THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 113/08

SAMUEL AFRICA MAZIBUKO
1st Appellant
ANNA JEANNETTE MAZIBUKO
2nd Appellant

and

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

Neutral citation:
Mazibuko v The National Director of Public Prosecutions
(113/08) [2009] ZASCA 52 (26 May 2009)

Coram:
MTHIYANE, NUGENT, CACHALIA JJA, HURT
and BOSIELO AJJA

Heard:
12 MARCH 2009

Delivered:
26 MAY 2009

Summary:
Prevention of Organised Crime Act – forfeiture of
immovable property – property owned by spouses
married in community of property – whether interest
of one spouse capable of being excluded.

THE ORDER APPEARS FROM THE JUDGMENT OF NUGENT JA AT PARA [59].
__________________________________________________________________________

ORDER
__________________________________________________________________________
On appeal from: KwaZulu-Natal High Court, Pietermaritzburg
(Nicholson J sitting as court of first instance).

The appeal by the first appellant fails. The appeal by the second appellant
succeeds. The order of the court below is substituted by the following
orders:

1.
The property known as Portion 11 (of 4) of the farm Spitskop 92,
Registration Division HT, province of KwaZulu-Natal, is declared
forfeit to the state in terms of s 50(1) of the Prevention of Organised
Crime Act 121 of 1998.
2.
Upon the disposal of the property as contemplated by s 57(1) of the
Act the curator bonis shall pay to the respondent one half of the net
proceeds of the property. The said proceeds shall be the separate
property of the second respondent and excluded from the joint estate
of the respondents.
3.
The respondents are ordered to pay the costs.

__________________________________________________________________________

JUDGMENT
_________________________________________________________________________

BOSIELO AJA:
Introduction
[1] On 2 November 2005 the respondent obtained a preservation order in
terms of s 38(2) of the Prevention of Organised Crime Act, 121 of 1998
(POCA)1 from the KwaZulu-Natal High Court, Durban, in respect of a farm
known as portion 11 (of 4) of the farm Spitskop 92, registration HT,
province of KwaZulu-Natal (‘the farm’) and a Venter trailer bearing
registration letters and numbers RCY 126 GP (‘the trailer’). The farm is
jointly owned by the two appellants who are married in community of
property.

[2] On 14 December 2007, Nicholson J granted a forfeiture order in terms
of s 50(1)(a) of POCA2 in respect of the farm on the basis that the farm was
an instrumentality of an offence, namely the unlawful manufacture of drugs.
The appellants are appealing against that order with the leave of the court a
quo.3

1 S 38(2): ‘The High Court shall make an order referred to in subsection (1) if there are reasonable grounds
to believe that the property concerned-
(a)
is an instrumentality of an offence referred to in Schedule 1;
(b)
is the proceeds of unlawful activities; or
(c)
is property associated with terrorist and related activities’.
2 S 50(1): ‘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’.
3 The judgment is reported as National Director of Public Prosecutions v Mazibuko and Others 2008 (2)
SACR 611 (N).

The facts
Respondent’s version
[3] As the facts of this case are to a large extent common cause, I will
only refer to the most salient facts which serve to elucidate this judgment.
On 22 June 2004 Inspector Van Heerden of the South African Police Service
(SAPS) discovered a huge amount of methaqualone at the farm. In addition,
he found an assortment of equipment which included some pots, gas
cylinders, heaters, rakes, laboratory equipment, gloves and masks. In
addition some anthrillic acid, o-toluidine and some finished product of
methaqualone were also found at the farm. Inspector Moripe, a forensic
analyst attached to the Chemistry Unit, State Forensic Laboratory asserted
that all these are used in the manufacture or synthesis of methaqualone.
Furthermore, according to Moripe, methaqualone is listed in Part III of
Schedule 2, o-toluidine in Part I of Schedule 1 and anthrillic acid in Part I of
Schedule 1 of the Drugs and Drug Trafficking Act 140 of 1992. Both
anthrallic acid and o-toluidine are essential in the manufacture of
methaqualone.

Appellant’s version
[4] The first appellant denied that he knew or had any reasonable grounds
to suspect that such illegal activities were carried on at the farm. He asserted
that he purchased the farm lawfully (which fact was not disputed by the
respondent) and further that he purchased it to conduct some lawful farming
operations (which fact was disputed by the respondent).

[5] The first appellant stated further that he had sub-let the farm to one
Thanyani Justice Makhunga for the grazing of his cattle and the manufacture

of fertilizer. It is common cause that Makhunga never brought his cattle to
the farm, nor did he commence to manufacture fertilizer. The first appellant
stated that he stayed some 70km away from this farm with his family. He
only visited the farm once in a month or once in two months. The last time
he had visited the farm before the drugs were discovered was at the end of
May 2004.

[6] The second appellant did not testify in opposition to the application
for the forfeiture as the respondent had conceded that they had no evidence
to prove either that she had knowledge or reasonable grounds to suspect that
the farm was used as an instrumentality of an offence. In essence both the
first and second appellant relied on the ‘innocent owner’ defence as
contemplated by s 52(2A)(a) of POCA.4

[7] I interpose to state that on appeal two crucial concessions were made
on behalf of the two appellants. First, that the farm was in fact used as an
instrumentality of an offence, and secondly, that the requirement of
proportionality was in respondent’s favour. What remained therefore was for
the appellants to prove, on a balance of probabilities, that they neither knew
nor had reasonable grounds to suspect that the farm was used as an
instrumentality of an offence in terms of s 52(2A) of POCA.

