Right to a fair trial.

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Is the Bill of Rights a no thing? Who dare answer?

Proof on a "balance of probabilities" is a play with words that affords unwarranted credibility to the term a "balance of probabilities".

A "balance of probabilities" does not constitute proof of anything.

There is no relationship between the proper meaning of the word "proof" and the meaning of the term "a balance of probabilities".

It is as unreasonable to present any such combinations of opposing values of words as it is to say that proof can be arrived at "on the action of throwing dice" because "a balance of probabilities" is closer in meaning to a "throw of the dice" than it is to the meaning of proof. A "balance of probabilities" is statistical in nature. It is guesswork. It has nothing to do with "proof"

From her Constitutional Court judgement it would appear that Judge Nkabinde thinks that to determine something on "a balance of probabilities" constitutes a higher standard of proof than proof "beyond reasonable doubt". Your average paralegal would be at odds with her opinion.

According to Judge Nkabinde of the Constitutional Court, paragraph 42 of her judgement, “…on the record, the applicant has admitted what was found on the property…” and also paragraph 71 “In his affidavits on the record, the applicant did not dispute the respondent’s version of what was found at his home during the search.”

To confirm accuracy of the above quotes please CLICK HERE to see the Constitutional Court judgement as published on the internet.

For the judge's information the word "deny" is a verb meaning "to declare untrue."

In Prophet's affidavit to Erasmus see volume 3 pages 176 – 242 (These numbers refer to documents that were submitted to the Constitutional Court judges. For verification of accuracy then these documents, I assume, are somewhere with the Constitutional Court records in Johannesburg.) the word “deny” appears 92 times.

See paragraph 5.1, 5.2, 5.4, 5.5, 5.6, 5.6, 5.7, 5.7, 5.8, 5.8, 5.9, 7, 9, 10, 11, 12, 13, 15, 16, 18, 20, 22, 29.2, 33, 35, 38, 38, 39, 41, 43, 45.1, 46, 46, 47, 49, 50, 56. 57.1, 57.1, 57.3, 58, 59.1, 59.1, 60.2, 63, 64, 64, 65.1, 66.1, 67, 67, 68, 71, 73.1, 73.2, 74.1, 75, 78, 81, 82, 83, 84, 85, 86, 87, 88, 90, 92, 92, 93, 94, 100, 101, 102, 108.1, 108.2, 109.1, 109.3, 113, 113.1, 115, 116, 118, 119.1, 119.1, 119.2, 121.2, 123.1, 125 and 127.

In the same affidavit with regard to 1-phenyl-2-propanone the word “deny” appears 8 times.

See paragraph 11, 46, 63, 84, 85, 108.1, 108.2 and 109.3.

Prophet has discussed this chemical at length to show that it is not illegal but he does not admit that it was found in his home.

.......SNOOZE.........

Prophet has appeared in two different criminal charges on the identical charge and he pleaded “not guilty” in both criminal trials. How is that to be interpreted?

He has been maintaining since 2001 that the state has falsely accused him of manufacturing methamphetamine.

He is not involved in organized crime and the state has, in no less than two criminal trials, failed to show that Prophet committed a crime. All the allegations against Prophet have been shown to be false. It is all so pathetic that, in the context of 54 Balfour Street, the state has failed entirely to show that any crime has ever happened. Thinking people are therefore compelled to ask then "how could the house have been condemned as an instrumentality of a crime in the absence of a crime?"

LEGAL TRICKERY

Above is an extract from the Constitutional Court judgment.

More than a 1 000 pages of affidavits were submitted to the Constitutional Court.

Only one of those affidavits was written by Prophet rather than by lawyers. That was his replying affidavit to the Supreme Court of Appeal for leave to appeal and it shows in living colour how the state has been violating his rights. Few people who appeal to the Supreme Court of Appeal do so without legal advice but Prophet had become frustrated with legal advisors and he wanted his side of the story on record.

This is the affidavit that is referred to as “albeit not in formal legalese or language”.

After Prophet was granted leave to appeal he was advised to approached a new advocate and for better or worse that team became his new guy on the block and Prophet did sign his heads of arguments that went to the Supreme Court of Appeal but he also does remember complaining bitterly with his advocate about the inclusion that the Prevention of Organized Crime Act “passes Constitutional muster”.

Prophet referred the advocate to his book and the chapter dedicated to civil rights issues and he told the advocate that the Prevention of Organized Crime Act most certainly did not “pass Constitutional muster”.

The advocate argued with Prophet that it did because the Constitutional issues had been raised in Parliament before the law was enacted and that therefore it did “pass Constitutional muster”.

Prophet told him that he did not agree with him and he told him that whoever passed the Prevention of Organized Crime Act into law had never read the Bill of Rights because anyone who is familiar with the Bill of Rights could never agree that the Prevention of Organized Crime Act is consistent with the Constitution.

This formed much of the basis of his replying affidavit and Prophet insisted that his replying affidavit be included as papers before the judges. He felt confident that any competent judge who read his replying affidavit would immediately see that the Prevention of Organized Crime Act most certainly does not “pass Constitutional muster”.

When you read Prophet's replying affidavit there simply is no defense for the state. His arguments are consistent and lengthy and convincing.

His affidavit is devastating for the state and Prophet remembers his psychic intuition telling him that the state was, to itself, admitting defeat but the state found a way to slyly engineer the removal of its two affidavits to which he was replying thereby nullifying his arguments. For the benefit of historians who will come to show an interest in this case we are here including these affidavits that were removed from papers before the Constitutional Court.

The Constitutional Court judge has been quick to see the inconsistency of it being said in one breath that the Prevention of Organized Crime Act “passes Constitutional muster” and in the next breath that the Prevention of Organized Crime Act it is inconsistent with the Constitution.

The judge is correct to have noticed the inconsistency of the statements. The sentence is digressive but she is not going to use a single sentence to dismiss Prophet's voluminous arguments that the Prevention of Organized Crime Act is inconsistent with the Constitution.

Making a loud claim that his “discursiveness should not be countenanced” does not dismiss his appeal that the Prevention of Organized Crime Act violates the Constitution through and through.

What she should not be countenancing is gross violations of human rights. Lawyers are weak to the frailness of being human and that is forgivable.

What is not forgivable is to treat an innocent man in a fashion that is cruel and you are going to have a hard time trying to argue that stripping an innocent man of his home without compensation is not an act of cruelty. To throw his family into the street with no place to go competes favorably with some of the worst things that happened during apartheid.

This website is here for the benefit of all to know and history is not going to be deprived of these affidavits and history is going to defend Prophet.

What the state and the civil courts have done to Prophet is gross violations of human rights.

No one may be deprived of property and no law may permit arbitrary deprivation of property.

"SA’s Constitutional Safeguards are in Tatters"

Professor Robert W Vivian

Constitutions should limit government, not facilitate it.

Governments and rulers that violate citizens’ fundamental rights to property prompt civil uprisings and revolutions. Famous codes including Magna Carta, the English Bill of Rights, the Constitution and Federal Bill of Rights of the United States , and the (French) Declaration of the Rights of Man were written to protect citizens’ rights. Nowadays government powers are often limited by constitution and independent judiciary. In a string of recent court cases, Simon Prophet was acquitted of making drugs at home but the Asset Forfeiture Unit (AFU) seized his home using the Prevention of Organised Crime Act (POCA). Both Supreme Court of Appeal (SCA) and Constitutional Court (CC) rejected his appeals and trampled our precious constitutional safeguards underfoot.

Due Legal process

Magna Carta guaranteed no deprivation of life, liberty or property except by due process of law. POCA ignores due process to say assets (not people) commit ‘crimes’, like Darius the Great (492BC) having the sea flogged when his fleet foundered in a storm. Saying assets commit civil offences rather than crimes, AFU use criminal laws to effect civil forfeiture.

First AFU applies secretly to a judge for a ‘preservation order’, thus bypassing the public trial required by due process. The judge must decide given a one-sided view instead of (due process) hearing both sides. He relies on an affidavit without seeing (due process) evidence. Unsurprisingly a judge declared the whole process unconstitutional when AFU first approached him to approve taking private property in this extraordinary manner.

Then AFU can approach the court again for a ‘forfeiture order’. If anyone else such as a bank has an interest in the property, they must file an answering affidavit with the court – another process new to SA civil and criminal law. POCA violates most due process requirements of constitutional law.

Right to silence

Medieval witch trials illustrate why constitutions now enshrine the right to remain silent. Old people were killed as witches after court conviction based on ‘evidence’ of their ‘confession’ under torture. More torture, more witches.

