy magazines at, for example, airport lounges.

[7] The property was leased to two persons by the respondent. These two persons were a Mr Govender and a Mr Holloway. The property was let as a guest house and a written agreement was concluded on 11 October 1998. At the time of the raid, Mr Cook was working in Ceres in the Western Cape. In the first affidavit which he filed in answer to the application in terms of section 30 of the Prevention of Organised Crime Act he said as follows:

"9. In terms of the lease agreement the rental was inter alia due and payable monthly in advance on or before the first day of each month. Each month I would telephone and arrange to personally collect the rental from Messrs Holloway and Govender. The time for collection was between 4 p.m. and 6 p.m. at a date pre-arranged with them.

10. When I attended the property from month to month at the arranged time for the purpose of rent collection I would go directly to the office and would have only a limited opportunity to cast my eye around to see whether the lessees were maintaining and preserving the property and generally giving effect to the lease agreement.

11. On each such visit by me the property appeared to me to be in a satisfactory condition and in apparently good order.

12. There certainly was no evidence of any illicit and/or indecent activities taking place, nor did I ever witness the showing of any pornographic material either at the reception desk or on video. There was no manifestation of signs of unlawful and sinister acts being conducted which would have raised suspicion and which would constitute an offence in terms of the Prevention of Organised Crime Act No. 11 of 1998, whether prior to the coming into effect of the said Act or pursuant thereto.

13. On isolated occasions I do inspection of the premises. On these occasions I found the premises to be cared for and in similar condition to what they were at the time the lease was concluded. The first time that I heard that there was any indication that the property was being used as a brothel was when I was so informed by Andre Neethling of the South African Police." He then goes on to say later:

"On being advised at the interview that Neethling suspected, and this was not confirmed, that the premises were being used as a brothel, I asked of him what steps I could take and if necessary could evict the tenants. He informed me there was no conclusive proof that the property was being used as a brothel and there was nothing that I should do at this stage. He elaborated on the type of person that the tenant was, indicating that they were dangerous." The allegations by Mr Cook, on behalf of the respondent, that he asked Superintendent Neethling what steps he could take and that Superintendent Neethling informed him that there was no conclusive proof that the property was being used as a brothel and there was nothing that he could do at that stage, were denied by Sergeant Neethling. It seems to me that there is nothing inherently improbable in this version put forward by

Mr Cook on behalf of the respondent. In other words, if one is to adopt the classic test set out in Piascon-Evans Paint v Var Riebeeck Paints 1 984 (3) SA 634 (A) at 635C, the allegations or denials of the respondent are not so farfetched or clearlv untenable that the court is justified in rejecting them merely or the papers. It is furthermore significant that, after all, prostitution is a notoriously noctural activity. Not for nothing are prostitutes often euphemistically referred to as "ladies of the night". Not for nothing is the expression "sleeping with t person" often used as a euphemism for having sexua intercourse with that person. It is significant that almost all the reports by police officers as to the goings on at the property ir question were of visits that were made at night. 3] There was some debate between Mr Subel and Mr Kuper as tc whether the ordinary rule in the Piascon-Evans case (supra, should apply, namely the confirmation of the famous decisior is Stelienbosch Farmers Winery Ltd v Stellenvale Winery (Pty, Ltd 1 957 (4) SA 234 (C) at 235E-G:

"... where there is a dispute as to the fact that fina interdicts should only be granted in notice of motior proceedings if the facts as stated by the responded together with the admitted facts in the applicant's affidavits justify such an order ... where it is clear thai facts, although not formally admitted, cannot be deniec they must be regarded as admitted."

[9] The debate arose because Mr Subel submitted that it was the respondent in these proceedings whose version should prevail. Mr Kuper, on the other hand, submitted that it was the applicant in terms of counter-application proceedings being brought in terms of section 52 of the Prevention of Organised Crime Act. By reason of what follows, it is in my view unnecessary to decide this issue or to refer the matter to oral evidence.

[10J Mr Kuper, very fairly and in my view correctly, conceded that the offences of kidnapping, assault and extortion provided for in Schedule 1 to the Prevention of Organised Crime Act, could not justify this particular application. As will appear later, I think he made the correct concession but for the wrong reasons. He concentrated instead on the provisions of Section 20(1) of the Sexual Offences Act, No. 3 of 1957 which is included in Schedule 1 of the Prevention of Organised Crime Act. He submitted that the property in question had been used by the persons who "knowingly live wholly or in part on earnings of prostitution" (vide subsection 20(1 )(a) of the Sexual Offences Act).