4 S 52(2A): ‘The High Court may make an order under subsection (1), in relation to the forfeiture of an
instrumentality of an offence referred to in Schedule 1 or property associated with terrorist and related
activities, if it finds on a balance of probabilities that the applicant for the order had acquired the interest
concerned legally, and –
(a) 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 or property associated with terrorist and related
activities’.

Judgment of the court a quo
[8] After analysing the evidence, the learned judge found the first
appellant’s version to be grossly improbable. He found that the illegal
activities which were carried out at the farm were of such a nature and
magnitude that, if the first appellant had acted like a reasonably diligent and
vigilant owner, he would have known of their existence and, unless he was a
party thereto, would have stopped them. Furthermore, the learned judge
made adverse credibility findings against the first appellant. In fact he found
that the first appellant ‘told a most improbable story badly’. Based on this
reasoning, the learned judge concluded that the first appellant knew of the
unlawful manufacture of drugs at the farm.

[9] It is clear from the judgment of the court below that the second
appellant’s position gave the learned judge serious problems, mainly
because it was conceded by the respondent that she was an ‘innocent owner’.
However, what made the problem rather intractable was that, by virtue of
her marriage in community of property to the first appellant, she had no
interest which could be separated from the joint estate. This is because her
interest in the farm formed an undivided and indivisible part of their joint
estate which, the learned judge correctly described as a species of what is
known as ‘tied ownership’. Based on the finding that it was legally
impossible if not impracticable to excise her interest from the joint estate,
innocent though she is, the learned judge declared the proceeds of the farm
forfeit to the state.

Appellant’s submissions
[10] At the hearing of the appeal, Mr Engelbrecht SC appearing for both
appellants raised two crisp issues for argument. The first issue was whether
the court below was correct in its credibility findings against the first
appellant. The second was whether the court below was correct in declaring
the second appellant’s undivided and vested interest in the farm forfeit to the
state.

[11] Regarding the first issue, Mr Engelbrecht submitted that the court
below erred in finding that the first appellant knew of the illegal activities at
the farm as the evidence is clear that he did not visit his farm regularly and
further that no evidence was led that, at the time when he had visited the
farm, the substances and equipment found by Van Heerden and his
colleagues, were present on the farm. He described this as a big lacuna in the
respondent’s case.

[12] However, when it was pointed out to him that it had been conceded on
behalf of the two applicants at the hearing of the application that the farm
was used as an instrumentality of an offence and further that proportionality
was in the respondent’s favour, Mr Engelbrecht capitulated. Quite
importantly, Mr Engelbrecht further conceded that, based on R v Dhlumayo
1948 (2) SA 677 (A), he could not argue against the adverse credibility
findings made by the court below against the first appellant. No further
submissions were made on behalf of the first appellant.

[13] Concerning the second appellant’s case, Mr Engelbrecht argued that,
because the respondent admitted that she had no knowledge of the illegal

activities which took place at the farm which made her an ‘innocent owner’,
it was unfair to declare her interest in the farm forfeit to the state. He argued
further that the court below erred in finding as a basis for its decision, that it
could not make an order excluding the second appellant’s interest in the
property from the forfeiture order as it would be impossible to give effect to
such an order. In conclusion, he submitted that as a court considering
possible forfeiture of property has a discretion in terms of s 52(1) to exclude
certain interests from forfeiture, Nicholson J should have exercised his
discretion in favour of the second appellant as she is an innocent owner.

Respondent’s submissions
[14] Mr Govindasamy SC, appearing for the respondent together with Ms
Naidoo and Mr Molelle, argued firstly that the evidence against the first
appellant was overwhelming and further that the judgment of the court
below was unassailable.

[15] Concerning the issue of the second appellant’s interest in the farm, he
submitted that it was not feasible that her interest in the farm could be
exempted from the order of forfeiture. He based this submission on the fact
that the appellants are married to each other in community of property in
terms whereof they are both joint owners of the farm. As a result, she merely
holds an undivided and indivisible interest in the farm. In developing his
argument further, Mr Govindasamy submitted that allowing her to retain a
half share of the property would actually defeat the purpose of POCA, as the
first appellant, would, by virtue of the marriage in community of property,
be automatically entitled to a half-share in her share of the farm. This, so he
submitted, would be tantamount to allowing the first appellant to enjoy the

proceeds of his illegal activities which is inimical to the spirit and purpose of
POCA. To avoid this situation, Mr Govindasamy argued that the second
appellant’s remedy lies in her right to claim against the joint estate in the
event where she can prove that she suffered some loss as a result of the first
appellant’s unlawful conduct.

Discussion
[16] It is common cause that the criminal operations that were going on at
the farm were extensive. That this was a factory for the manufacture of
drugs admits of no doubt. Quite importantly even the first appellant was
unable to dispute this fact. It follows in my view, that if indeed the first
appellant did not have actual knowledge of these operations as he claimed, it
is because he did not act like a reasonably diligent and vigilant property
owner as envisaged by s 1(3)(a) and (b) of POCA.5

[17] The first appellant cannot abdicate responsibility over his farm. Given
the magnitude of the illegal activities at the farm, there is no way in which
the first appellant could not realistically have become aware of what was
happening on the farm. The activities on the farm were carried out brazenly
and without any attempt to hide them. The conclusion that the first appellant
was either complicit in these illegal activities or that he deliberately turned a
blind eye to them is justified.