POCA specifically seeks to deprive an accused of the right to silence, forcing either a replying affidavit or loss of AFU-seized property. No evidence was presented in Prophet’s case of organised crime including him. In his forced reply he acknowledged organised crime as a problem, then the court used his own words to prove its existence!

Double jeopardy

The constitution says nobody may be tried twice for the same offence. POCA violates this double-jeopardy rule. Preservation and forfeiture orders required courts to find that Prophet had committed a criminal offence. Acquitted once, he was then tried again twice and concurrently for the same offence – two simultaneous extra AFU bites at the cherry! SCA even noted SA’s uniqueness with POCA taking assets without a criminal conviction.

Evidence

Many important age-old rules require evidence presented orally in court, forbidding irrelevant and hearsay evidence. Unprecedented in jurisprudential history, legally no evidence was placed before the courts in the Prophet cases, which were apparently resolved based solely on affidavits. So several oddities emerge from the judgements. Without admitting the evidence record from the criminal trial, SCA concluded that it was dismissed on a technicality after merely being advised of this from the bar. Later the CC built on this technical aspect, so both courts reached important conclusions on aspects they refused to admit as evidence!

And courts accepted the existence of organised crime in South Africa based purely on the legally-irrelevant ‘evidence’ of a concession in Prophet’s affidavit. Why would Prophet, poor, unemployed and not part of any known organised gang, have knowledge, other than hearsay, of organised crime in SA? POCA violates rules of evidence.

Punishment fitting the crime

Politicians often deal with opponents by taking all their private assets as a ‘fine’ for some trumped-up ‘criminal’ charge. The (1800 BC) Code of Hammurabi’s Lex Talionis that the punishment must fit the crime appears in every major constitutional code worldwide, to ensure a strict link between crime and punishment. So a law that creates a crime also specifies its maximum punishment. AFU unconstitutionally seeks to seize private assets exceeding stipulated punishments. Violating the principle also creates inequality before the law, as people in identical circumstances are treated vastly differently by POCA. Layabouts without assets walk free while a worker loses his home!

Seizure without trial

Constitutions usually oblige judges to guarantee fair trial but Prophet’s home was taken without a trial. Considering all the violated constitutional safeguards, the Prophet case was no trial and produced further strange anomalies. One purpose of a trial is to let the accused present evidence, but Prophet was still trying as late as the CC case to admit the record of the criminal trial, which was refused.

Conversely SCA wanted Prophet to show evidence why he shouldn’t lose his house. But when, since there was no trial should he do this? In his replying application, before even appearing in court? And CC wished Prophet had correctly formulated the constitutional issues. But when was he supposed to do this – in his replying affidavit? With trial court procedures ignored, no wonder such anomalies appear in judgments! POCA and the courts ensured that Prophet got no trial, fair or otherwise, thus most grievously breaching the constitution.

Presumption of innocence and trial by media

Did so many violations prompt public outcry or at least protests from legal bodies? On the contrary, editorials in two leading newspapers supported seizing private assets. A universal theme said Prophet’s acquittal was on a technicality so he deserved to lose his assets!

When Hitler dissolved parliament and gave himself all constitutional power he released statement after statement, dutifully repeated by the press, about evidence he had of a communist plot. No such evidence existed. Senator Joseph McCarthy in America made similar unsubstantiated claims. AFU clearly manipulates the SA press like that. While searching Prophet’s home, the press were let in, but who notified them? Certainly not Prophet! POCA has led to disregarding the constitutional presumption of innocence.

Conclusion

In the Prophet cases various constitutional principles were breached - safeguards which evolved over centuries to protect us from the state; and our rights to life, liberty and property. Now it has been announced that POCA applies to all alleged crimes, even mere traffic offences. Clearly little remains of South Africa’s constitutional safeguards. They are in tatters and our nation is again in jeopardy!

Author: Robert W Vivian is Professor, Finance and Insurance, University of the Witwatersrand . This article may be republished without prior consent but with acknowledgement to the author.

Heaven forbid a sad day dawning Constitution.

What follows is Prophet's replying affidavit to the state at the Supreme Court of Appeal. Rabajii works for the National Prosecuting Authority.

For the sake of easy reading the paragraphs have been arranged in a sequence of direct dialogue between the state and Prophet.

For verification of material presented here these documents should be available, we are assuming, from the library at the Constitutional Court in Johannesburg or from the library at the Supreme Court of Appeal in Bloemfontein.

The interspersed grey/blue sections are retrospective comments from Prophet.

R A B A J I

paragraph 1

P R O P H E T

reply paragraph 1

I am a director of Public Prosecutions of the Republic of South Africa. Duly appointed as such in terms of section 13(1) of the National Prosecuting Authority Act, 32 of 1998.

As a director of Public Prosecutions Mrs. Rabaji should be fully acquainted with the Bill of Rights and has therefore no reasonable excuse not to have seen that her efforts to deprive me of my home violate my civil rights. The timing of her actions violate section 35(3) (h) of the Bill of Rights and the action itself violates section 25(1), section 25(2)(b), section 25(3) (a), (b), (c), (d) and (e), section 25(4) (a)(with reference to Ms. Daniels) and section 25(5)(with reference to Ms. Daniels) of the Bill of Rights.

R A B A J I

paragraph 2

P R O P H E T

reply paragraph 2

The facts and the conclusions set out herein are within my personal knowledge, unless I state to the contrary or the context indicates otherwise, and I believe same to be true and correct.

Many of the “facts” that Mrs. Rabaji presents as facts are not facts. Many of the things that she says about me are untrue and are not within her personal knowledge.

R A B A J I

paragraph 3

P R O P H E T

reply paragraph 3

I am the head of the Asset Forfeiture Unit of the National Prosecuting Authority and have been duly authorized by the National Director of Public Prosecutions (“the NDPP”), the respondent in this matter, to act in all proceedings brought pursuant to, arising from and in connection with the Prevention of Organized Crime Act, 121 of 1998 (“the POCA”), and to take all such steps as may be necessary to give effect therein.

The content is noted.

R A B A J I

paragraph 4

P R O P H E T

reply paragraph 4

I make this affidavit to oppose:

1) the application of the above named applicant (“Prophet”) for leave to appeal to the above Honourable Court against the judgment and order of His Lordship Mr Justice N Erasmus of the Cape High Court dated 22 May 2003 (which for the sake of convenience I refer to as “the Judgement”) declaring forfeit to the state the house owned by Prophet in terms of s50(1)(a) of POCA because it was used as a illegal drug factory, i.e. an instrumentality of the offence of illegal drug manufacturing; and

2) the application for condonation of late delivery of the application.

I vehemently deny that Erasmus forfeited 54 Balfour Street because it was an illegal drug factory. The words “illegal drug factory” do not appear anywhere in his judgment.

By ignoring and violating whole sections of the Bill of Rights he forfeited my home through his failure to properly interpret the DDT Act and through his failure to properly comprehend the Prevention of Organized Crime Act and through his failure to respect the law.

R A B A J I

paragraph 5

P R O P H E T

reply paragraph 5

Before dealing with those applications on their merits, I respectfully submit that they should be dismissed on the following grounds:

1) Prophet’s founding affidavit has not been properly commissioned in that the commissioner of oaths does not give his name or particulars.

2) the purported affidavit by Prophet’s attorney marked “SP3” has not been commissioned at all;

3) the application for leave to appeal is not accompanied by copies of the ex tempore judgement and of the court a quo dated 9 September 2003 dismissing the application for leave to appeal (cf. rule 6(2)(b) and (d) of the rules of this Honourable Court), and it appears from the said annexure “SP3” that no attempt was made to obtain them from thr Registrar of the High Court or Sneller Transcriptions (Cape) (Pty) Ltd (the company which records and transcribes the proceedings in the Cape High Court).

A 5: Erasmus unconstitutionally deprived me of my civil right of leave to appeal against his judgment and Mrs. Rabaji is obstructing my civil rights in terms of section 35(3) (o) of the Bill of Rights. At no time have I ever agreed to the findings of Erasmus. It has not been an easy task for me to secure the finances that are required to appeal and Mrs. Rabaji relies on a technical failing on my part in an attempt to achieve the denial of my rights but forgets that her department also failed in its timing to secure the preservation order.

A 5. 1: My lawyer has told me that my affidavit was properly commissioned and that the name and particulars of the commissioner of oaths has been provided.

A 5. 2: I have a copy of my lawyer’s affidavit and the commissioner’s stamp appears on the back page of the affidavit.

A 5. 3: My lawyer has told me his efforts to obtain the relevant documents were unsuccessful because the file at the Cape High Court records was empty and that he was unable to obtain an explanation for that.

R A B A J I

paragraph 6

P R O P H E T

reply paragraph 6

Alternatively, I submit that the deficiencies just described are further reasons why the application for condonation should be refused.