[11] In my view, although it is clear that prostitution was indeed taking place at the property in question, there is no satisfactory evidence before the court to indicate that the lessees of the property were living wholly or in part of the earnings of prostitution. It is significant that it is clear that there has been no prosecution whatsoever of these persons or anyone else of living wholly or in part on the earnings of prostitution at the property in question this despite the fact that the raid took place in February 2000 and that the property was placed under a preservation order in June 2001. It is in my view equally probable that a highly lucrative business in the sale of drinks, meals, entry fees, the showing or pornographic movies, the serving of people by topless waitresses etcetera could be maintained by drawing people to the premises, admittedly with there being an incentive for them to have opportunities to make use of prostitutes. Indeed, the evidence before the court strongly suggests that the amounts paid to the prostitutes were a matter of negotiation between the visitors and the prostitutes concerned. I disagree, with respect, with Mr Kuper's submission that the evidence shows that the lessees, as a matter of probability, derived a proportion of the fees paid to the prostitutes. Certainly, it is clear that the fee was negotiable as between prostitutes and the visitors to the premises and it is quite obvious that no one but the two of them would have any idea as to the amount of money that passed hands. Accordingly, in my view, the case in so far as it rests on subsection 20(1 Ha) of the Sexual Offences Act No. 3 of 1957 must fail.

[12] Mr Kuper furthermore relied on the provisions of subsection 20(1 He) which reads as follows:

"Any person who in public or in private in any way assists in bringing about or receives any consideration for the commission by any person of any act or indecency with another person shall be guilty of an offence."

Mr Kuper immediately, and once again fairly and properly, conceded that there was no question of there having been any public indecency taking place on the property in question. He submitted that clearly there were acts of private indecency. He was referring to the pamphlets, the brochures, the topless waitresses, the pornographic films and so on. I cannot see how in a society where our Constitution enshrines the rights to dignity, privacy, freedom of opinion, freedom of expression and sexual orientation can regard any sexual acts or sexually related acts between consenting adults in private as private indecency, It would be an entirely different matter if, for example, children or mentally disabled persons were involved. We in contemporary South Africa do not seek windows into other persons' souls. There has not been the slightest suggestion that children or persons suffering from mental disabilities were in any way involved here in the activities that took place on the premises. Accordingly, in my view, the applicant's entire reliance on section 20(1) of the Sexual Offences Act must fail. This, it would seem to me, would put an end to the matter. [13] Nevertheless, in case I am wrong, I wish to deal with a further aspect upon which, in my view, this matter can be decided. It is necessary to have regard to the relevant sections of the Prevention of Organised Crime Act. Section 48(1) reads as follows;

"If a preservation of property order (i.e. an order of the kind obtained before Van Oosten J on 2 June 2001) is in force, the National Director may apply to the High Court for an order forfeiting to the State all or any of the property that is the subject of the preservation of property order." Section 50(1) of the Act provides as follows:

"The High Court shall, subject to section 52, make an order applied for under section 48(1) if the court finds on a balance of probabilities that the property concerned -

(a) is an instrumentality of an offence referred to in
Schedule 1; or

(b) is the proceeds of unlawful activities.
The relevant portions of section 52 provide as follows:

"(1) 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.