5 S 1(3): ‘For the purposes of this Act a person ought reasonably to have known or suspected a fact if the
conclusions that he or she ought to have reached are those which would have been reached by a reasonably
diligent and viligant person having both-
(a)
the general knowledge, skill, training and experience that may reasonably be expected of a person in
his or her position; and
(b)
the general knowledge, skill, training and experience that he or she in fact has’.

[18] As the owners of the property, the appellants had the responsibility to
ensure that the farm was not used for unlawful purposes. The first appellant
explained that he had sub-let the farm to Makhunga. However, on his own
version, he showed no interest in supervising the farm. Worse still he
showed no interest in what Makhunga was doing at the farm. It makes
perfect sense that where a property owner allows his or her property to be
used to conduct criminal activities, the law should take its course. As this
Court observed in NDPP v R O Cook Properties (Pty) Ltd, NDPP v 37
Gillespie Street Durban (Pty) Ltd; NDPP v Seevnarayan6 at para [28].
‘. . . We agree that property owners cannot be supine. In particular, we endorse the
notion that the State is constitutionally permitted to use forfeiture, in addition to the
criminal law, to induce members of the public to act vigilantly in relation to goods they
own or possess so as to inhibit crime. In a constitutional State law-abiding property-
owners and possessors must, where reasonably possible, take steps to discourage
criminal conduct and to refrain from implicating themselves or their possessions in its
ambit. And the State is entitled to use criminal sanctions and civil forfeitures to
encourage this. Here constitutional principle recognises individual moral agency and
encourages citizens to embrace the responsibilities that flow from it.’
I am in respectful agreement with this dictum.

[19] The appellants having conceded the two cardinal issues of
instrumentality of an offence and proportionality, coupled with the
exposition set out above, I am of the view that the order of forfeiture against
the first appellant by the court below is correct.

[20] I now turn to deal with the second appellant’s case. I must confess
that I find the position of the second appellant rather complex and highly

6 2004 (2) SACR 208; 2004 (8) BCLR 844; [2004] 2 All SA 491 (SCA) para 28.

controversial. There are two aspects which compound her position. Firstly
it is because the respondent had accepted that she had no knowledge of the
illegal activities which were conducted at the farm. Undoubtedly she is an
innocent owner. However what compounded the problem further is the fact
that the farm in issue formed part of the joint estate between the appellants
and that it was therefore, impracticable to divide and exclude her interest
from forfeiture.

[21] In terms of s 52(1) of POCA7 a court before which an application for
forfeiture is made has a discretion whether to grant the order or not. If an
applicant satisfies the requirements set out in s 52(2A), the court may
exclude his or her interest in the property from being declared forfeit to the
State. In terms of the section such an applicant has to prove that he or she
acquired the property lawfully and further that he or she did not know or did
not have reasonable grounds to suspect that the property was used as an
instrumentality of an offence referred to in Schedule 1. As the respondent
had accepted that the second appellant is an ‘innocent owner’ I am of the
view that the forfeiture of her interest brings the constitutionality of such an
order to the fore.

[22] It is generally acknowledged that the effects of forfeiture are
draconian and potentially invasive of the rights of people to their properties.
There is an ever-present threat of a serious conflict between the right to
property as provided for in s 25(1) of the Constitution and an order for the

7 S 52(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’.

forfeiture of property under s 50(1) of POCA which can result in far-
reaching consequences if not managed with care. I agree with Nkabinde J in
Prophet v National Director of Public Prosecutions8 where she expressed
the following caution:
‘While the purpose and object of Ch 6 must be considered when a forfeiture order is
sought, one should be mindful of the fact that unrestrained application of Ch 6 may
violate constitutional rights, in particular the protection against arbitrary deprivation of
property particularly within the meaning of s 25(1) of the Constitution, which requires
that “no law may permit arbitrary deprivation of property”. In First National Bank of SA
Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First
National Bank of SA Ltd t/a Wesbank v Minister of Finance (“FNB”)9 this Court held
that “arbitrary” in s 25(1) means that the law allowing for the deprivation does not
provide sufficient reason for the deprivation or allows deprivation that is procedurally
unfair. The Court said:
“(F)or the validity of such deprivation, there must be an appropriate relationship between means and ends,
between the sacrifice the individual is asked to make and the public purpose this is intended to serve. It is
one that is not limited to an enquiry into mere rationality, but is less strict than a full and exacting
proportionality examination.”’
In my view, the second appellant’s position required such care and
circumspection in maintaining a judicious balance between the purpose of
POCA and the rights of the second appellant who is an ‘innocent owner’.
With respect it seems to me that the learned judge failed to strike such a
balance.

[23] Given the fact that the second appellant is innocent of any
wrongdoing, the forfeiture of her interest in the farm, in my view, raises a
number of critical constitutional questions, i.e. how would forfeiture of
her interest advance the main purposes of POCA? What public interest

8 2007 (6) SA 169 (CC) para 61.
9 2002 (4) SA 768 (CC); 2002 (7) BCLR 702 para 100.