Mrs. Rabaji points out all of my deficiencies and the dire consequences thereof with admirable precision but she is blind to her own deficiencies.

After I was arrested it can be shown on my notice of rights in terms of the Constitution that I was informed in Afrikaans that the reason for my arrest was “HANDEL MET METAMFITAMINE KLANDESTIENE FABRIK”. For An English speaking person like myself that is quite a mouthful. This certificate was submitted as evidence with my answering affidavit to Mr. Erasmus and attention was drawn to it in paragraph 45.1. Everyone knows that I am an English speaking person so then why has the NDPP always submitted Venter’s technical evidence and listings of chemicals in Afrikaans?

In my aborted criminal trial and in my civil trial that information has always been presented in Afrikaans. This is why up until after the end of my civil trial that I was unaware that I had not been found in possession of an illegal substance. Everyone was telling me that the drug police had found illegal substances in my home and I assumed that what I was being told was true.

It is difficult for a layperson to understand chemical terms and jargon in his own language but when confronted by that information in a foreign language it becomes exceedingly difficult. Even Venter, who claims to be an expert, has himself made a mistake when he referred to sodium hydroxide as potassium hydroxide. When questioned about this Venter replied in his affidavit paragraph 9.3 and I quote “It is correct that I referred to sodium hydroxide as potassium hydroxide in my affidavit deposed to in support of this application. I am Afrikaans-speaking and erroneously translated “natriumhidroksied” as potassium hydroxide. The correct translation, I have subsequently established, is sodium hydroxide.”

According to section 35(3) (k) of the Bill of Rights every accused person has the right “to be tried in a language that the accused person understands.”

Even in the responding papers to this application Mrs. Rabaji again lazily (?) or deliberately (?) submits annexes of Venter that are in Afrikaans. It only takes one violation of my civil rights to have the criminal accusation set aside. The drug police did not find any illegal thing in my home. All of the chemicals in my home were and are legal. If all of the legal chemicals that were found, which is the foundation of Mrs. Rabaji’s speculation that I am a criminal (and through the association of the Prevention of Organized Crime Act and by implication thereof that I am a gangster), are set aside then what other evidence does she have to support her allegation that I am involved in organized crime?

Whether she likes it or not, Mrs. Rabaji is going to have to meet me in a court of law to resolve these issues even if I must wait until after my innocence has become a proven fact in the criminal trial. Instead of presenting petty loopholes to avoid the inevitable she should brace herself and face me now because I will not back down until justice is done.

Every accused person has the right to be tried in a language that the accused understands.

RETROSPECTIVE PROPHET COMMENT:

The Constitutional Court has inadvertently demonstrated the seriousness of language complications by themselves getting confused about what the chemicals were. Judge Ndibandi erroneously misrepresented the proper name of one of the chemicals. She refers to “potassium hydroxide” when she should have referred to “sodium hydroxide”.

My request to submit the criminal court transcripts to the Constitutional Court in my defense at the Constitutional Court was rejected because to have accepted those transcripts into the court would have eliminated any discussion about any chemicals because the findings of the criminal court make any such discussion unlawful.

By dictate of section 35(3) (h) of the Bill of Rights, Erasmus was compelled to have waited for the criminal trial to have been concluded but he did not. This is a civil rights violation second to few but, let us for a moment, overlook the “unlawfulness” of the discussion itself and just consider the error within the discussion as made by the Constitutional Court.

I have highlighted these chemicals in different colours to make it easier for you to follow and when you read my complaint in my replying affidavit (paragraph A6 above) and then you see the mistake made by the Constitutional Court then you have to wonder if any of the judges even read my replying affidavit. Such a mistake is indeed an embarrassment. If the state had been made to comply with the Constitutional non-derogable laws then this mistake would not have been made and the judges would not be sitting today with red faces.

All the judges made the same mistake because none of them noticed the error.

It is clearly a violation of my civil rights for the state to submit any documents or even only one document in a language that is foreign to me. Let us not even consider, for the moment, that the documents themselves have been deemed “beyond all reasonable doubt” to be “unlawful”. Let’s just consider the language law violations.

All state affidavits relating to chemicals and procedures were submitted in Afrikaans and these affidavits were in full view of the Constitutional Court judges and my complaint about this in my replying affidavit was also in full view of the Supreme Court of Appeal and the Constitutional Court as it is also in full view on this web site but not one mention was made by any of the judges with relation to these language law violations and now the judges themselves have fallen into error on this very issue. Well what are you and what are the judges going to do with that?

My lawyers are not chemists. This was a deliberate unlawful scheme on the part of the state to confuse me. The state violated a supreme non-derogable law. For the state to say that such a law is not applicable in a civil trial is absurd and I would have preferred if the Constitutional Court immediately put Trengove in his place when he made his remark that non-derogable supreme laws relating to accused persons only apply in criminal trials. These are supreme laws. They apply in any trial including any civil trial.

Is the Constitutional Court going to argue with this after the judges themselves made a mistake in consequence of language law violations? These are non-derogable supreme laws. For goodness sake! Trengove is not derogating these laws. He is eliminating them.

What Trengove did is tantamount to treason!

The Constitutional Court judgment is on the web. The judge made a mistake. You can confirm this mistake yourself. Go to paragraph 11 and you will see that the judge refers to “potassium hydroxide” not once but twice. She tells us that this chemical is used to make 1-phenyl-2-propanone and that it was found in my home. Not true! Both times!

The words in green are the words of the judge.

The words in blue are my additions.

My cartoon is not meant to offend the judge. In paragraph 11 of her judgment, the judge did make a mistake and I have added to her words in the call out but not to be disrespectful. This is my way to highlight the difference between a “fact beyond all reasonable doubt” and a “suspicion”.

It is a humiliation to any civilized and decent society when civil courts proceed to tolerate laws that permit arbitrary deprivation of property without compensation in violation of Constitutional laws.

R A B A J I

paragraph 7

P R O P H E T

reply paragraph 7

The NDPP opposes the application for leave to appeal because Prophet does not have a reasonable prospect of success in the intended appeal. The house declared forfeit to the state was undoubtedly concerned in the manufacture of methamphetamine, which is a very addictive and dangerous drug. One of the rooms in the house had been converted into a mini laboratory. Mr Prophet used it to manufacture the methamphetamine.

He was caught red-handed in the final stages of the process. Every other room of the house was used in some way or another for the illegal drug manufacturing activities and/or the storage of ingredients.

Liars Are Known to Steal - Click here for funny video clips

The NDPP has every legal right to have accused me of committing a criminal offence and to have instigated criminal proceedings against me but in terms of the Constitution it has no compelling legal right to bring any civil action against me during the proceedings of that same criminal trial when the civil action is being based in its entirety upon exactly the same accusation.

On Wednesday 31^st of January 200I Captain Smit accused me of dealing in drugs. More than three years have transpired since then and through suspicious circumstances beyond my control, I am still in the midst of those proceedings. I say suspicious because the circumstances were beyond my control but they were not beyond the control of the justice department.

Because I am an accused person and because I currently find myself in the midst of those proceedings and because of section 35(3) (h) of the Constitution I am an innocent person. Erasmus forfeited my house to the state because he is an incompetent judge because he has ignored his obligations imposed by section 35(3) (h) and other sections of the supreme law but if section 35(3) (h) is applied then it becomes obvious to any person who can interpret and understand the yearly calendar that in legal terms according to the Bill of Rights that I am an innocent person which consequently means that my prospects of a successful appeal before a competent court are automatic.

I have every civil right to proclaim my innocence during the proceedings of my criminal trial and I am not violating any person’s civil rights by doing that. Mrs. Rabaji on the other hand is quite clearly violating my civil rights by making a public proclamation outside of my criminal trial and during the proceedings of that criminal trial that I am “undoubtedly” guilty of being a methamphetamine manufacturer. Section 35(3) (h) prohibits her from making any such proclamation in the current circumstances. Her disregard for section 35(3) (h) is an open admission that she is in contempt of the Constitution.

Mrs. Rabaji makes slanderous statements about methamphetamine in that it is a “very addictive and dangerous drug”. Methamphetamine produces a pleasurable sensation and is therefore habit forming but it is not true to say that it is an addictive drug. Her inclusion of the word “very” calls for an explanation. This adjective is relative to the extreme and is presented as a subtle but dirty verbal trick to emotionally distort the truth and to put me in a derogatory light. I have never manufactured an addictive or dangerous drug. Much less have I ever manufactured a very addictive or a dangerous drug. Mrs. Rabaji has no experience and no understanding and no legal right (at this point in time and outside of my criminal trial) to create the illusion that I have ever done any such thing.

