State can keep R2.4m, car seized at roadblock, NC court rules
The vehicle, a white Volkswagen Polo, was driven by the son of the head of crime investigation services at the detective unit at the SAPS head office in Pretoria, Major-General Charles Johnson, who has apparently since resigned.
The Polo and R2.4 million that was found inside a locked briefcase in the vehicle have been forfeited in line with a judgment that was delivered by Northern Cape High Court Judge Mpho Mamosebo earlier this month.
According to her ruling, the vehicle will be sold either by public auction or private treaty by the Asset Forfeiture Unit.
The R2.4 million, less any commission and incidental expenses occasioned by the sale, will be paid into the Criminal Asset Recovery account within the next 45 days.
The briefcase containing the R2.4 million was handed to Johnson’s son, Jermaine, to transport from Pretoria to Cape Town, along with an additional cash amount of R20 000, in September 2017.
The cash was stashed inside a Pick * Pay plastic bag, where R5 000 was set aside for fuel and food while the balance of R15 000 was allocated for the transportation of the money.
Jermaine, who was the driver of the white Volkswagen Polo, and his cousin, Deavon Noble, who accompanied him, were stopped at a roadblock on the N1 near Colesberg on September 21, 2017 at about 12.30am.
The police searched the vehicle and discovered the locked briefcase, which they were unable to open.
Jermaine had to call his father, who in turn had to contact a “Mr Leon” - a Chinese national - to provide him with the code to unlock the briefcase.
The police confiscated the R2.4 million that was contained inside the briefcase, together with a cash amount of R18 240, as well as the Volkswagen Polo.
Jermaine and Noble were taken in for questioning at the Colesberg police station. They were later arrested on charges of money laundering.
In an affidavit, Major-General Johnson indicated that he was approached by a Mr Leon, whom he had known since 2002 as an informant who assisted him in numerous kidnapping cases.
Johnson offered to avail his son to transport the money for Leon.
Leon had explained that during past encounters, Chinese nationals who transported money on his behalf were often robbed by the police or traffic officers or even individuals who extorted payment from his couriers.
Johnson stated that his son had transported money on four or five occasions with the use of the white Volkswagen Polo, which was in his possession for about a month prior to his arrest in September 2017.
Judge Mamosebo, in her judgment, remarked that no documentary evidence was provided that any of these incidents were reported to the police or that the Major-General had investigated Leon’s claims.
She found it uncanny, that Leon was familiar with both the code to open the briefcase and the exact amount of money that it contained.
“This evidence corroborates the evidence in the affidavit deposed to Sergeant Ziswana that Johnson Jnr explained to him that he was employed by a Chinese national called Mr Qiu to whom the Polo belonged. He used the Volkswagen Polo to transport money from Pretoria to Cape Town and it was not his first time to be caught. It can be said that when Johnson Jnr told the police he was not ‘caught’ for the first time he implied that he was previously arrested under similar circumstances.”
The legal representative for the National Director of Public Prosecutions (NDPP), advocate L Van Dyk, had argued that the Volkswagen Polo was used as an instrument when the offence was committed, whereas the cash was the proceeds of unlawful activities.
According to the NDPP, the vehicle was used to transport the money, which was “concealed or disguised”.
Advocate Mastenbroek, the legal representative for Jermaine and Qiu, maintained that the NDPP was relying on a “mere suspicion of unlawful activity” and had no proof of unlawful activities.
He argued that “it was not a crime to drive through the Karoo in the middle of the night with a large amount of cash stuffed into a suitcase”.
Judge Mamosebo noted that the fact that the criminal matter was struck off the roll, was irrelevant to the civil proceedings.
“The Volkswagen Polo made it possible or facilitated the commission via the transporting of the cash. I find that the Volkswagen Polo played a direct role in the commission of an offence.
“The movement of the money is highly questionable but certainly suspicious and has not been cogently explained.”
Two chinese nationals, in court papers, explained the origins of the money in question.