would the forfeiture of her interest in the farm serve? How is the forfeiture
of her interest in the farm rationally connected to the purpose to be
attained by POCA? What justification is there for depriving her of her
interest in the farm? It seems that these issues were not properly
considered by the court below. Clearly the deprivation of her interest in
the farm is constitutionally indefensible and therefore arbitrary as there is
no sufficient reason for the deprivation as stated in First National Bank v
Minister of Finance at para 100 where Ackerman J set out the criteria for
sufficient reason to be as follows:
‘(a)
It is to be determined by evaluating the relationship between means employed,
namely the deprivation in question and ends sought to be achieved, namely the
purpose of the law in question.
(b)
A complexity of relationships has to be considered.
(c)
In evaluating the deprivation in question, regard must be had to the relationship
between the purpose for the deprivation and the person whose property is affected.
(d)
In addition, regard must be had to the relationship between the purpose of the
deprivation and the nature of the property as well as the extent of the deprivation in
respect of such property.
(e)
Generally speaking, where the property in question is ownership of land or a
corporeal moveable, a more compelling purpose will have to be established in order
for the depriving law to constitute sufficient reason for the deprivation than in the case
when the property is something different and the property right something less
extensive. This judgment is not concerned at all with incorporeal property.
(f)
Generally speaking, when the deprivation in question embraces all the incidents
of ownership, the purpose for the deprivation will have to be more compelling than
when the deprivation embraces only some incidents of ownership and those incidents
only partially.
(g)
Depending on such interplay between variable means and ends, the nature of
the property in question and the extent of its deprivation, there may be circumstances
when sufficient reason is established by, in effect, no more than a mere rational

relationship between means and ends; in others this might only be established by a
proportionality evaluation closer to that required by s 36(1) of the Constitution.
(h)
Whether there is sufficient reason to warrant the deprivation is a matter to be
decided on all the relevant facts of each particular case, always bearing in mind that
the enquiry is concerned with “arbitrary” in relation to the deprivation of property
under s 25.’
Regrettably, I find that the deprivation of the second appellant’s interest in
the farm does not pass the test enunciated in First National Bank.

[24] It is trite that the right to property is a fundamental right deeply
ensconced in the Bill of Rights. Section 25(1) of the Constitution10
prohibits, in clear terms, any arbitrary deprivation of property. On the
other hand s 7(2) of the Constitution11 obliges the state to respect, protect,
promote and fulfil the rights in the Bill of Rights. In addition s 39(1) of
the Constitution requires our courts, when interpreting the Bill of Rights,
to promote the values that underlie an open and democratic society based
on human dignity, equality and freedom. Undoubtedly this places a duty
on every court which has to consider possible forfeiture of property to be
careful not to make orders which may exceed the proper and legitimate
objectives striven for by POCA. A failure to do so may result in orders
which may be unduly invasive of the rights of innocent owners and which
may amount to an abuse which is not constitutionally defensible. This
salutary approach was enunciated as follows in NDPP v R O Cook
Properties in para 29:
‘We therefore agree that the Act requires property owners to exercise responsibility for
their property and to account for their stewardship of it in relation to its possible criminal

10 S 25(1): ‘No one may be deprived of property except in terms of law of general application, and no law
may permit arbitrary deprivation of property’.
11 S 7(2): ‘The state must respect, protect, promote and fulfil the rights in the Bill of Rights’.

utilisation. But the pursuit of those statutory objectives cannot exceed what is
constitutionally permissible. Forfeitures that do not rationally advance the inter-related
purposes of ch 6 are unconstitutional. Deprivations going beyond those that remove
incentives, deter the use of property in crime, eliminate or incapacitate the means by
which crime may be committed and at the same time advance the ends of justice are, in
our view, not contemplated by or permitted under the Act.’ (My emphasis.)

[25] I have no doubt that, based on the admitted fact that the second
appellant is an ‘innocent owner’, who has committed no wrong, whether
intentional or negligent, the forfeiture order in so far as it affects her does
not pass constitutional muster. It offends society’s notions of what is fair and
just. What is worse it goes beyond the core purpose of POCA. It is clear
from the judgment of the court below that the learned judge was mindful of
the fact that the forfeiture of the whole farm might be offensive to the
constitutional values of equality and dignity and quite importantly might
also breach a fundamental principle of our criminal law that the innocent
should not be punished. This notwithstanding, the learned judge proceeded
to declare the proceeds of the farm, including the second appellant’s interest,
forfeit to the state. It appears to me that to deprive second appellant of her
interest constitutes a breach of the constitutional principle of equality. (See
Mohunram and Another v National Director of Public Prosecutions (Law
Review Project as Amicus Curiae).12

[26] In declining to exclude the second appellant’s interest in the farm
from forfeiture, the learned judge in the court below was of the view that it
would deprive the respondent of its redress as stipulated in the statute or

12 2007 (2) SACR 145 (CC) para 146.

common law. To my mind, the learned judge misconstrued the real and main
purpose underpinning POCA. The primary purpose of POCA is to prevent
organised crime. In cases where property is used as an instrumentality of an
offence, this can be achieved by having such property declared forfeit to the
State. The intention underpinning such forfeiture is not necessarily to punish
the offender, but to deprive him or her of the instrument used to facilitate or
commit the offence. Such a forfeiture is intended mainly to cripple or
paralyse the illegal activities which are carried on. Once this has happened,
the objects of POCA will have been satisfied.

[27] However, the pertinent question now remains: once the property is
declared forfeit to the state, what is its ultimate fate? As POCA was never
intended to enrich the state, it follows that the state cannot own the farm.
The state through the curator bonis is obliged by s 57(1)(c) of POCA to
‘dispose of property forfeited under s 56(2) by sale or any other means and
deposit the proceeds of the sale or disposition into the Account.’ Once the
farm has been sold by the curator bonis, nothing prevents him from paying
to the second appellant her half share from such proceeds once all legitimate
claims against the farm have been settled. This is because the forfeiture is
aimed at the instrumentality and not the proceeds. Self-evidently such
proceeds can never be equated with an instrumentality of an offence.