Drugs interfere with the endocrine system and tragically cause the death of healthy brain cells and because of that I deplore the use of any drug but outside of what I have said methamphetamine is not dangerous. Millions of people all over the world have used this drug that has a history of more than 50 years and so far as I am aware there has never been a single recorded death related directly to methamphetamine. There are no known harmful side effects of using this drug in moderation and there are no known harmful withdrawal symptoms when people discontinue using this drug.

Mrs. Rabaji is not being truthful to say that I “was caught red handed in the final stages of the process” (of manufacturing methamphetamine) because what she is saying is inconsistent with the forensic report.

If I had been caught “red handed in the final stages” of manufacturing the drug then the forensic report would have shown abundant evidence of the drug but that is not what the forensic report reveals. The forensic report showed that no methamphetamine was found.

The final stage of growing tomatoes is when you can see the tomatoes on the bush. The difference between a tomato bush and industrial chemicals is that with a tomato bush there is only one conclusion whereas industrial chemicals have multiple applications.

R A B A J I

paragraph 9,1

P R O P H E T

reply paragraph 9,1

In the main proceedings Prophet complained that the NDPP’s object in persisting with the application was not simply to secure from the Court a favorable decision on the merits, but to use the application as a stalking horse, that is to obtain a favorable decision, for use in future cases, on the question whether forfeiture applications can be made and or persisted with while criminal proceedings arising out of the same facts are pending. The NDPP conceded that in this sense the present matter was being used as a test case. I respectfully submit however that there is nothing wrong in that (cf. Simelane v Seven-Eleven Corporation [2007] 1 All SA 82 (SCA) par 36-37.

There is nothing legally wrong in attempting to set a precedent that entitles any organization or person to presume another person’s guilt if that person has not been criminally so accused. The moment a person becomes accused of a crime then the Constitution places clear limits on how that person is to be treated during the proceedings of the trial.

If during and outside of the proceedings of his criminal trial some person does not presume his innocence and proceeds to publicly falsely proclaim his guilt then any such action violates section 35(3) (h) of the Constitution. The Constitution is not some vague by law of an unheard of municipality. It is the supreme law of the Republic of South Africa. The NDPP, Mrs. Rabaji and Mr. Erasmus have no authority to make any attempt to reinterpret it. There is no quotation in existence that has the sufficient authority to entitle Mrs. Rabaji or Mr. Erasmus or anyone else to disregard the Constitution. There is no practical way to “respectfully submit” to any court of law that is bound by our Constitution any procedure that violates civil rights.

In terms of this being a “testcase” Mrs. Rabaji is perhaps unaware that the Constitutional Court has ruled that the Asset and Forfeiture Unit cannot use the Prevention of Organized Crime Act in a manner that violates the Bill of Rights. To inflict suffering on me during the proceedings of my criminal trial is psychological and emotional torture and is prohibited by section 12(1) (d) of the Bill of Rights.

Even the Prevention of Organized Crime Act indicates a guide line as to how this act should be implemented. In the 7^th paragraph of the preamble it says and I quote “AND WHEREAS common law and statuary law fail to deal with organized crime…”

I am not involved with organized crime but Mr. Erasmus has no basis to suggest that in my case, common law and statutory law has failed because I am an awaiting trial person. Within the guidelines of the Prevention of Organized CrimeAct itself there is no basis for NDPP to implement the Prevention of Organized Crime Act against me and there is no basis for Mr. Erasmus to rule against me or has Mr. Erasmus looked at the evidence against me and realizing that it is substandard has, in the interest of his interpretation of justice, altered the evidence a little so that in a civil trial he can parade me as a drug dealer and then punish me in the event that I may have been guilty because he has already determined that my criminal trial cannot survive?

No one may be deprived of property and no law may permit arbitrary deprivation of property.

RETROSPECTIVE PROPHET COMMENT:

You could say that I was acquitted in the first criminal trial (case number 16/79/2001) on a technicality. One of the assessors refused to continue with the trial and it was set aside which automatically meant that I was acquitted.

A Cape Town High Court judge determined that I would be tried in a second criminal trial (case number 16/23/03) and I wrote this affidavit before my second criminal trial was concluded but by this time I had studied the Drugs and Drug Trafficking Act and I knew with certainty that I had not violated any drug law in my scientific exploits.

The state dragged both of the criminal trials for as long as it could (four and a half years) but after I had discovered the Erasmus lies in his judgment against me I knew that I was not guilty and in 2005 the second criminal trial was finally concluded and I was found to be not guilty.

The failure of the first criminal trial to reach a conclusion after I had put in a plea of "not guilty" laid squarely on the part of the justice system yet I have never been compensated for the loss of my money that was wasted on legal fees dedicated to the first criminal trial. In the second criminal trial I had to pay a new legal team to cover the same ground in the second criminal trial after the collapse of the first criminal trial and all efforts on the part of two different legal teams to recover my financial losses of more than R50 000 were in vain.

R A B A J I

paragraph 9,2

P R O P H E T

reply paragraph 9,2

Moreover, in view of the following facts and circumstances the question had to be addressed by the NDPP and the Court a quo (see paragraphs 5 and 6 of the judgement). When the matter was called in the High Court for the first time on 18 March 2002, His Lordship Mr Justice Thring (to whom the matter had been allocated at that stage) queried whether an order in terms of section 50 of the POCA may be made in advance of any criminal proceedings to which the facts in issue in the civil proceedings in terms of section 50 give rise. The NDPP delivered further affidavits and supplementary heads of argument dealing with this point in which he submitted that section 50(4) expressly contemplates and sanctions the granting of an order for the forfeiture to the state of property that is an instrumentality of an offence referred to in Schedule 1 before any criminal proceedings in re3spect of that offence are instituted or, if instituted, determined. The NDPP also pointed to the practical importance of preserving the disconnection between civil forfeiture proceedings and any criminal proceedings in respect of an offence with which the property concerned is in some way connected, and in particular for the High Courts to hear and determine applications for civil forfeiture before any such criminal proceedings are concluded. The delays in finalizing criminal matters, specifically in the lower courts, are notorious and are borne out by the facts in this case. If forfeiture proceedings are suspended until determination of any related criminal proceedings, the resultant delay may adversely affect all concerned.

In paragraph 5 of the judgment Erasmus shows the distinction between civil and criminal proceedings. I am being tried twice with exactly the same evidence. The evidence that supports the civil trial is identical to the evidence that is supporting my criminal trial. All the NDPP had to do was make photocopies. If I was guilty and Mr. Erasmus finds me guilty and the criminal court was to have found me guilty then two courts will have found me guilty for the same crime and I would have been made to suffer two punishments for the price of one crime and there is little social justice in that.

In paragraph 6 of the judgment Erasmus focuses on “delay” and quotes from the NDPP v Mohamed and others. I did not read this but I have read the quotation that Erasmus provides which refers to “criminals” and Mr. Erasmus must be made to see that I am not a criminal. Mr. Erasmus must be made to see that his misinterpretation of the Drugs and Drug Trafficking Act does not make me a criminal. It is not in the “domestic interest” for a judge to treat a man as though he were a common criminal when he is not.

The Constitution does endorse an obligation to what is happening overseas and an obligation to what is in the public interest but it does not endorse flagrant violations against the rights as entrenched within the Bill of Rights.

The most important fact that Mrs. Rabaji is overlooking is that no methamphetamine has been found at 54 Balfour Street .

The drug police maliciously broke into my home without the probable cause to violate and desecrate the sanctity of my home and with a search warrant that has subsequently been deemed to be invalid. After the organized criminal action of the drug police I was not found to be manufacturing methamphetamine and no illegal thing was found by the drug police and when that becomes a conclusively proven fact in the forthcoming criminal trial then the initial wisdom of Mr. Justice Thring of do not put the cart before the horse will become evident.

I have not revealed what I was doing when I was arrested and I have the civil right to withhold that information until my criminal trial and short of electric shocks there isn’t anything the NDPP can do about that but when the time is right I will reveal all and the magistrate in my criminal trial is going to rule that what I was doing was within my legal rights and he is further going to rule that all of my equipment and all of my chemicals be returned to me and that I can continue with my scientific research at my leisure and at my pleasure and when that happens how is Erasmus or anyone else going to explain why my home was forfeited? If the forfeiture of my home is not stopped and if my ownership of my own home is not confirmed then it will be a calamity for our beautiful country.

R A B A J I

paragraph 9,3

P R O P H E T

reply paragraph 9,3

That is not to say the NDPP had no interest in succeeding on the merits of the application. On the contrary, the NDPP regarded success on the merits as very important.

There are no “merits” of the NDPP application to deprive me of my property. The entire application is without justification and violates whole sections of the Bill of Rights.

