Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA 
		(WESTERN CAPE HIGH COURT, CAPE TOWN)

Coram: TRAVERSO, DJP, LE GRANGE et FORTUIN, JJ

Case No: A236/10

In the matter between:

HILDA VAN DER BURG 					First Appellant
EDWARD VAN DER BURG 					Second Appellant

And

JUDGMENT DELIVERED ON 16 MARCH 2011
[1] This is an appeal against an order granted by Gassner A], for the forfeiture of an immovable property owned by the Appellants. The order includes a refrigerator and a large quantity of liquor which was seized from the immovable property.

[2] Mr. Derris, an attorney with rights of appearance in this Court, appeared for the Appellants. Mr. G M Budlender, SC appeared for the Respondent.

[4] In the same year (2006) Standard Bank of South Africa obtained judgment against the Appellants for payment of the amount of R139 538.43 plus interest, and an order declaring the property executable for the capital and interest.

[5] It is not in dispute that the property is situated in a dense residential area. The building on the property, a semi-detached house, consists of an open plan kitchen and living area, three bedrooms, a bathroom and passage. There is also a wooden and galvanised structure attached to the right side of the house. It is also not in dispute that liquor is usually ordered from and served in the main house and the wooden structure is used as a service, sale and consumption area in the shebeen operation. Various police investigative operations concluded at the property revealed that the main house is used extensively to store liquor. Crates of liquor are also stored in the passage of the main house. Liquor is also refrigerated and stored in various different fridges in the house. One of the bedrooms is used as a stockroom for storing liquor. The Appellants live on the property together with their four minor children of various ages.

[6] The nearest school, St Raphaels Primary School, is approximately 30 meters away from the property. The entrance to the school is directly in line of sight of the property. Next to the school is St Mary's Roman Catholic Church which is approximately 100 metres away. Other places of worship and educational institutions within a 500 metre radius of the premises are the Pinkster Protestante Church, the New Apostolic Church, the Congregational Church and the Grassroots Education Centre. Approximately 900 metres away in Birdwood Street is the Star High School whose learners use Birdwood Street as a means to get to the railway station. These learners have to pass the Appellants' property in order to get to the railway station.

[7] Four licenced outlets exist within a radius of four hundred metres of the Appellant's property, namely The Crowded House, Liberty Liquors, Club Lenin and the Joy Restaurant and Sports bar. Liberty liquors have a bottle store licence and the other three mentioned premises have special liquor licences in terms of which liquor can be consumed on the premises.

[9] The public living in the area has repeatedly complained about the property being used as a shebeen. Mrs K Essa, an immediate neighbour, has written over 50 letters to various government departments in an attempt to bring an end to the unlawful selling of liquor from the property.

[10] Mrs Essa, in her complaints, described the conduct of the shebeen as follows:-

10.1.  People enter the premises and leave with liquor that was purchased there. This occurs throughout the day and night.
10.2. Patrons sit and drink liquor in the carport on the premises and in the backyard of the premises. There are benches specifically put up for these patrons to consume their liquor.
10.3. On many occasions minors purchase liquor from the premises and consume liquor on the premises.
10.4. The shebeen generates an unendurable noise.
10.5. There are regular physical fights between the patrons and the Respondents often join the fracas.
10.6. Extremely vulgar and abusive language is commonplace on the premises.
10.7. Some of the patrons become so drunk that they collapse on the road on either Carrington or Birdwood Streets.
10.8. Patrons hurl bottles at each other, and also throw bottles against the walls surrounding Mrs Essa's property. They often fling empty liquor bottles into her yard.
10.9. Patrons urinate in full view of the public, in the yard of the premises, on the streets, and against the boundary wall.
10.10 Patrons trespass on Mrs Essa's property in order to gain access to the shebeen.

11.1.   2 November 2001;
11.2. 3 May 2002;
11.3. 9 August 2002;
11.4. 24 August 2002;
11.5. 6 September 2002;
11.6. 9 October 2002;
11.7. 18 December 2002;
11.8. 15 March 2003;
11.9. 12 August 2003;
11.10. 9 January 2004;
11.11. 13 August 2004
11.12. 11 September 2004;
11.13. 10 June 2005; and
11.14. 16 June 2005.
[12] Some of these interventions resulted in convictions, and others did not. In each instance there is no dispute that liquor was being unlawfully sold on the premises.

[13] It needs to be mentioned that the police gave verbal and written warnings to the Appellants to cease the unlawful selling of liquor at the property. A verbal warning was given on 18 April 2002. Written warnings were given on the following dates:

13.1.	23 April 2002;	
13.2. 	1 May 2002;	
13.3. 	22 October 2002;	
13.4.	10 January 2003;	
13.5.	2 September 2003;	
13.6.	11 November 2003;	
13.7.	18 November 2003;	
13.8.	21 November 2003;	
13.9.	17 December 2003;	
13.10.	6 January 2003;	
13.11.	23 January 2004; 	
13.12.	21 April 2004;	
13.13.	28 June 2004;	
13.14.	8 June 2005;	
13.15.	28 June 2005;	
13.16.	1316	8 November 2005; and	
13.17.	02/01/06	

13.1	23 April 2002;	
13.2	1 May 2002;	
13.3	22 October 2002;	
13.4	10 January 2003;	
13.5	2 September 2003;	
13.6	11 November 2003;	
13.7	18 November 2003;	
13.8	21 November 2003;	
13.9	17 December 2003;	
13.10	6 January 2004;	
13.11 23 January 2004;	
13.12 21 April 2004;	
13.13	28 June 2004;	
13.14	8 June 2005;	
13.15 28 June 2005;

		

[14] The police in Athlone decided, due to lack of resources, to stop with further search and seizure operations at the property as conventional law enforcement strategies failed to have any effect on the Appellants.