[28] Given the peculiar circumstances of this case I do not agree that the
order sought by the second appellant is a legal impossibility as the
respondent’s counsel submitted. What the court below should have done was
to grant the order of forfeiture of the farm subject to the second appellant’s
entitlement to a half share of the proceeds upon sale of the farm. To my

mind this is legally permissible because the forfeiture order is primarily
against the farm as an instrumentality of an offence and not the proceeds
from the sale of the farm. Undoubtedly such an order would have struck the
delicate balance between the second appellant’s interest and the main
purposes of POCA.

[29] Although there is not much judicial authority for the above
proposition, there is some considerable support from some academic writers
that even during the existence of the marriage in community of property,
parties can be allowed to keep separate property which does not form part of
the joint estate eg donations between spouses, gifts and bequests made to
one spouse with the express condition that such be excluded from the joint
estate; damages for non-patrimonial loss resulting from delict committed by
a third party or one spouse against the other; instances where one spouse has
despoiled the other spouse of a thing over which such spouse had peaceful
and undisturbed possession, property excluded by ante nuptial-contract, and
certain life insurance policies effected by the husband in favour of his wife
or ceded by him to her, or effected by the wife on her own life or that of her
husband, as also the proceeds of such policies.13

[30] More importantly, the Matrimonial Property Act 88 of 1984 makes
provision for separate property to be owned separately by one spouse to

13 HR Hahlo, The South African Law of Husband and Wife, 5ed (1985) pp 164-169; Schäfer, Family Law
Service Issue 49, p 20(1); Dale Hutchison, Belinda Van Heerden, DP Visser and CG Van der Merwe,
Wille’s Principles of South African Law, 8ed; Van den Berg v Van den Berg 2003 (6) SA 229 (T)) 232G-
233D.

the exclusion of the other.14 That the Matrimonial Property Act has
ushered in drastic changes regarding the inviolability of the joint estate
was acknowledged by Moseneke DCJ in Van der Merwe v Road Accident
Fund (Women’s Legal Centre Trust as Amicus Curiae)15 where he stated
the following at para 30:

‘. . . On 1 November 1984, chs 2 and 3 of the Act jettisoned much of the
gender differentiation found in the common law of marriage in community of
property. The legislation made drastic inroads into the theoretical unity and
inviolability of the joint estate and recast the common law of marriage irreversibly . .
.’.
It should be clear from the above exposition that the learned judge could
have made an order that the second appellant’s share of the proceeds after
the sale of the farm be paid to her to form her separate property. To my
mind, this would have ensured that the forfeiture order does not go beyond
the legitimate limits of the objects of POCA. Quite importantly such an
order would not compromise the main objects of POCA.

[31] Based on the exposition set out above, I am of the view that there is
no legal impediment to making an order that the second appellant be paid
her half share of the proceeds after the sale of the farm as a failure to do
so would inevitably result in punishing the innocent party. In order to
avoid her half share falling back into the joint estate in respect whereof

14 S 17(1)(a): ‘A spouse married in community of property shall not without the written consent of the other
spouse institute legal proceedings against another person or defend legal proceedings instituted by other
person, except legal proceedings-
(a) in respect of his separate property;
. . . .’
S 18: ‘Notwithstanding the fact that a spouse is married in community of property-
(a) any amount recovered by him by way of damages, other than damages for patrimonial loss, by reason of
a delict committed against him, does not fall into the joint estate but becomes his separate property;
. . . .’
15 2006 (4) SA 230 (CC).

the first appellant remains a joint owner, her half share of the nett
proceeds from the sale of the farm will have to be paid into her separate
account thus making it her separate property. To my mind, this will ensure
that the second appellant who is an innocent owner is not unduly punished
by a deprivation of her interest where there is no legal or rational
justification.

[32] There is a further comment I wish to make about the order of the court
below. Instead of making an order for the forfeiture of the property in terms
of s 50(1) of POCA, Nicholson J made an order ‘declaring forfeit to the
State the proceeds of the property . . .’. It is clear that this order is erroneous
and was made per incuriam. Chapter 6 of POCA which is the one relevant to
these proceedings is headed ‘Civil Recovery of Property’. Moreover, all the
relevant sections ie ss 38 to 60 under Chapter 6 refer to property or interest
in property and not the proceeds of the property. It follows that the order by
the learned judge has to be corrected.

[33] I now have to deal with the question of costs. The fact that the first
appellant has failed whilst the second appellant succeeded in the appeal
makes it difficult to apportion the costs of the appeal. However it does not
appear to me to be fair and just to mulct the first appellant with all the costs
of appeal, particularly as he has already had to pay the costs of the
application to exclude his interest from forfeiture (albeit that such costs are
to be paid from the joint estate). To my mind fairness and justice require that
each party should bear its own costs.