Even Mr. Hodge who has negotiated to buy my house from the Asset and Forfeiture Unit has agreed with me that if I am innocent of the charges then it will not be right if my home is taken from me.

No one may be deprived of property and no law may permit arbitrary deprivation of property.

R A B A J I

paragraph 10

P R O P H E T

reply paragraph 10

There is no merit in the complaint that even if a forfeiture order may be made in advance of related criminal proceedings, in the instant case the Court a quo should in the exercise of its discretion have stayed the forfeiture proceedings until those criminal proceedings were concluded. This complaint is dealt with fully in paras 7 to 11 of the Judgement. Prophet concedes that the refusal of his ‘application’ for a stay was an exercise of a discretion by the Court a quo. He does not however allege, as he is bound to do if he is to have any prospect of success with this complaint, that the Court a quo exercised its discretion capriciously or upon a wrong principle, or that it did not bring its unbiased judgement to bear on the question or did not act for substantial reasons (Ex Parte Neethling and Others 1951 (4) SA 331 (A) at 335)

Any competent judge with a modicum of rightfulness would immediately recognize the unfairness of any trial where the applicant has unlimited finances and resources but the respondent is struggling with the day to day problems of finding the money to put food on the table. Staying the forfeiture proceedings would at the least have given me a chance to catch my breath in terms of securing the money needed.

From a single accusation and from the identical accusation I have been forced into 2 criminal trials, 1 civil trial and 2 appeals. This appeal is leading to a 2^nd civil trial and if it is unsuccessful will result in a 3^rd appeal and a 3^rd trial in the Constitutional Court . Who in their proper mind could condone the unfairness when at this point in time I’m still waiting for the criminal charge sheet?

A constitutionally competent judge would have used section 35(3) (h) to balance out the unfairness that is being deliberately displayed by the NDPP.

To date I have spent in excess of R150 000 on legal fees which exceeds the equity of what my home has been sold for. (My home bond is R100 000). On the 21^st November 2003 the Legal Aid Board refused to come to my assistance and I consider this to be an injustice because I have been forced to sell my inheritance to meet legal costs and am rapidly becoming impoverished as a direct result of the NDPP and Erasmus both of whom have flagrantly violated multiple sections of the Constitution.

RETROSPECTIVE PROPHET COMMENT:

Both the Supreme Court of Appeal and the Constitutional Court did not read the above paragraph (see green highlight). Both civil courts alluded to other property that I own. All of the judges in the Supreme Court of Appeal and the Constitutional Court failed to read that I had said clearly that I had sold my inheritance to meet court costs.

In paragraph 67 of the Constitutional Court judgment the judges failed to read that

I have been forced to sell my inheritance

and the judgment says that “The forfeiture will not leave him destitute because he receives rentals in another area.” Not true! Legal costs forced me to sell my inheritance. This in clear view. Why did the judges not take the trouble to read my affidavit?

When I was arrested in 2007 and evicted from my home I was taken away in handcuffs in full view of the customers in the restaurant opposite my home and dozens of curious spectators standing in the road. I was arrested on a false charge of being in possession of an illegal firearm and ammunition. My current and still legal valid firearm license was issued on the 13^th of January 2003 but the police refused to admit that the gun belonged to me. I suspect that the Asset and Forfeiture Unit motivated the police to arrest me so that when I was evicted from my home then anyone who was watching would perceive me to be a dangerous criminal.

Being evicted from my home was the worst thing that happened to me during these trials. I had considered such to have happened but I also considered that I would still have my cars. I had planned to let the kids sleep in the one car and I would sleep in the other but the state made certain that that option was also taken from me. In the same afternoon the state seized and removed both of my cars. My furniture was also seized and everything was auctioned off to further enrich Willie Hofmeyr.

I made several attempts to buy back my things from the Maitland Sheriff office but every attempt was rejected. I have video footage of the Sheriff telling me that I could not buy my things because he had a court order to sell everything.

So much for section 25 of the Bill of Rights that says that no one may be deprived of property! Why did the state steal my cars and my furniture?

When I was released from the prison cells I walked out into the road with nowhere to go. My family had been dispersed to I did not know where and I was wearing just the clothes on my back. I had my cell phone but I had no charger or a place to charge the phone so the battery ran dead.

The judges have not seen the final consequences of depriving me of my property. Making a remark about me not being left destitute may look good on paper but the judges have misrepresented the facts that were placed before them and they have misunderstood the final outcome of the forfeiture. The forfeiture of my home has left my family destitute but do you think that any of the judges have sleepless nights when they sleep in their warm beds in their comfortable homes? I doubt it.

The deprivation of my property has been an act of extreme cruelty not only towards myself but also towards my family.

The week that I was evicted from my home, Cape Town was experiencing a severe drop in temperature and there was snow on the mountains. That week I slept at night on the floor of a horse stable.

R A B A J I

paragraph 11, 1

P R O P H E T

reply paragraph 11, 1

In the main proceedings Prophet contended that the NDPP’s forensic analyst (who tested the substances on the premises) did not qualify himself as an expert and that Venter did not demonstrate that his instruments were reliable.

The content is noted.

R A B A J I

paragraph 11, 2

P R O P H E T

reply paragraph 11, 2

The point now raised was dealt with in paras 17 to 18 of 5the Judgement

Paragraph 17 and 18 of the judgment is conclusive proof that Erasmus has used civil court proceedings to destroy my dignity by publicly declaring that I am a drug dealer in the last sentence of paragraph 12.

R A B A J I

paragraph 11, 3

P R O P H E T

reply paragraph 11, 3

Venter did qualify himself as an expert. The evidence relevant to this is in the following excerpts from the papers:

1) Venter founding affidavit 26:2

2) Prophet answering affidavit 210 to 211

3) Venter supplementary affidavit 376 to 377:2,1.

Mihalik told me that in terms of law Venter did not qualify as an expert witness and that his testimony could not be permitted. I believed him and that is one of the reasons that I did not challenge Venter with an expert in my defense. Without the speculation being presented by Venter the NDPP are without a case.

R A B A J I

paragraph 11, 4

P R O P H E T

reply paragraph 11, 4

Venter did show that his instruments were reliable. See Venter further supplementary affidavit 411 to 412:6 to 11.

Mihalik told me that specific procedures were required to be followed each time the equipment was used to determine its reliability. Annex JR4 does not show that Venter followed these procedures each time he tested different exhibits and that is why the reliability of the equipment was denied.

R A B A J I

paragraph 11, 5

P R O P H E T

reply paragraph 11, 5

Venter repeatedly tendered the exhibits for analysis by Prophet’s experts. See Venter supplementary affidavit 370:6 and Venter further supplementary affidavit 412:12. Prophet did not avail himself of the opportunity.

Mrs. Rabaji makes a casual statement that I didn’t avail myself of the opportunity to let my experts analyze the exhibits that Venter repeatedly tendered. Mrs. Rabaji enjoys the privileges of unlimited financial funds and readily available resources. She is not held personally accountable for money that she may waste so it is easy for her to spend whatever her fancy dictates. I on the other hand am not so fortunate. To me money matters because I am personally responsible for every action in my life and I must therefore carefully weigh up what is possible in terms of what I can afford.

I do not have one expert much less many experts. My previous lawyer Mr. Snitcher did approach an expert by the name of Klatzo and I was told that his fees were R1 000 per hour. I am not made of money. I was already embroiled in legal fees to defend against the criminal accusation. Mihalik charged me R48 000 for the civil trial. To have to add to that paying another person R1 000 per hour for what could take several weeks is hardly what I would refer to as an opportunity.

Mrs. Rabaji knows perfectly well that as an ordinary citizen I can’t afford to employ lawyers, advocates, experts and translators and fight four major court cases all at the same time. The NDPP is deliberately trying to impoverish me.

R A B A J I

paragraph 12, 1

P R O P H E T

reply paragraph 12, 1

This point, which goes to the heart of the matter, is dealt with in paras 20 to 26 of the Judgment (the law) and para 27 (the facts).

The heart of the matter is that subsection 22 of schedule 1 of the Prevention of Organized Crime Act is being used to justify implementing section 50(1) a of the Prevention of Organized Crime Act against me but what the NDPP and Erasmus are overlooking is that I have never been convicted of contravening any part of section 13 of the Drugs and Drug Trafficking Act. Nor have I ever been convicted of conspiring to contravene any part of any section of the Drugs and Drug Trafficking Act.

The heart and the absolute truth of the matter is that I have never been convicted of violating any subsection of any part of schedule 1 of the Prevention of Organized Crime Act and that I am not involved in any organization much less a criminal organization.