Yanfan Qiu explained that a “substantial amount of US dollars” was brought into the country from China and claimed that she had received a payment of R2.4 million, which she had kept “in safe keeping”.
In a supporting affidavit, Yehong Wu stated that during their visit to South Africa they stayed in numerous casinos where they often gambled and won substantial sums of cash exceeding R2.5 million.
Wu added that during March 2017, Qiu was entrusted with an amount of R2.4 million in order to purchase oysters from Salmar Trading (Pty) Ltd, which is based in Cape Town.
Judge Mamosebo highlighted how the money that was in the possession of two Chinese nationals, Yehong Wu and Yexing Wu, who had entered South African shores, had never been disclosed or declared.
“The claims of the huge casino winnings as well as the substantial US dollars, which apparently changed hands without any reporting to the authorities, falls squarely within the prescripts of this act. The fact that no authorised mechanism was used to transport the money but rather a youthful courier or ‘mule’ to act as a decoy shows the extent to which the respondents stooped.”
She found it peculiar that Jermaine had claimed that he had been contacted by Yanfang Qiu, an acquaintance, who asked him to transport a briefcase on her behalf to Cape Town.
“He does not specify how she contacted him. It is also unclear why he refers to her as an acquaintance. If she is the one who contacted him why would he, upon demand by the SAPS members for the code to unlock the briefcase, contact his father and not his acquaintance?”
Judge Mamosebo questioned why no supporting documents were provided to the court to prove that the cash was derived from casino winnings.
She pointed out that at the time that the R2.4 million was purportedly paid over to Qiu in March 2017 for the procurement of oysters, the suppliers - Salmar Trading - did not possess any permits or licence to trade in oysters.
“The National Regulator for Compulsory Specifications (NRCS) issued a certificate to Salmar on December 20, 2017.
“There is further no proof of a conversion of the currency from US dollars to rands before Qiu was entrusted with the cash. In South Africa, cash payment includes electronic fund transfers. Mr Tsz Chueng, a director of Salmar Trading (Pty) Ltd, deposed to a supporting affidavit that Salmar received the news that the licences and permits ought to be ready by November 2017. He was then advised that the money would be delivered in September 2017.”
Judge Mamosebo believed that it was inexplicable how the Wus or Salmar Trading would have known the exact amount of R2.4 million.
“Salmar was unlicensed at that stage and the certificate issued, valid for three months, was meant for Salmar to notify the NRCS of its compliance with the requirements that their facilities could handle and package oysters. It was not a licence for Salmar to start the trading with oysters.”
Judge Mamosebo indicated that Yanfang Qiu had failed to clarify whether her passport, which was provided to the NDPP, was either fake or did not belong to her. “Her passport does not reflect the name of the passport holder.”
She noted that the Department of Home Affairs had indicated that in her application, Qiu’s permanent residence was approved on February 24, 2009.
“Movement on her traveller’s record show that her last entry into the country was on October 9, 2009. No other entry or departure was detected after the indicated date. Her passport was only used once, when she entered the country on July 26, 2005.”
The department was also not able to trace any records of the Chinese nationals - Yehong Wu and Yexing Wu.
“It is on this basis that the NDPP urged me to find that the explanation pertaining to the origin of the money is false and fabricated and should be rejected. Mr Mastenbroek was invited to address me on the passports but the argument was sterile, to say the least,” Judge Mamosebo added.
She was convinced that the Volkswagen Polo was instrumental in facilitating the transportation of huge sums of money between Pretoria and Cape Town.
“The reasonable inference to be drawn from the facts and circumstances is that the money was the proceeds of unlawful activities.
“While Johnson Jnr may have been in possession of both the Volkswagen Polo and the seized cash, it is incomprehensible why he would oppose forfeiture because he has, in my view, not made out a case that he had a legal interest.“
Judge Mamosebo was also not swayed by Qiu’s explanations regarding her so-called casino winnings, nor her claims of wanting to purchase 75 tons of oysters for export to the amount of R2.4 million when the supplier - Salmar- was unregistered and unlicensed at the time.