[34] In the circumstances, I would make the following order:
1.
The appeal by the first appellant is dismissed.
2.
The appeal by the second appellant succeeds to the extent that the
order by the court below is varied to read as follows:
2.1
An order is hereby granted in terms of s 50(1) of the Prevention of
Organised Crime Act 121 of 1998 (‘the Act’) declaring forfeit to the State the
whole of the farm belonging to the first and second appellants described as:
‘Portion 11 (of 4) of Spitskop No 92 Registration Division HT, Province of
KwaZulu Natal in extent 124, 2096 (one two four thousand comma two zero
nine six) hectares’, subject to the following conditions:
(a)
The curator bonis appointed in terms of the preservation order made
on 2 November 2005 shall continue to act in such capacity.
(b)
The curator bonis shall, as at the date on which the forfeiture order
shall take effect, be empowered to perform the following functions:
(i)
to dispose of the property by sale or other means;
(ii)
to settle all legitimate claims against the property, including the
balance, if any, on the mortgage bond registered over the immovable
property in favour of one Anthony Perreira Jones and Susara Johanna
Elizabeth Jones held under bond No 17313/03;
(iii)
to pay one half of the balance of the nett proceeds of the farm to the
second appellant. The said proceeds shall constitute the second appellant’s
separate property which shall be excluded from the parties’ joint estate;
(iv)
to pay the balance of the proceeds into the Criminal Asset Recovery
Account.
3.
The Registrar of the KwaZulu Natal High Court, Durban is directed to
publish a notice of this order in the Government Gazette as soon as possible.

4.
Each party is to pay its own costs.

________________________
L O BOSIELO
ACTING JUDGE OF APPEAL

NUGENT JA (MTHIYANE, CACHALIA and HURT AJA CONCURRING)

[35] I do not think the judgment of my colleague Bosielo AJA adequately
addresses what I consider to be the central difficulty that presents itself in
this case and I am also not in full agreement with the order that he proposes.
For those reasons I set out briefly the reasons that found my conclusion.

[36] The National Director of Public Prosecutions (NDPP) applied to the
court below under s 48 of the Prevention of Organised Crime Act 121 of
1998 (POCA) for an order forfeiting to the state portion 11 of the farm
Spitskop 92 (I will refer to it as the farm). The farm was owned by the
appellants, who are married in community of property.

[37] Section 50(1) authorised that court, ‘subject to section 52’, to make a
forfeiture order if it found, as a matter of probability, that the farm was an
‘instrumentality’ of an offence referred to in Schedule 1.  In this case it was
not disputed that the farm was an instrumentality of the offence of
manufacturing drugs in contravention of s 3 of the Drugs and Drug
Trafficking Act 140 of 1992 (a Schedule 1 offence). It was also not in
dispute that a forfeiture order would (in ordinary circumstances) be

proportionate to the purposes of the statute and thus constitutionally
permissible.16 The court accordingly granted a forfeiture order.

[38] There is an observation that I need to make concerning the form of the
order before I turn to the issues that arise in this appeal. The court below
(Nicholson J) declared forfeit to the state ‘the proceeds’ of the farm and not
the farm itself. (Further orders authorised the curator bonis to dispose of the
farm; deduct his fees and expenses; pay the balance outstanding on a
mortgage bond; and pay the proceeds into the Criminal Asset Recovery
Account.17) A forfeiture order in those terms was not strictly correct. The
‘instrumentality’ of the offence that was liable to forfeiture was the farm. If
a forfeiture order was to be made it ought to have ordered forfeiture of the
farm and not its proceeds (which were not the instrumentality of the
offence). Once such an order is made then by operation of law the farm vests
in the curator bonis on behalf of the state,18 who is required to dispose of the
property, and to deposit the proceeds to the Account.19 (I think it is implicit
that the moneys so deposited accrue to the state.) To that extent the order of
forfeiture falls to be corrected.

[39] Apart from the terms in which the order was granted, as I mentioned
above, Nicholson J cannot be faulted for granting a forfeiture order and the
appeal is not directed to his order in that respect. The appeal is confined to

16 National Director of Public Prosecutions v R O Cook Properties (Pty) Ltd; National Director of Public
Prosecutions v 37 Gillespie Street Durban (Pty) Ltd; National Director of Public Prosecutions v
Seevnarayan 2004 (2) SACR 208 (SCA) para 74; Prophet v National Director of Public Prosecutions 2006
(1) SA 38 (SCA) paras 30 and 37; Prophet v National Director of Public Prosecutions 2007 (6) SA 169
(CC) paras 61 and 62.
17 Established by s 63 of POCA.
18 Section 56(2).
19 Section 57(1).

his order to exclude from the order the appellants’ interests in the property.
(Needless to say, the effect of such an order would have been to nullify the
forfeiture.)

[40] Section 52 of POCA provides what has loosely been called an
‘innocent owner’ defence to a person whose interests are affected by a
forfeiture order (though that is a misnomer because, as pointed out in Cook
Properties, ‘innocence [of the offence] is not enough’).20 That section
permits a court to exclude ‘from the operation of [a forfeiture order]’ what
are called ‘certain interests’ in the property concerned, if it is shown by the
applicant for such an exclusion that the interest was legally acquired, and
that he or she ‘neither knew nor had reasonable grounds to suspect’ that the
property in which the interest is held is an instrumentality of the offence.21

[41] Both appellants applied for orders excluding from the operation of the
forfeiture order such interests as they each had in the farm. The court below
heard oral evidence on the question whether the appellants either knew or
had reasonable grounds to suspect that the farm was an instrumentality of
the offence.

[42] It found that Mr Mazibuko must have been aware that the farm was
being used for the manufacture of drugs. On that basis Mr Mazibuko did not
fall within the terms of the section and the court below declined to exclude
his interest. The appeal by Mr Mazibuko was confined to challenging that
factual finding. I do not think it is necessary to repeat the evidence that was

20 Para 24.
21 Section 52(2A).

before the learned judge on that issue, some of which appears from the
judgment of my colleague. It is sufficient to say that there was ample
evidence to support that finding and the appeal by Mr Mazibuko must fail.