In 2001 the NDPP charged me with contravening the Drugs and Drug Trafficking Act. In that criminal charge the NDPP also charged me under the Riotous Assemblies Act No. 17 of 1956 but I doubt that I ever will be convicted because the Riotous Assemblies Act is a product of the racist regime of 1956. It is a racist act and is out of place in a non racial and a constitutional democracy which is what South Africa is striving hard to maintain. I have been told that it was the Riotous Assemblies Act that put Nelson Mandela into jail.

With regard to paragraph 20 of the judgment 54 Balfour Street is not a criminal asset and it is not an instrumentality. It is a venue. It is a place and that is all. There is no intrinsic relationship between a residential (or an industrial) property and methamphetamine. A traveling illegal drug manufacturer would simply move to a new venue. He would not be under some compulsion to carry his old venue around with him because his capability as a drug manufacturer is not determined by the venue.

In paragraph 26 Erasmus refers to “the critical question” as to whether a property has been tainted by the facts. 54 Balfour Street has not been tainted by my actions. It has been tainted by inappropriate and unlawful presentations of the media, the NDPP who falsely accused me of being a drug dealer and then prematurely placed a preservation order on my home and by Erasmus who misinterpreted the DDT Act, failed to presume my innocence and entered false evidence against me to publicly proclaim that I am a drug dealer during the proceedings of my criminal trial.

Mrs. Rabaji refers to these two paragraphs as the “law”. With regard to the “law” section 25 of the supreme law of South Africa does not say “A drug dealer may be deprived of property if on a balance of probabilities…”

Section 25 says that “No person may be deprived of property…”

“No person” is all encompassing. It includes every person including even drug dealers. It even includes dangerous drug dealers and it even includes very dangerous drug dealers. If you think about it everyone has to live somewhere. I am not a drug dealer but Erasmus has inhumanly violated my civil rights by declaring that I do not have the right live in my own home. He has attacked and destroyed my dignity and that is not in the public interest because it has the potential to promote acts of terrorism and terrorism is not in the public interest.

Whatever is happening in Australia or America does not have the power to override our Constitution. There may be states in America that condone and promote public executions but that does not permit the NDPP or any judge to violate section 11 of the Constitution. As it stands now the law says that everyone has the right to life and consequently no judge can quote foreign trials that condone executions and then in South Africa sentence a person to be executed. Our Constitution does not allow the death penalty.

Similarly section 25 of the Bill of Rights says that no person may be deprived of property. Consequently no judge can quote an obscure trial and then violate section 25 of the Bill of Rights because our Constitution does not allow any law to arbitrarily deprive a person of property.

Mihalik did not highlight section 25(1) but this is no excuse for Erasmus. In paragraph 10 of the judgment Erasmus suggests that I rely on section 35(5) of the Bill of Rights. How benevolent of him after he has violated my rights in terms of section 25(1).

Civil forfeiture is definitely not condoned by our Constitution and section 25 is clear for all who have the slightest ability to comprehend. Laws that are inconsistent with the Constitution are “invalid”. Why does Erasmus quote an obscure legal action in paragraph 20 and ignore a supreme law? Is it possible that he is unaware of section 25 of the Constitution?

Mrs. Rabaji places “the facts” in brackets behind paragraph 27. In the world of probabilities facts dispose different things to different people. Erasmus has used a set of facts to arbitrarily arrive at a conclusion. I disagree with him but he is the judge and this is a civil trial so there isn’t much I can do about that but Mrs. Rabaji is mistaken to refer to his conclusions as the facts. Erasmus has through his own incompetence agreed with the NDPP’s misinterpretation of the DDT Act and he has been nefariously motivated to rule against me and I can prove that because what prompted him to enter false evidence about me and present that as a fact?

Fortunately I am protected by section 25(1) of the Bill of Rights which prohibits any law to arbitrarily deprive a person of property. Are the NDPP and Erasmus in need of glasses? Would it help if they heard section 25 of the Bill of Rights on audio tape?

No one may be deprived of property and no law may permit arbitrary deprivation of property.

R A B A J I

paragraph 12, 2

P R O P H E T

reply paragraph 12, 2

The following papers set out in detail what was found where in the house. Venter founding affidavit 26 to 27:3 and annexures A and B 32 to 54. This evidence must be read with Smit founding affidavit 20:6.

I believe that Erasmus is motivated by a desire to fight crime and I applaud him in that and I understand why he was motivated to forfeit my house but he should have spoken to me before he made his decision and he should have looked into my eyes and he did not and in that I cannot applaud him. Armed with pieces of paper he falsely declared that I am a criminal and stripped my home from me and I am not in agreement with that.

I was introduced to him on paper as an alleged drug manufacturer and then he was shown the photographs of annex JR8. It would have been impossible for any normal person not to have made an automatic mental association and photograph after photograph would have confirmed the introduction. How could he have seen it any other way? Even every lawyer who has worked with me has looked at the photographs and without fail reacted in the same way that Erasmus must have reacted. If my own lawyers who are being paid to protect me look at those photographs and through the association of drug dealer are doubtful about my innocence then is it any wonder that the whole world will react in the same way? If I had been introduced as a scientist then no person would have automatically said that I am a drug manufacturer by looking at the same photographs. Unfortunately national television introduced me to millions of viewers as a drug manufacturer and I am now faced with a seemingly impossible task of overturning the first powerful impressions as they were presented by the media and the NDPP and there is only one fair place where I can do that and that is in a criminal court because the burden of proof will protect me. All I can say in this civil hearing is that yes the photographs do look menacing but there is not one illegal thing in any photograph and the forensic report confirms what I say because no traces of any illegal drugs were found. I am a scientist and a civil court is not a fair place for me to defend my innocence.

R A B A J I

paragraph 12, 3

P R O P H E T

reply paragraph 12, 3

The Applicant admitted this evidence. See Prophet answering affidavit 187:36 and 206:61

It is unclear what “evidence” is being referred to. I am English speaking.

R A B A J I

paragraph 12, 4

P R O P H E T

reply paragraph 12, 4

It is clear from this evidence that every room of the house was used for the illegal drug manufacturing activities and/or the storage of the ingredients. The house was therefore used directly for the commission of the serious offence of illegal drug manufacturing, or at the very least to further the commission of the offence. See S v Bissessue 1980 (1) SA 228 (N) 230B-C; National Director of Public Prosecutions v Seleoane [2003] 3 All SA 102 (NC) para 35.

Mrs. Rabaji is again violating section 35(3) (h) of the Constitution by declaring that I am a drug dealer during the proceedings of my criminal trial and outside of that criminal courtroom.

The scientific equipment that Venter has used has awe inspiring capabilities. We are not talking about Sherlock Homes’ famous magnifying glass here. Archeologists have used Venter’s equipment to determine the levels of cocaine consumption of Egyptian mummies that are long dead and have been rotting for 5 000 years.

If armed with such scientific prowess and if his instruments were reliable and if he was a competent expert who was looking for methamphetamine but was unable to find any methamphetamine on any part of an entire laboratory then what conclusion can be reached in terms of the laboratory? Can we logically conclude that the equipment was used to produce methamphetamine or can we logically conclude that the equipment did not produce methamphetamine? What would an archeologist conclude? On a balance of probabilities what should we conclude?

I have never been convicted of contravening any part of section 13 of the Drugs and Drug Trafficking Act or any part of any subsection of schedule 1 of the Prevention of Organized Crime Act.

R A B A J I

paragraph 12, 5

P R O P H E T

reply paragraph 12, 5

Prophet now contends that the forfeiture of the house is disproportionate. That is denied. The evidence relevant to this issue included evidence (which was uncontested) that methamphetamine is more physically addictive than heroin, that its abuse produces a toxic psychosis resembling schizophrenia and that at the time it was the most expensive drug on the market – in April 2002 it sold for approximately R700 per gram. See Smit supplementary affidavit 488-491:2027. There was also evidence (albeit disputed) that the quantity of chemicals found at the house was sufficient to synthesize 400 to 600 grams of methamphetamine. See Venter founding affidavit 29,6 and Prophet answering affidavit 207:64

Venter’s analysis of the chemicals found at the house showed the chemicals to be legal. It is his speculation as to what the chemicals were to be used for that is in dispute and any person who claims that I intended to use those chemicals to violate any section of the DDT Act during the proceedings of my criminal trial and outside of that criminal court room is violating section 35(3) (h) of the Constitution in that any such claim is violating my civil right to presumption of innocence during the proceedings. After the proceedings any one can say whatever they wish but not during.

