National Director of Public Prosecutions v Msimango and Others (In re: A 2017 V250D Mercedes Benz Avantgarde V Class)

During the COVID-19 pandemic, the Eastern Cape Department of Education (DoE) undertook emergency procurement of personal protective equipment (PPE). KUPS Trading, a supplier, was awarded a PPE tender and paid R4 066 513.95 by the DoE. The second respondent, a Chief Director in the DoE Supply Chain Management unit, had oversight responsibilities in procurement. Evidence showed that R328 000 from KUPS Trading’s bank account (funded by the DoE payment) and R305 000 from the second respondent were paid towards the purchase of a Mercedes Benz vehicle that was driven and effectively controlled by the second respondent, although registered in other names at different times. The vehicle transactions were complex and involved the first respondent (a car salesman) and Makupula, the sole director of KUPS Trading, who had personal and professional links to the second respondent. The NDPP obtained a preservation order under POCA and sought forfeiture of the vehicle (or alternatively the R328 000) as the proceeds and/or instrumentality of corruption and money laundering. The second respondent had previously been acquitted in related criminal proceedings under section 174 of the CPA.

The 2017 V250D Mercedes Benz was declared forfeited to the State under section 50(1)(a) and (b) of POCA, alternatively the gratification amount of R328 000 embedded in the property was forfeited. An enforcement officer was appointed to take control, dispose of the property, and deposit proceeds into the Criminal Assets Recovery Account, with an alternative order for partial return of proceeds to the second respondent. The second and third respondents were ordered to pay costs jointly and severally.

The case reinforces that civil forfeiture under Chapter 6 of POCA is independent of criminal convictions and that acquittals under section 174 of the CPA do not preclude forfeiture. It underscores the low evidentiary threshold (balance of probabilities) in asset forfeiture and affirms the State’s power to target property linked to corruption, particularly involving public procurement and senior public officials.