dwp eNewsletter - Vol3:Ed7/8 - December 2009 / January 2010

wwp eNewsletter

Vol 3 : Ed 7 / 8 - December 2009 / January 2010

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| nowheresville |

| drug farming on your property...? |

A word of warning goes out to landowners who lease their property – it is necessary in the eyes of the law to be aware of what happens on your land.

In the case on Mazibuko v National Director of Public Prosecutions (2009, SCA) Mr and Mrs Mazibuko (the appellants) jointly owned a farm which they sub-let to an individual who they believed used the farm to manufacture fertilizer and graze his cattle.

Mr. Mazibuko visited the farm every so often, but never suspected anything outlandish about his tenant. However, in reality the farm was being used to manufacture large quantities of drugs, including methaqualone – a sedative hypnotic drug. The police were successful in locating the farm and in line with the Prevention of Organised Crime Act (1998) (POCA) the High Court granted an order forfeiting the proceeds of the farm to the State.

In terms of Section 52(2A) of POCA there is however a defence available to protect the interests of an ‘innocent owner’ if there is a reasonable belief that the owner was not aware that his property was instrumental in an offence related to organized crime. Thus, a land owner’s interest in his property may be excluded from any forfeiture to the State, at the discretion of the Court. This defence has become known as the “innocent owner” defence.

In the case at hand the High Court ordered that the entire proceeds of the farm be forfeited to the State. When Mr and Mrs Mazibuko made an appeal to the Supreme Court of Appeal against this decision their appeal was dismissed. Instead the SCA corrected the High Court’s order, declaring that only the farm and not its proceeds should be forefeited to the State. The SCA maintained that Mr Mazibuko should have known that the farm was being used to manufacture drugs.

Mrs Mazibuko was of course prejudiced by this decision as she was not aware, nor did she have grounds to suspect that the farm was instrumental in an offence of organized crime. The court thus exercised its discretion in terms of Section 52(2A) of POCA and excluded her interest in the property from the order of forefeiture.