This should be clear to any person. It should be especially clear to judges, advocates and the director of public prosecutions and if it is unclear to any of them then someone should point out to them that they are in contempt of the Constitution when they violate any section of the Bill of Rights. Why should I as the accused person who is struggling to make ends meet have to be held financially accountable and be forced into a constitutional court room to prove that section 35(3) (h) exists? Does it or doesn’t it exist? If I have to go to the Constitutional court to prove that it does exist and I do prove that it is a law and that it does exist and that it must be applied then will any person who through any such dispute with me has caused me to go to the constitutional court to make my point heard be held accountable for having wasted my time and my money? Section 25 is also a valid law and it is also my constitutional right to prove that if I must and if I must then I will.

Methamphetamine is not any more addictive than Coca Cola or coffee. It is ridiculous to suggest that methamphetamine is more physically addictive than heroine but any so called “seriousness” of my alleged crime is not an issue in terms of my civil rights. Section 35(3) (h) applies specifically to all accused persons irrespective of the “seriousness” of the accusation. Mrs. Rabaji’s attempt to make me look like a dangerous criminal during the proceedings of my criminal trial and outside that court room is violating my civil rights as an accused person.

Mrs. Rabaji is speculating to say that “the quantity of chemicals found at the house was sufficient to synthesis 400 to 600 grams of methamphetamine”.

From Mrs. Rabaji’s annex JR12, Venter indicates in “Tabel 1” that “asynuuranhidried - Wat is op die toneel gevind – geen”. He goes on to say “slegs aankoop bewys – aanhangsel D”. What he does not include to say is that the “aanhangsel D” was not found at the house. The “aanhangsel D” was found in a factory in Airport Industria.

In her annex marked JR12, Venter elaborates on a formula that requires acetic anhydride to produce 1-phenyl-2-propanone and he also testifies that no acetic anhydride was found on the property. Has it occurred to Mrs. Rabaji that in terms of the chemicals found in conjunction with Venter’s proposals as to how 1-phenyl-2-propanone is manufactured that it would have been impossible to produce 1-phenyl-2-propanone from the chemicals found at the house because according to Venter’s affidavit no acetic anhydride was found? How does it follow that the formula that I was supposed to be using to manufacture methamphetamine requires 1-phenyl-2-propanone and that, according to Mrs. Rabaji, I was in the final stages of making 300 to 400 grams of methamphetamine but according to annex JR12 the chemicals found at the house could not have produced even one tenth of one gram of 1-phenyl-2-propanone. Mrs. Rabaji refers to Venter’s evidence as being “albeit disputed” but if his evidence contradicts what she is saying then is she suggesting that he lied?

On annex JR12, Venter speculates about the volume of methamphetamine that could have been manufactured. No methamphetamine was found at the house and not even one forensic trace was found on any part of an entire “laboratory”. Several chemicals are listed on annex JR12 but not one of those chemicals is accompanied by the volume in which it was found except for acetic anhydride for which the volume is recorded as “geen” so we are only left to wonder how Venter arrived at such an accurate volume for the drug that was not found.

Without going further than Mrs. Rabaji’s own annex which she supplies to support her speculation it can be shown that what she is saying is not true.

No drug or cash was found in my home and the drug police confiscated my personal diaries that go back more than five years and there are no phone records, appointments or any information on any page of any of those diaries to support any theory that I was ever involved in any organized criminal activity to sell or to make arrangements to sell R300 000 or R400 000 worth of methamphetamine.

In paragraph 7 of Swart’s affidavit he says “Nicola Daniels also disposed in my presence of what I believe could have been packaged metamphetamine down the toilet.” Swart was testifying about a search that he conducted in my home in February 2000.

Mrs. Rabaji has courteously provided a photograph of the said toilet in her annex JR8 “foto 1”. Have a look at the photograph and try to imagine where Mr. Swart was standing when he saw what he says he saw and then consider in terms of the protection of women’s rights what Mister Swart was doing alone with Miss Daniels in the toilet?

I doubt that any such incident ever happened but if it did then Swart’s eyes must be akin to those of the comic hero Superman. Any reasonable person can conclude that he was lying but if what he says was true then I must have been put under intensive investigation. So much is open to speculation but if I was under investigation then how would it have been possible for me to slip through the fingers of the drug police and sell R300 000 or R400 000 worth of methamphetamine? If I was dealing in such volumes of illegal drugs then how is it possible that over a one year period between the time that Swart is supposed to have seen the packaged methamphetamine being thrown into the toilet and the time that Smit entered illegally into my home that the drug police did not have the names and addresses of the people who would have had to have been a part of the criminal organization to which I would have had to have belonged?

With a volume of R300 000 to R400 000 worth of drugs there would have to have been several distributors involved. Is the NDPP going to also speculate that I was the manufacturer and the sole distributor all at the same time and in the absence of buyers is the NDPP going to suggest that as the manufacturer I was going to sell the stuff to myself? Everything coming from the NDPP is speculation and there is nothing to support any indication that I was involved with any criminal organization or any gang or any gang members or even one member of any gang. How was it possible for Erasmus who is a high court judge not to have considered these implications.

In terms of the Prevention of Organized Crime Act a “criminal gang” includes any formal or informal ongoing organization, association, or group of three or more persons, which has as one of its activities the commission of one or more criminal offences, which has an identifying sign or symbol, and whose members individually or collectively engage or have engaged in a pattern of criminal gang activity.”

After at least one year of investigation that we do know about before Smit maliciously broke into my home Mrs. Rabaji is unable to present any information that places me anywhere in the above definition from the Prevention of Organized Crime Act. There are four distinct conditions that are needed to draw a person into the definition of a “criminal gang” and I do not subscribe to any one of those conditions. Not one.

Case No. 5926/2001 was a perverted attempt by the NDPP to use the proceedings of a civil court to legally falsely and unconstitutionally proclaim that I am a criminal and Erasmus played along.

Smit’s interpretation of the illegal drug world or Venter’s list of chemicals that were found in my home does not advance any point that I am involved in organized crime.

The market value of my home is R350 000. I have never said that the value of R300 000 or R400 000 of illegal drugs is disproportionate to the value of my home. Clearly the figures are very compatible. What is not compatible is that illegal drugs are criminal assets but my home is not a criminal asset and according to the 5^th line of the preamble of the POC Act the civil forfeiture of assets that have been used to commit an offence only applies when the asset is a criminal asset and my home may be inanimate to some or it may be animate to others as is apparent in paragraph 23 of the judgment but I will not allow any person which includes Erasmus to refer to my home as a criminal asset unless they can prove what they say in a proper court of law.

When I made the statements that referred to the disproportionate relationship between the value of a sample of 1-phentyl-2-propanone and the value of my house I was unaware that 1-phenyl-2-propanone is not illegal. Afraid of the consequences of being in possession of an illegal substance and unaware of section 25(1) of the Bill of Rights I said in the defense of my home that the value of such a sample found in the toilet bowl is out of proportion to the value of the whole house which quite clearly it was.

R A B A J I

paragraph 13

P R O P H E T

reply paragraph 13

There is no merit in the contention that the decision of the court a quo was based on hearsay evidence. The facts on which it was based were set out by those directly involved.

No facts of any wrong doing against me exist. The facts concerning me have been distorted and the so called criminal evidence against me is entirely speculative. Erasmus has taken speculative assumptions about me that have been built on assumptions of assumptions. Most shocking is that Erasmus is guilty of gross misconduct in that he has lied about me. The NDPP has never accused me of importing a drug and I never have imported a drug but in paragraph 12 of the judgment Erasmus says that I did.

R A B A J I

paragraph 14

P R O P H E T

reply paragraph 14

There is no merit in this contention, which is apparently based on speculative allegations about making and presentation to the magistrate of the investigating officer’s affidavit used to obtain the search warrant. The allegations were refuted by the investigating officer and the commissioner of oaths. See Prophet answering affidavit 180 to 182:28.1 to 28.13; Smit replying affidavit 347 to 351:6 to 15; Januarie affidavit 402 to 404 and Smit supplementary affidavit 405 to 407.

It is understandable that Smit will deny any allegation that he is guilty of perjury and it comes as no surprise to me that his colleague will protect him and I do feel sorry for both of them. When Mihalik brought these things to my attention I asked him not to mention them in court because I didn’t want Smit to get into trouble and I remember Mihalik looking at me as though I was insane but this trial has aroused a harshness in me and whether Mrs. Rabaji likes it or not the issues of the search warrant are no longer open to speculation because the magistrate in the pre trial hearings of my criminal trial in the Cape Town Magistrate’s court deemed the search warrant to have been “improperly obtained” and he further deemed that it was “invalid”. At the pretrial hearings Mihalik complained to the magistrate that Smit’s affidavit to obtain the search warrant was without substance and that it was misleading. The magistrate said that not only was it misleading but that it was “reprehensible”.

