In
the court a quo, applicant applied
for and obtained a preservation order in respect of a Polo motor vehicle
pursuant to s 51 of the Prevention of Organised Crime Act (POCA). As is the
process, the preservation order was followed up by an application to have the
property declared forfeited to the State pursuant to s 59 of POCA. The basis
for the forfeiture order sought was that the Polo was an ‘instrumentality’ of
the offences of kidnaping and rape. The court a quo found that the applicant failed to establish the offence of
kidnapping and insofar as the rape was concerned, that the applicant failed to
establish that the Polo was an instrumentality of the offence, and that it was
merely incidental to the offence.
It is held that,
this is not a case where the Polo was used merely to facilitate or make the
offence possible. The vehicle was functional to the commission of the crime.
The Polo was reasonably directly connected to the crime and that it was the
method by which respondent transported the complainant to the spot where he
intended to rape her and he did rape her.
It if further held that, the
court a quo erred in finding that the
use of the Polo in the present matter was merely incidental to the commission
of the offence.
It is thus held that,
the applicant does not only have prospects of success in the appeal, but that
the appeal should be allowed in respect of the offence of rape.
Another
issue this court dealt with is whether the court should allow in new evidence, an
‘affidavit’ of the complainant in the rape case?
To
allow further evidence on appeal is only done in exceptional circumstances. It
must be explained, based on evidence which may be true, why this evidence was
not presented to the court a quo.
Secondly, there must be a prima facie
likelihood of the truth of the evidence. Thirdly, the evidence should be
materially relevant to the outcome of the initial proceedings. The evidence
sought to be introduced need not be incontrovertible but it must be apparently
credible. Whereas the new evidence clearly raises questions as to the
reliability of the complainant in respect of the details of the assault on her,
it does not in any manner impugn the credibility of the persons who arrived on
the scene and who basically caught the respondent red handed busy having sexual
intercourse with the complainant.
It is thus held that,
the application to present further evidence is declined.
