Court orders return of forfeited R2.4m stored in briefcase ‘to buy oysters’

The high court has ordered the return of R2.4m in cash — allegedly the proceeds of a gambling spree — and a vehicle which were declared forfeited to the state in 2019.

The full bench of the Northern Cape High Court made this order on Friday when it set aside an order made by the high court in 2019 for the forfeiture of the cash and VW Polo.  

The police had stopped a vehicle at a roadblock outside Colesberg on September 21 2017 and upon searching it, discovered a locked briefcase containing R2.43m. There was also a plastic bag containing R18,240.

The man who was arrested, Jermaine Johnson, was transporting the briefcase from Pretoria to Cape Town and was supposed to deliver it to a specified person.

The R18,240 was part of R20,000, of which R5,000 was intended for fuel and other expenses and the remaining R15,000 to pay Johnson for his troubles. 

Johnson and his cousin, who was with him, were arrested and charged with money laundering. However, the criminal matter was ultimately struck off the roll and charges against the two withdrawn.

The state then sought to have the money and Polo forfeited to the state as proceeds of unlawful activity.

In papers opposing the preservation order, Yanfang Qui said she was approached by Yehong Wu and Yexing Wu, referred to as Chinese nationals in the court papers, to help source oysters for export to China.

Yanfang had contact with a private company, and for the specified tonnage of oysters, a required price of R2.43m was agreed.

The Chinese nationals inquired if they could pay in US dollars but the company wanted rand paid in advance and in cash.

These terms were agreed, and the cash was left with Yanfang to finalise the transaction.

Yanfang said the Chinese nationals brought a large sum of money in the form of US dollars into the country, and after staying at and gambling in casinos, allegedly won large sums of money.

This, in their version, was the source of funds that ended up in the briefcase.

Yanfang’s version was that there was nothing illegal or unlawful in the way the funds were obtained.

However, the high court initially did not accept this explanation. In a judgment delivered in July 2019, judge Mpho Mamosebo said if the US dollars the Chinese nationals entered the country with were exchanged for SA currency, why were supporting documents to that effect not produced.

“On the other hand, if the cash was derived from winnings from casinos, what prevented the respondents from attaching supporting documentation to that effect?” Mamosebo asked.

However, the full bench of the high court upheld Yanfang’s appeal.

In the judgment passed on Friday, it held the state had not established an infringement that would taint the relevant cash concerned as being the proceeds of unlawful activity in relation to exchange control violations.

Judge Lawrence Lever said it followed that if the cash had not been established to be the proceeds of unlawful activity, the state had not established the Polo was an instrumentality of an offence. Two judges agreed with Lever’s findings.

Lawrence said the R18,420 must be returned to Johnson.

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