(2A) The High Court may make an order under subsection (1) if it finds on a balance of probabilities that the applicant for such an order had acquired the interest concerned legally and (a) neither knew or had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence referred to in Schedule 1; ..." The references to section 48(3) and 49(1) relate to applications by persons for the exclusion of their interests in the property from the aforesaid forfeiture order. [14]  The words "instrumentality of an offence" have been defined in the Act as meaning "any property which is concerned in the commission or suspected commission of an offence whether within the Republic or elsewhere". [15]  The constitutionality of chapter 6 of the Act which includes the provisions under which the so-called preservation order was made in terms of section 38 and the provisions in terms of which this application is made, has elsewhere been challenged. That issue has not yet been decided upon.See National Director of Public Prosecutions v Mahomed NO. [2002] ZACC 9; 2002 (4) SA 843 ICC) paras 35, 37 and 39 thereof. Obviously I shall assume for purposes of this particular judgment that chapter 6 is constitutionally valid. Mr Kuper conceded that the definition of "instrumentality of an offence" does "not have a precise meaning". He also submitted that this definition did not relate simply to persons who were perpetrators or who were in any way guilty of the offence in question. He submitted that this was so by reason of the provisions of section 52 read with section 50. These provisions, so he submitted, enable a person potentially affected by the order to make an application excluding certain interests in the property in question provided they can show either that they had acquired the interest concerned legally or that they "neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence referred to in Schedule 1;" He submitted that it was available to a person in the position of the respondent. In my respectful view this submission is entirely untenable. Section 48 read together with section 50 provides for the forfeiture of property. I cannot see how property can be forfeited and how one can at the same time retain ownership therein. It is rather like having a sale in execution and reserving rights of ownership for the execution debtor. Clearly, in my view, section 52 has to apply to persons who have an interest less than ownership in the property in question which it is sought to forfeit. Obvious examples would be persons who have residual interest, such as a mortgage bond over immovable property or a lien, pledge etc. in respect of movable property. Clearly their interests deserve to be protected and that is precisely why the provisions of section 52 would read as they do. For such persons, obviously, if a forfeiture order is made, it is possible to exclude certain interests in that property in order to protect them. It is not, in my view, logically or legally possible to on the one hand forfeit rights over property and on the other hand to retain rights of ownership in such property. [16] The submission of Mr Kuper that the words "instrumentality of an offence" do not relate to perpetrators or persons who are in any way guilty of the offence, will in my view lead to absurd results. Perhaps I may illustrate with the following example:

1. While I am away on holiday, a vicious rape and murder takes place on the property wherein my home is to be found. Am I to be liable for forfeiture of that property because this vicious rape and murder took place?

2. A bank leases a vehicle to John Smith. The vehicle is hijacked and taken from John Smith and thereafter used for conveying dangerous drugs. Is this property to be forfeited such that the bank loses its interest?

3. An intruder breaks into the home of a wealthy collector of medieval armour. The intruder uses an immensely valuable sword which the collector has had in his family for hundreds of years to decapitate a visitor who is staying at the collector's home. Is the sword to be forfeited to the State?

It is trite that absurd consequences are not presumed to have

been intended by the Legislature. [17] It was said in the well-known case Bhyat v Commissioner for immigration 1923 AD 1 5 at 19:

"The cardinal rule of construction of a Statute is to endeavour to arrive at the intention of the law-giver from the language employed in the enactment ... In construing the provision an Act of Parliament the plain meaning of its language must be adopted unless it lead to some absurdity, inconsistency, hardship or anomaly which from a consideration of the enactment as a whole a court of law is satisfied the Legislature could not have intended." This extract has been quoted over and over again in a number of different judgments, most recently by the Supreme Court of Appeal in the case of Poswa v MEC for Economic Affairs Environment andTourism 2001 (3) SA582(SCA) where Schutz JA giving the judgment of the court said at para 11:

"The effect of this formulation is that the court does not impose its notion of what is absurd on the Legislator's judgment as to what is fitting but uses absurdity as a means of divining what the Legislator could not have intended and therefore did not intend, thus arriving at what it did actually intend." [18] Reservations as to the wide meaning contended for by Mr Kuper were also expressed in the case of National Director of Public Prosecutions v Patterson 2001 (2) SACR 665 (C). [ 19] Section 25 of the Constitution of South Africa provides that "no one may be deprived of property except in terms of law of general application and no law may permit arbitrary deprivation underlie an open and democratic society based on human

dignity, equality and freedom". And also:

"(2} When interpreting any legislation and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and object of the Bill of Rights."

I cannot see anything more arbitrary than for property to be

confiscated from persons when they have not been guilty of a

serious offence in connection therewith. [20] In the English case Sherras v De Rutzen [1895] 1 QB 918 at 921 Wright J said as follows:

"There is a presumption that mens rea, an evil intention or knowledge of the wrongfulness of the act is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the Statute creating the offence or by the subject matter with which it deals and both must be considered."