[15] It was then that the National Directorate of Public Prosecutions (NDPP) decided to step in and launch an application for a preservation order in respect of the property. The NDPP obtained a provisional preservation order in June 2006. This order was made final in October 2006. The Appellants continued unabated with their unlawful activities despite the preservation order and further arrests, searches, and seizures were carried out in the months of August, September and November 2006 by the police.

[37] The remedial effect of a forfeiture order in the present matter would be that it would not only stop the respondents' contravention of s 154(l)(a) of the Liquor Act but it would also arrest the continuance of that activity by others in the ongoing enterprise. A forfeiture order would not only close down the illegal shebeen but would also convey the firm message to the respondents, to other owners of illegal shebeens and to the public at large, 'that the law does not turn a blind eye to the persistent and obdurate pursuit of criminal business and will act to demonstrate that [this] does not pay'.

[18] Mr. Budlender contended that on the undisputed body of evidence in this case it is overwhelmingly clear that the property of the Appellants is an instrumentality of the offence. Moreover, the Courts have repeatedly held that forfeiture is competent in matters unrelated to gang or similar activities. He also argued that conventional law enforcement strategies have failed to have any effect on the Appellants who continued unabated with their illegal activities. He argued that the forfeiture of their property is not disproportionate to the offences committed by the Appellants.

[21] In terms of Schedule 1, item 33 of POCA, the following offences are included:-

“.......
33.    Any offence the punishment wherefore may be a period of imprisonment exceeding 1 year without the option of a fine;
…....”

[27] On the Appellants' own version the property was bought in November 2000 and from the very outset, it was unlawfully used by them as a shebeen. An illegal wooden structure was also added to the property to specifically facilitate the illegal sale and consumption of alcohol on the premises. The business of the shebeen is conducted from the house where liquor is sold and stored. A significant amount of Liquor is stored in one of the bedrooms and in the kitchen from where it is sold. The Liquor is usually ordered from the main house and sales are conducted from both the main house and the illegal erected wooden structure. The empty crates and bottles are stored in the illegal structure. The consumption of liquor also occurs there too.

[30] There is no doubt that civil forfeiture of property is a controversial mechanism. However, this law enforcement tool has been accepted by many countries all over the world as a legitimate mechanism to combat serious crime.

[31] The primary purpose and feature of forfeiture is to prevent further illicit use of property and by imposing an economic penalty, thereby rendering illegal behaviour unprofitable and to cripple criminal activity.

[34] The facts in this matter are of a rather peculiar nature. Mr. Derris, in advancing his argument that a forfeiture is disproportionate in this instance, contended that the offence of unlawfully selling liquor, is not one of the extreme offences and the maximum penalties in terms of the Liquor Act were never imposed upon the Appellants.

[36] The further suggestion by Mr. Derris, that the maximum penalty in terms of the Liquor Act may have been sufficient to stop the Appellant's from their illegal activities and that a forfeiture order is in fact a "topping up" of the penalties provided for by the Liquor Act, is with all respect contrived. The numerous police actions over a period of six years and the different court sanctions, including a preservation order from this Court did not stop the Appellants from continuing with their illegal shebeen enterprise. Moreover, nowhere in the provisions of POCA is it a prerequisite that the maximum penalty of direct imprisonment of persons must first be sought before a forfeiture order can be obtained against them. The primary purpose and feature of forfeiture remains the imposition of an economic penalty, thereby rendering illegal behaviour unprofitable and crippling or inhibiting criminal activity.

[38] The evidence in this case overwhelmingly proves that the offence the Appellants committed was in the course of an ongoing criminal enterprise. It is also not in dispute that an employee of the Appellants was brutally murdered in the house and both Appellants were arrested for this crime. The ongoing criminal enterprise of the Appellants has a severe impact on their neigbours who have repeatedly complained about the social deterioration of their neighbourhood as a result of the illegal shebeen. The neighbours' complaints are not frivolous. It appears minors have repeatedly frequented the property to purchase liquor. A primary school is situated 30 metres away and in direct line of sight of the Appellants' property. Other places of worship are also in close proximity, including a high school. The complaints also relate to severe anti-social behaviour when patrons are drunk. The growing concern about the way major substance abuse related crimes continues to threaten and affect the everyday lives of ordinary members of the community, is a factor that cannot be ignored by this Court. There is a duty upon all, within the framework of our constitutional democracy, to deter the persistent and continuous illegal enterprises of criminals who have little respect for the rule of law and contribute to society's ills and ultimate deterioration of our neighbourhoods.

[39] On a conspectus of all the evidence, this is no ordinary matter and must rank as one of the extreme cases where crime has become the Appellants business. The forfeiture of the property and movables is therefore not disproportionate to the purposes which POCA aims to achieve. It follows, for the reasons stated herein, the appeal cannot succeed.

[40]   In the result the following order is proposed.

The appeal is dismissed with costs.

I agree and it is so ordered.

I agree.