APPEAL IN COURT

“On the facts of this case the R6.2 million also constitutes the proceeds of unlawful activities, This is buttressed by the fact that none of the respondents in the forfeiture application placed any evidence before the court a quo as to their sources of income on the one hand, and their expenditure on the other, to show that there is no significant discrepancy between the two; or indeed that the R6.2 million is money derived from legitimate sources of income. They must know the source of their assets and what they have been living on. The inference is inescapable that the R6.2 million used to pay for the unpolished diamonds can only be derived from crime.”

“Given the nature of the offences and how frequently the property was used to facilitate them, it is necessary to consider Brooks’ control of the property and the illicit transactions in some detail. Brooks used the property as his office. As owner, he controlled the possession and use of the property, which was practically effective. He repeatedly allowed the property to be used as a de facto diamond trading house. He set up and facilitated each illicit transaction that took place there, in his presence. He chose the property as a suitable place where: buyers of unpolished diamonds would meet the seller; the price would be negotiated; the diamonds would be weighed and examined and large amounts of cash would exchange hands without any paperwork.

“By virtue of his involvement in the industry as the holder of a prospecting and mining permit, Brooks knew which dealers would be willing to engage in the illegal purchase of unpolished diamonds at the property. And the dealers whom he called to the property always showed up. In fact, on 20 March 2013 Brooks arranged with not one, but two dealers, Mason and Mr Mahmoud Ahmad (Mahmoud), to purchase diamonds on the property. Mahmoud bought two unpolished diamonds for R128 000 right there and then, and wanted to give the undercover agent R8 000. Instead, the money was given to Brooks for the use of the property. After each transaction, save for one, the dealer or the agent returned to the property for the price in cash.

There can be no question that the property made the commission of the offences possible or easier. The dealers did not merely happen to be there when they committed the offences: they were there by prior arrangement to trade in unpolished diamonds.

“The property provided a safe and secure place for the commission of the offences, away from the public eye and, so Brooks and the dealers thought, detection by the police. Significant quantities of diamonds – in one instance 19 – were examined, weighed and tested. Large amounts of cash - in one transaction R1.25 million and in another, R1.9 million – were brought, counted and exchanged hands on the property. A total of 78 amounting to R6.2 million were frequently sold over a period of ten months, which clearly establishes a course of criminal conduct.”

The safety and security which the property offered emboldened dealers to return to it to engage in more than one transaction. Mason did three illegal diamond deals on the property at different times. On 28 March 2013 he bought six for R260 000. After the price was agreed upon, he left to fetch the money while the agent waited at the property. An hour later Mason returned with only R200 000 and told Brooks to give the agent the balance of R60 000, which he did. This shows not only that Brooks was directly involved in that illicit transaction, but also that he stored money on the property to purchase unpolished diamonds. On 18 June 2013 Mason bought six diamonds for R640 000. On 15 October 2013 he bought six diamonds for R1.25 million, but in this transaction Mason was not present and Brooks examined the diamonds and paid the undercover agent.

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MAY 12 2017 DIAMOND FIELDS ADVERTISER

The agent says that in all these transactions he gave Brooks R10 000, which was the norm for the use of the property and for his role as the middleman. On 11 April 2013 Mason bought six unpolished diamonds for R250 000 at the property. However, the diamonds were examined at Mason’s house and the purchase price was paid at the Leisure Lodge in Kimberley. This was the only transaction not completed at the property.

“Likewise, Van Graaf returned to the property to engage in more than one illicit diamond transaction. On 25 April 2013 he bought six unpolished diamonds R240 000 and on 30 July 2013, another six for R650 000. During the transaction at the property on 25 April 2013, there was an argument about the price. As the agent left, Van Graaf called him back and offered him R250 000, which he accepted. Van Graaf then told Brooks to get the money. Brooks fetched R250 000 from a building next to the house, put it into a plastic bag and gave it to the agent. This too, shows Brooks’ involvement in that transaction and that he stored money on the property to buy diamonds. The agent gave Brooks R10 000 because the transaction took place on the property, and handed R240 000 in cash to his handler.