[43] The position with regard to Mrs Mazibuko is different and it is to that
issue that most of the argument in this appeal was directed. It is not in
dispute that Mrs Mazibuko was neither aware, nor had grounds to suspect,
that the property was an instrumentality of an offence and that she fell within
the provisions of the section. The court thus had a discretion to order the
exclusion of her interest. There can be no question that she would have
ordinarily been entitled to such an order, because there were simply no
grounds for refusing it. The effect of a refusal would have been to deprive
her of property arbitrarily in conflict with s 25(1) of the Bill of Rights (see
the discussion on that issue in National Director of Public Prosecutions v
R O Cook Properties (Pty) Ltd et al).22

[44] I have no doubt that Nicholson J fully appreciated the implications of
the Bill of Rights in that regard, and would have ordered the exclusion of
Mrs Mazibuko’s interest had he considered it possible to do so, and I do not
think criticism of the learned judge on that score is merited. I think it is
apparent from his judgment that he declined to make an exclusion order only
because he considered himself unable to do so as a matter of law.

[45] The argument that was presented before him on behalf of the NDPP,
and repeated in this court, was that the interests in the property enjoyed
respectively by Mr and Mrs Mazibuko were not capable in law of separation.

22 2004 (2) SACR 208 (SCA).

That being so, it was argued, Mrs Mazibuko’s interest in the property (more
correctly, in the rights of ownership in the property), which was not liable to
forfeiture, could not in law be excised from the interest of Mr Mazibuko,
which was liable to forfeiture. Accepting that argument the learned judge,
reluctantly, declined to make an exclusion order.

[46] I agree with the argument that was presented on behalf of the NDPP
(and accepted by the court below) so far as it goes.

[47] Ordinary rights of co-ownership (sometimes called ‘free’ co-
ownership) would be capable of being separated from one another because
they are held separately by the co-owners. As Professor CG Van der Merwe
has expressed it (my translation):23
‘Although the property belongs to the co-owners communally, each co-owner can dispose
of his or her undivided share independently. Because each co-owned share is viewed as
separate property, each co-owner may deal with his or her undivided share or a part
thereof without the co-operation of his associates, and even against their will.’24

[48] But we are not concerned in this case with the ordinary rights of co-
owners. The appellants were married in community of property and the farm
belonged to their joint estate.  The rights of spouses who are married in
community of property – sometimes called ‘tied’ co-ownership – are not

23 CG Van der Merwe Sakereg 2ed (1989) p 384-5. Also Silberberg and Schoeman’s The Law of Property
5ed (2006) by PJ Badenhorst, Juanita M Pienaar and Hanri Mostert p 135.
24 Hoewel die saak gemeenskaplik aan die mede-eienaars behoort, kan elke mede-eienaar selfstandig oor sy
onverdeelde aandeel in die saak beskik. Omdat elke mede-eiendomsaandeel as ‘n selfstandige
vermoënsobjek beskou word, kan elke mede-eienaar vryelik met sy onverdeelde aandeel of ‘n gedeelte
daarvan sonder die medewerking van sy deelgenote, en selfs teen hulle wil, handel. Hierdie kenmerk
onderskei, soos reeds vermeld, vrye mede-eiendom van gebonde mede-eiendom.

divisible. As King J expressed it in his thorough analysis of the nature of
such rights in Ex parte Menzies et Uxor:25
‘[T]he co-ownership of their joint estate by spouses married in community of property is
a species of ‘tied’ co-ownership, in which the shares of the spouses are not only
undivided but also indivisible.’
He relied in reaching that conclusion on, amongst other writers, Lee and
Honoré Family, Things and Succession, 26 in which the authors describe that
form of co-ownership as follows:
‘However, this co-ownership is not the normal Roman “free” co-ownership (communio
pro partibus indivisis) with freely disposable shares and the possibility to demand a
division at any time, but can be described as “tied up” co-ownership (“gebonde mede-
eindom”, the “Miteigentum zu gesamter Hand” of German law)’.

[49] That being so it seems to me that an order that purported to excise a
portion of indivisible rights that were to vest in the curator bonis would have
been a nonsense. One might ask how the curator bonis would have been
capable of alienating only part of the indivisible rights of ownership while at
the same time retaining the balance. In that respect I think that the
conclusion reached by Nicholson J was correct.

[50] But I do not think the matter ends there. While the court below was
not capable of ordering the exclusion of Mrs Mazibuko’s interest from the
rights that would vest in the curator bonis I agree with Bosielo AJA that it
was capable of ordering a division of the proceeds once the property was
sold. My difficulty with the judgment of my colleague is that it does not
dispose of the argument raised by the NDPP and disclose what construction

25 1993 (3) SA 799 (C) 811E-G. See, too, Sakereg, above, 378-9, HR Hahlo The South African Law of
Husband and Wife 5ed (1985).
26 Page 810H-I.

he places on the section to yield that result. I do not think it is sufficient
merely to point to the fact that the argument of the NDPP would yield a
result that is constitutionally offensive and take the matter no further. If a
proper construction of the section would yield an unconstitutional result, that
would mean that the section is invalid. The question that arises in this case is
whether the section is capable of a construction that avoids that result.

[51] Having found that the rights in the property itself were not capable of
separation in my view the learned judge might have gone a step further,
though I do not fault the learned judge for not having done so because that
was not raised before him in argument.