This judgment was approved by the Privy Council in the case of Lim Chin Aik v The Queen [1963] AC 160 at 165 where the

following was said:

"That was expressly approved by the Judicial Committee in Srinivas Mail Bairoiiya v The King Emperor 11947) ILR 26 Pat 460 at 468."

They continue to say in the Privy Council decision:

"It is sufficient for the appellant here to rely on the words of Lord Goddard CJ in Brend v Wood and referred to in the Srinivas case:

'It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that unless a statute, either clearly or by necessary implication rules out mens res as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has his guilt in mind."

This case was referred to with approval by O'Regan J in the case of S v Coetzee and Others [1997] ZACC 2; 1997 (3) SA 527 (CC). It is true that this judgment is a minority judgment. Nevertheless, I do not read this case as indicating that in any way the principles enunciated by O'Regan J were disagreed with by the majority of the court in so far as the presumption against exclusion of mens rea is concerned. I propose to quote extensively from this judgment. I do so because I believe frankly, and with great respect, that it is difficult to improve upon the lucidity with which she expresses herself on this issue. I quote starting at [1621:

"[162] I turn then to a consideration of s 11. The general principle of our common law is that criminal liability arises only when there has been unlawful conduct and blameworthiness or fault {the actus res and mens rea). This principle is ordinarily expressed in the Latin maxims actus non facit reum nisi mens sit rea and nulla poena sine culpa. At common law, the fault requirement is generally met by proof of intent [dolus) in one of its recognised forms, and, in rare circumstances, by the

objective requirement of negligence {culpa). (See Burchell & Milton Principles of Criminal Law {Juta, Cape Town, 1991} at 71-5; Snyman Criminal Law 2nd ed (Butterworths, Durban, 1989) at 5-9; De Wet and Swanepoel Strafreg4th ed (Butterworths, Durban, 1 985) at 103. As Kentridge AJ has mentioned in paragraph [94] of his judgment, the requirement of fault or culpability is an important part of criminal liability in our law. This requirement is not an incidental aspect of our law relating to crime and punishment, it lies at its heart. The State's right to punish criminal conduct rests on the notion that culpable criminal conduct is blameworthy and merits punishment. This principle 4nas been acknowledged by our Courts on countless occasions. For example, in R v Wunderlich 191 TPD 1118, De Villiers JP held:

'There is no doubt that as a general rule a person is not criminally liable unless he has what is called mens rea. This is usually expressed by the maxim: actus non facit reum nisi mens sit rea. This is a sound rule, for a person is not to be subjected to the stigma and other consequences of a crime unless he had what is sometimes called a guilty mind. And from this it follows that in general a person is not criminally liable (At 1121; cited with approval in R v Weinberg 1939 AD 71 at 8; Ex Parte Minister of Justice: in re R v Nanabhai 1939 AD 47 at 49).

[163] In the last hundred years, however, the Legislature has enacted many provisions which stipulate that criminal liability will arise upon proof that a person has committed or omitted to do, a particular act. These provisions contain either no mental element and are referred to as offences of absolute liability or provide the accused with a defence of due diligence, or something similar, in which case they are referred to as offences of strict liability (see Snyman, cited above, at 242-9; Burchell & Milton, cited above, at 315-18). The most important justification for these new forms of criminal offence is that their purpose is to ensure compliance with regulatory norms which may not otherwise be observed. Until 1994, because of the doctrine of Parliamentary sovereignty, it was plain that the Courts had no choice but to enforce these criminal provisions. [164] However, such criminal liability has been criticised by academic writers in South Africa (see, for example, Burchell and Milton, cited above, at 317). It was also disapproved by the Viljoen Commission in its report on The Penal System of the Republic of South Africa (1 976) at para 5.1.2.8:

'In spite of the recognition in certain legal systems of the so-called strict liability offences, this Commission remains impenitent and adamant in expressing the view that strict liability offences cannot be justified in criminal law. If the "offender" unwittingly commits an act which  is prohibited by criminal law under circumstances which totally absolve him of any blame, what is the object in punishing him or even penalising him? There would, in the Commission's view, be no sense in doing so'. [165] Repugnance to the notion of criminal liability without fault is evidenced too in the reluctance of courts to interpret statutory provisions which contain no express mens rea requirement as not requiring mens rea. In S v Arenstein 1967 (3) SA 366 (A) at 381 D-E, Van Winsen AJA held as follows:

'In view of such general maximums as nulla poena sine culpa and actus non facit reum nisi mens sit rea, the Legislature, in the absence of clear and convincing indications to the contrary in the enactment in question, is presumed to have intended that violations of statutory prohibitions would not be punishable in the absence of mens rea in some degree or other.' (See, also, amongst other decisions, R v H 1944 AD 11 at 15; SvBernardus 1965 (3) SA 287 (A) at 296F; S v Oberholzer 1971 (4) SA 602 (A) at 610H-611 A). 1166] The principle that fault is a prerequisite for criminal liability is also present in the law of other jurisdictions.