“The safety, secrecy and security offered by the property is also demonstrated by the fact that some dealers were not even present when unpolished diamonds were bought on their behalf and they parted with large amounts of cash. As already stated, Brooks bought six on behalf of Mason for R1.25 million at the property. Similarly, another dealer sent two of his henchmen to the property to examine and buy 19 unpolished diamonds for R1.9 million.

“The appellants however contend that the property was not an instrumentality of the offences because it was not adapted in any way to facilitate illicit diamond- dealings, diamonds were not stored there but brought on to the property by the agent; and having regard to the period during which the transactions took place, they were ‘isolated transactions’.

“The property was the base for a significant, organised and well-funded illicit diamond-dealing business. Given these facts, Brooks’ business association with Mason, the repeated use of the property by Brooks, Mason and Van Graaf who feature prominently in the illegal diamond-dealing that took place there, the inference is irresistible that the property was utilised to facilitate many more illicit diamond transactions.

“I am satisfied that the court a quo was correct in holding that the NDPP had established on a balance of probabilities that the property was an instrumentality of the offences of illicit trading in unpolished diamonds. The facts show that the property was the base for an ongoing, organised and well-funded criminal enterprise involving diamond-dealing, huge amounts of cash and inevitably, money laundering. And the uncontroverted evidence is that the offences were committed in the course of a broader enterprise of criminal activity, involving amongst others, Brooks, Mahmoud and Mason. Brooks introduced Erasmus and the agent to these dealers. Mahmoud seems to be a big player in the criminal enterprise. He, in turn, introduced the agent to a dealer, one Komalin, who told the agent that he has a plane on which he could transport the agent with diamonds and money. Komalin asked the agent to provide them with diamonds to the value of R5 million and offered to buy the agent a vehicle to travel from and to Kimberley. In another illicit diamond transaction on 2 September 2013 involving Mahmoud and Komalin, Mahmoud gave Erasmus R45 000. Two weeks later Komalin was involved in another illegal diamond deal at his home where Mahmoud was present. In January 2014 Mahmoud was involved in a further illicit transaction. Mason, Brooks’ business associate, told the agent to put diamonds on tender at the business of Mr Derrick Corns (Corns). Subsequently Corns also engaged in an illegal transaction at his home. The police later established that Corns is in fact Mr Kevin Urry, the same person who had sent his henchmen to the property to buy diamonds for R1.9 million.

“Although these illicit transactions did not take place at the property, they form part of the wider undercover operation and would not have been possible had Brooks not introduced the agent to the dealers in question.

The court stated that the use of the property as a base for illegal diamond-dealing, as a de facto trading house and as part of a criminal enterprise, is organised action against the forces of law. Organised crime and illegal diamond-dealing are a serious threat to the legitimate economy, national stability and security of the country.

“These crime are extremely difficult to detect. That is why the police had to conduct an extensive undercover operation for some two years. Given the significant number of diamonds illegally traded, the frequency of those transactions at the property and the request to the agent to provide diamonds of R5 million, the inference is irresistible that both the demand for diamonds and the profits derived from illicit diamond-dealing, are high. Contrary to the finding by the court a quo, the diamonds used in the undercover operation, valued at some R9.7 million, have not been recovered and are probably in the hidden criminal underworld. “

In his judgement, Acting Judge of Appeal, A Schippers, dismissed the appeal by the Brooks.

Judge of Appeal, VM Ponnan, however, pointed out the “disproportionate nature of the forfeiture order in this case”.

“There can be no serious claim that the confiscation sought by the NDPP is not punitive. Fundamental fairness prohibits the punishment of innocent people. I regard it as axiomatic that persons should not be punished when they have done no wrong. The unique facts of this case demonstrate that Ms Brooks and her children are entitled to the protection of that rule. ‘Improperly used, forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused, or a tool wielded to punish those who associate with criminals, than a component of a system of justice. I accordingly hold that the forfeiture order against the appellants is disproportionate and, in the result, the appeal must be upheld.”