Northern Cape High Court (Kimberly)
Case: Qui v National Director of Public Prosecutions Judgment: 4 February 2022
Keywords: Forfeiture orders – Evidence of proceeds of unlawful activity and instrumentality of offence – Prevention of Organised Crime Act 121 of 1998 (POCA), ss 3, 4, 37(2), 50 – Financial Intelligence Centre Act 38 of 2001 (FICA), s 64
Mr Johnson Jr was driving a VW Polo when he and his cousin were stopped at a roadblock and cash amounts of R2 430 000 and R18 240 were found in a locked briefcase and plastic bag, respectively. Johnson Jr conveyed to the police that he was paid to transport the locked briefcase from Pretoria to Cape Town and did not know what the contents of the briefcase was.
Johnson Jr and his cousin (Yanfang Qui) were charged with money laundering, but the charges were struck from the roll. The NDPP successfully applied to have the Polo and total cash amount forfeited to the state.
Ms Qui, the owner of the Polo, opposed the forfeiture application and laid claim to the amount of R2 430 000. She asserted that Chinese nationals had won the seized cash from various casinos in SA and had entrusted the money to her for purposes of purchasing oysters for export.
A single judge found that the cash seized was the proceeds of a contravention of s 64 of the FIC Act and that the vehicle was an instrumentality of an offence. Qui appealed to the full Bench.
Lever J considers that forfeiture applications are civil proceedings and the onus is discharged on a balance of probabilities, the fact that the NDPP has mixed and matched the concepts of instrumentality of an offence and proceeds of unlawful activities, and that, at the time of the roadblock, s 64 of FICA referred to transactions with accountable institutions. He finds that the facts do not establish the underlying unlawful activity necessary to establish that money laundering took place, and that the NDPP has not established that the cash sum is the proceeds of any unlawful activity or that the Polo is an instrumentality of an offence in s 50(1)(a) of POCA (–, –).
The appeal succeeds and the order of the court a quo is set aside and is replaced with one dismissing the forfeiture application. The NDPP is liable for the costs of the application and the appeal.