It was second time lucky for the state as it finally obtained a forfeiture order for a vehicle that it suspected was obtained through proceeds of crime.
The Limpopo high court granted an order declaring forfeit to the state a “hyacinth red” Mercedes-Benz GLE 350d Coupe that was subject to the preservation of property order granted by the court on July 6 2021.
The National Director of Public Prosecutions had argued that the vehicle registered in the name of Paulina Mmapule Malepa, is the proceeds of unlawful activities, namely corruption and extortion. Malepa is the wife of Kgantshi David Malepa, the deputy manager of technical services at the Mogalakwena municipality.
The NDPP alleged the vehicle was purchased from Mercurius Motors in Polokwane with funds obtained from Lesiba Mokhonoana of Lesibasiba Projects and Elvis Mohuba of Tomele Business Enterprise. Both Lesibasiba Projects and Tomele Business Enterprise were service providers at Mogalakwena municipality during 2016 to 2017.
The NDPP alleged a number of service providers of the Mogalakwena municipality were coerced into paying money to Mercurius Motors for the purchase of the vehicle. Malepa allegedly threatened the service providers to pay money into the account numbers he had provided to the service providers, failing which he would not authorise payments for the services they rendered to the municipality.
The Hawks said Malepa and his wife were among the accused who were arrested by the Hawks in relation to tender corruption at Mogalakwena municipality in September 2021.
However, the Malepas claimed that the amounts paid by the two companies were due and payable to two companies — Katlego Internet Convenient Stores and Unlimited Liquor Restaurant, which was owned by Paulina Mmapule Malepa.
Upon investigation of these allegations, the NDPP ascertained from the employees of Lesibasiba Projects that no training was conducted involving the couple or their related entities. The NDPP also ascertained from Mohuba, the owner of Tomele Business Enterprise, that no agreement was concluded between Tomele Business Enterprise and the couple or their related entities.
“Neither Lesibasiba Projects nor Tomele Business Enterprise were in possession of any invoices rendered for these alleged goods and/or services,” acting judge Marianne Bresler said in summarising arguments from the NDPP in her judgment last week.
In opposition to the forfeiture proceedings, the couple said the vehicle was not an instrumentality of an offence in terms of the Prevention of Organised Crime Act nor was it the proceeds of unlawful activities. The couple said the vehicle was obtained through a lawful purchase and sale transaction between Paulina Malepa and Mercurius Motors in July 2017.
They argued that Tomele Business Enterprise signed a memorandum of agreement in terms whereof Unlimited Liquor Restaurant was to provide conference services for R801,000. They also said Lesiba Mokhonoana signed a memorandum of agreement on behalf of Lesibasiba Projects for the provision of specialised building and construction material, including training of workers and personnel, with Katlego internet Convenient Stores to the value of R1.2m.
In her judgment, Bresler said having regard to the evidence led by the NDPP and the couple, the court was in the dark as to the exact nature and extent of the services allegedly provided to the juristic entities in which the couple purportedly holds an interest.
“This court is also not privy to the full extent of the relationship between the [Malepas] and the related entities. This is information that should be wholly within the knowledge of the [couple] and should have been fully disclosed to the court,” Bresler said.
The NDPP had initially obtained a preservation order on September 20 2020. The forfeiture application was due within 90 days from date of publication in the government gazette, being October 16 2020. The forfeiture application was only served by the NDPP on February 18 2021 and after the lapse of the preservation order, resulting in the forfeiture application being moot.
The NDPP then obtained the second preservation order on July 6 2021. A second forfeiture application was consequently issued, relying on the second preservation order.
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