[52] I do not think that an exclusion order need be confined to excluding
the interest from the rights that vest in the curator bonis immediately upon a
forfeiture order being made. The section allows for the interest to be
excluded from the ‘operation of [the forfeiture order]’. As I see it a forfeiture
order does not operate only to vest the property in the state. It operates as
much to trigger the authority that is conferred upon the curator bonis to
alienate the property, to require the curator bonis to deposit the proceeds to
the Account, and to entitle the state to retain those proceeds. I think that all
those consequences are capable of being said to arise from the ‘operation of
the [forfeiture order]’.

[53] It seems to me in those circumstances that it falls within the power of
a court to exclude the interest of a party from any stage of its operation and
not only from the immediate effect of the order, which is to vest the rights in
the property in the curator bonis. I think it might equally exclude the interest

from the operation of the order so far as the order operates to require the
curator bonis to deposit the proceeds to the Account.

[54] I think that Mrs Mazibuko has as much interest in the proceeds of the
property as she has in the property itself, albeit that the accrual of that
interest might be contingent on its sale, and I see no reason why that
contingent interest does not fall within the wide definition of the term in the
statute. Clearly the proceeds of the sale are susceptible to separation. It
seems to me in the circumstances that Mrs Mazibuko’s contingent interest in
the proceeds of a sale is capable of being excluded from the operation of the
order so far as the order operates to require the curator bonis to deposit the
proceeds to the Account. Indeed, s 57(1) seems to me to contemplate
precisely that, in that it requires the curator bonis to deposit the proceeds to
the Account, but only ‘subject to any order for the exclusion of interests …
under s 52’.

[55] The decided cases on POCA have all been conscious of the potential
that the statute has to invade constitutionally protected rights – in this case
the right against arbitrary deprivation of property27 – and have been careful
to avoid that occurring when construing the meaning of its provisions. As
this court said in Cook Properties:
‘[The provisions of POCA] must be construed consistently with the Constitution of the
Republic of South Africa Act 108 of 1996. The Bill of Rights provides that “no law may
permit arbitrary deprivation of property”… The Constitutional Court has held that a
deprivation of property is arbitrary when the statute in question does not provide
sufficient reason for the deprivation or is procedurally unfair. What ‘sufficient reason’ is

27 Section 25(1) of the Constiution.

may vary from statute to statute… But the Court held that non-arbitrariness at any event
requires a rational relationship between the deprivation and the legislative ends sought to
be attained through it:’(At para 15).
I think that the section is at least capable of the construction that I have
given and it is a construction that we should adopt so as to avoid
unconstitutionality.

[56] There remains one difficulty. While the joint estate persists any
moneys that are paid to Mrs Mazibuko will fall into the joint estate and
accrue as much to her husband, who has forfeited his interest in the property,
as it will accrue to her. It is well recognised, however, that property is
capable of being excluded from a joint estate that arises from the
community, as, for example, when property is bequeathed or donated on
condition that it is excluded.28 That being so I think it falls within the
capacity of a court that makes an exclusion order to order as well that the
excluded interest is to accrue only to the spouse concerned, and to be
excluded from the joint estate.

[57] There are some further matters that arise from the ancillary orders that
were made. The court below ordered that the curator bonis who had been
appointed earlier should continue in office. The continuation in office of the
curator bonis follows as a matter of law29 and I see no necessity for such an
order. It also directed the curator bonis to settle any outstanding balance on a
mortgage bond that was registered against the property before paying the
proceeds to the Account. The rights that vest in the curator bonis are
necessarily subject to other real rights in the property and will be accounted

28 Hahlo, above, pp.164-9.
29 Section 56(1).

for in the ordinary course upon transfer of the property. Once more I do not
think that an order to that effect is necessary. The court below also directed
that the fees and expenditure of the curator bonis must be deducted from the
proceeds of the property. I do not think that order was competent. The
incidence of the costs and expenses arising from a forfeiture order is
regulated by s 57(5), which requires those costs and expenses to be defrayed
from moneys appropriated for that purpose by Parliament.

[58] There remains the question of costs. The costs of the appeal are not
capable of being divided as between Mr Mazibuko (who has failed) and Mrs
Mazibuko (who has succeeded). In my view it would be just in the
circumstances to make no order in relation to those costs. As for the costs in
the court below they were attributable almost solely to Mr Mazibuko’s failed
attempt to exclude his interest and I see no reason to alter the order of the
court below (which has the effect that the costs will fall upon the joint
estate).

[59] The appeal by the first appellant fails. The appeal by the second
appellant succeeds. The order of the court below is substituted by the
following orders:

1.
The property known as Portion 11 (of 4) of the farm Spitskop 92,
Registration Division HT, province of KwaZulu-Natal, is declared
forfeit to the state in terms of s 50(1) of the Prevention of Organised
Crime Act 121 of 1998.
2.
Upon the disposal of the property as contemplated by s 57(1) of the
Act the curator bonis shall pay to the respondent one half of the net

proceeds of the property. The said proceeds shall be the separate
property of the second respondent and excluded from the joint estate
of the respondents.
3.
The respondents are ordered to pay the costs.

___________________
R W NUGENT
JUDGE OF APPEAL

Appearances:

For appellants:
J Engelbrecht SC

Instructed by:

Jasat & Jasat Attorneys, Pietermaritzburg

c/o Du Toit Louw Botha Inc, Bloemfontein

For respondent:
M Govindasamy SC

A Naidoo

K Molelle

Instructed by:

The State Attorney [Kwazulu-Natal], Durban

c/o The State Attorney, Bloemfontein