It has been repeatedly recognised as a fundamental principle of English law. In Harding v Price [1 948] 1 KB 695 at 700[1948J 1 All ER 283 at 284E), for example, Lord Goddard CJ held:

'The general rule applicable to criminal cases is actus non facit reum nisi mens sit rea, and I venture to repeat what I said in Brend v Wood 11 946] 6 TLR 462 at 463}: "It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."'. [167] In the leading American decision, Morisette v United States [1952] USSC 8; 342 US 246 (1952) at 50, Jackson J held that:

'The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.'

[168] Other jurisdictions, too, have experienced the growth of legislatively imposed strict and absolute liability. Their Courts, too, have displayed hesitance in interpreting statutory provisions as imposing absolute or even strict liability. In England, the Courts have taken the view that there is a presumption that mens rea is always a requirement of a criminal offence, although that presumption may be defeated by the language of a provision. In the case of Sherras v De Rutzen [1895] 1 QB 918 at 921, the Court held that:

'There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.'

Renewed vigour has been afforded to this approach by its recent restatement in a series of decisions by the House of Lords and the Privy Council. (See Urn Chin Aik v R [1963] AC 160 (PC) at 172 ([1963] 1 All ER 223); R v Warner 11969] AC 256 |HL (E)) at 271-2 ([1 968] All ER 356 at 371-2); Sweet v Parsley [19701 AC 132 (HL (E)J at 1 63 ([1 969] 1 All ER 347); Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1984] All ER 503 (PC) at 507-8.) Despite the frequent restatements of the rule in Sherras'oase, however, clear guidelines both as to the circumstances in which a court may interpret a statute as not requiring mens rea, and as to the nature of the fault requirement that will be implied when a court is of the view that the Legislature did not intend to oust a fault requirement, remain elusive.

[169] The approach in Sherras'case has been adopted in several of the countries of the Commonwealth. In Australia, in addition to the presumption against strict liability, the courts have developed a defence of reasonable mistake of fact. Thus an accused, who could show that he or she held an honest and reasonable belief in the existence of circumstances, which if true would render the accused innocent of the charge, will be acquitted ....

[170] The New Zealand Courts, too, have been reluctant to accept that Parliament intends an absolute liability in the absence of an express statement to that effect. In so doing, they have considered the approach adopted in Canada, as well as that adopted in England and Australia."

[21] It is clear to me that the provisions relating to forfeiture in the Prevention of Organised Crime Act are penal in nature despite the fact that section 37 provides that the proceedings in chapter 6 are civil and not criminal. Mr Kuper agreed with this view. Accordingly, in my view, it is wholly appropriate to interpret the provisions of section 48 read together with 50 and 52 and then the definition of "instrumentality of an offence" as requiring that a person may not be deprived of property unless the person owning that property had a guilty state of mind in

connection with the particular offence.

Counsel for both sides agreed that the matter merited the services of two counsel and that costs should follow the result. Certain costs were reserved. It seems plain that the reserved costs arose from an application for a postponement made by the applicant. Accordingly, in my view it is entirely appropriate that it is the applicant that should pay the reserved costs. The following order is made:

The application for the forfeiture of the immovable property in terms of section 48(1) of the Prevention of Organised Crime Act No. 11 of 1998 is dismissed with costs, which costs are to include the costs occasioned by the employment of two counsel and the costs reserved to date.

ON BEHALF OF APPLICANT:ADV M D KUPER SC

ADV R J CHINNER

Instructed by: The State Attorney

ON BEHALF OF RESPONDENT: ADV A SUBEL SC

ADV J R PETER
Instructed by : Kallmeyer & Strime

DATE OF JUDGMENT:13 SEPTEMBER 2002

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