I stand corrected but if I am not mistaken I think the affidavits that Mrs. Rabaji refers to in annex JR 15, 16 and 17 were submitted to the High Court before the matter had been heard in the magistrate’s court. It was at about this time that the assessor walked out and the criminal trial was aborted. It is my humble contention that had the pre trial hearings been concluded then the evidence that was as yet unheard would have resulted in establishing that the presence of the drug police in my home was illegal. The substandard evidence that resulted from that search would have had to have been struck and would have ended my criminal trial and would also have been a blow of death for the NDPP in the civil trial.

The criminal trial awaits and I have still the opportunity to test my contentions but if my contentions turn out to be true then what will happen to Mrs. Rabaji’s merit?

RETROSPECTIVE PROPHET COMMENT:

LIES. LIES and more LIES. No evidence of any kind was presented in the civil trials. All that was presented were affidavits most of which were compiled by drug policemen some of whom have been shown to have lied under oath.

The final outcome of my criminal trial has proven my point beyond the shadow of a doubt. The organized criminal action of the state has been proven to be true. The presence of the drug police in my home was “unlawful”. It is now a proven fact that the Asset and Forfeiture Unit used “unlawful” affidavits in its action against me.

Raymond Joffe lied on national radio when he said the evidence that was used against me in the criminal trial was different to the evidence used in the civil trial. He lied to protect Erasmus and the civil court judges.

Affidavits, without being tested in a proper court, are not evidence of anything but if we are going to refer to such as evidence then let me say that this evidence was identical to that of the criminal court and the search warrant that was used to enter my home was determined to be invalid in no less than two criminal trials presided over by two different magistrates. In the second criminal trial the so-called evidence had been established to be “unlawful” “beyond a reasonable doubt”!

It was infuriating for me and it was as much as I could to stop myself from getting up and punching Trengrove in the nose while I had to sit quietly in the Constitutional Court and listen to Trengrove speculating with so much confidence about all that I was supposed to have been doing. Everything about me of which he spoke was third hand to him. Trengrove had absolutely no first hand knowledge of anything about me but the way that he spoke to the judges anyone would have thought that he had been the fly on the wall.

It was a sad day in the history of South African justice that, Trengrove, with his lies and his wild speculation was not booted out of the court room.

R A B A J I

paragraph 15

P R O P H E T

reply paragraph 15

The NDPP did not include a prayer for costs in his notice of motion in the forfeiture proceedings.

The preservation order however reserved the costs of those proceedings for later determination.

The NDPP then applied for costs in his main and replying heads of argument. See the NDPP’s main heads 20.47 to 48 and the NDPP’s replying heads 8:18.

Prophet himself applied for costs. See Prophet’s heads and Prophet’s supplementary heads 11:35.

I submit that costs normally follow the result and it is accordingly not strictly necessary to include a prayer for costs. This is demonstrated by the fact that costs may be awarded in default judgment cases where the plaintiff or applicant has not prayed for costs, subject only to procedural safeguards to ensure that the defendant or respondent is not prejudiced.

The fact that there was no formal application to amend the NDPP’s notice of motion is of no moment. Given the prayers for costs in the NDPP’s and Prophet’s heads, t5here can be no doubt that the question of costs was canvassed on both sides in the sense that the court was expected to pronounce on it as an issue.

It is the NDPP’s intention to impoverish me. At the real risk of becoming impoverished I have undertaken to defend and establish the innocence of my home and I think it is unfair that the NDPP employ one of the highest paid advocates in South Africa and then ask me to finance their choice of advocate if I loose this case? The NDPP has forced the civil trial upon me. From a single accusation which will be proven to be false I am being made to pay for four trials all at the same time. I am up to my eyes in debt and it is an injustice that I have to pay anything at all because what the NDPP is doing to me is violating my civil right to a fair criminal trial and the NDPP is violating the principles of common decency and furthermore in terms of preventing crime it is not in the public interest to promote poverty because poverty to crime is like fuel is to fire. Mrs. Rabaji talks about costs in a cold blooded way. She ignores that no one can calculate the emotional and psychological trauma that she has put me through. Apart from the way that I have been tortured, the damage to my dignity cannot be restored but on the comparatively insignificant issue regarding the costs in terms of money and I am not a legal person but in my humble and simple way I ask that the court protect and fulfill my civil rights in terms of what is fair.

RETROSPECTIVE PROPHET COMMENT:

The Constitutional Court ruled against me and upheld the forfeiture of my home. 10 000 people have signed my petition. If you want to see the signatures then click here.

With the power of 10 000 people behind me I can justifiably argue that a majority in the new constitutional democracy of South Africa does not agree with the court’s decision to have ruled in favour of the state and I am now duty bound to continue to fight for the preservation of the Bill of Rights and the property rights of everyone including the judges who ruled against me.

The state’s WAR ON DRUGS is a misguided and futile exercise that is more dangerous to the whole of society than the illegal drugs themselves.

The Prevention of Organized Crime Act will have no impact in curtailing methamphetamine or any illegal drugs and so there is no justification for the state to be using such a law that violates the Constitution to the horrifying extent to what is being revealed on this website.

Hide behind your ivory tower if you must but at the end of the day, the Prevention of Organized Crime Act is nothing more than a dirty money making racket for the state.

I don't trust your average politician further than I can spit and it sickens me to witness that when they are caught and then they admit to having committed the crimes (Travelgate Scam) that they then brazenly proceed to pardon themselves and Willie Hofmeyr turns a blind eye to the national media coverage of such gross corruption and rampant racketeering activities but he throws me and my family into the street after I have been found "Not Guilty" of having committed the crimes of which I was accused.

Legally speaking, with the Preservation Order obtained in 2001, Willie Hofmeyr, made me a homeless person 4 years before the end of my criminal trial. He sold my home in 2003 and I was found not guilty in 2005 so according to Willie Hofmeyr and all the civil court judges who colluded to have me and my family thrown into the street, a person's innocence is neither here nor there.

Why did Willie Hofmeyr not seize the assets of Jacob Zuma when Schabir Shaik was accused of his crimes? Why did Willie Hofmeyr not seize the assets of Jacob Zuma when Schabir Shaik was found guilty and sentenced to a 15 year jail term?

Willie Hofmeyr was present when the National Prosecuting Authority announced on national TV that criminal charges were being withdrawn from Jacob Zuma. During this broadcast Willie Hofmeyr stood up to say that criminals were getting away with their crimes because of defective search warrants. Was he referring to Jacob Zuma? Did Willie Hofmeyr not proceed with the Prevention of Organized Crime Act against Jacob Zuma because of a defective search warrant?

According to the Supreme Court judges who allowed my home to be forfeited being found "Not Guilty" is no defence against Willie Hofmeyr. Is Willie Hofmeyr allowed to be so selective with his funny law? Is that not in itself corruption?

Civil asset forfeiture violates our Constitution and I want my home and my dignity returned to me.

R A B A J I

paragraph 16

P R O P H E T

reply paragraph 16

The NDPP opposes the application for condonation because, for the reasons set out above, Prophet has not satisfied the above Honourable Court on oath that he has a bona fide defence and he has not satisfactorily explained the lengthy delay of almost 6 months between the dismissal by the court a quo of his application for appeal and the bringing of the present application for leave in the above Honourable Court.

I admit that there has been a delay but I do not agree with her claims in terms of my defense. Erasmus has falsely declared that I am a drug dealer (paragraph 12) and he has not shown that I am involved with organized crime and he is unable to justify a proposal that he is preventing organized crime by forfeiting my home. He has used civil proceedings to declare that my home is a criminal asset (paragraph 27) and he has ignored my civil rights in terms of section 35(3) (h) of the Bill of Rights.

We must consider the greater justice for the good of all our people in terms of our Constitution and it will be an injustice if the NDPP can use the technicality of a delay so that Erasmus can escape the error of his ways and violate section 25(1) of the Bill of Rights by using a law to arbitrarily deprive me of my property.

I have not entered into the implications of section 25(2) (b) of the Bill of Rights but if what has happened to me is not put right then as far as I am concerned, justice and the Bill of Rights can be declared to be dead in South Africa.

RETROSPECTIVE PROPHET COMMENT:

Erasmus is unable to justify a proposal that he is preventing organized crime by forfeiting my home because when I was arrested, methamphetamine was non-existent in South Africa. From police statistics submitted to the Constitutional Court we see a 7 500 % increase in this drug within the first 4 years since the forfeiture of my home commenced. The only logical interpretation derived then is that forfeiting my home has promoted methamphetamine crime.

In his judgement in volume 7, page 592, line 17 Judge Erasmus tells everyone that methamphetamine is “easy to manufacture and thus is ideal for production in clandestine laboratories in residential areas.” Erasmus is talking rubbish because in the light of laws surrounding this drug it is extremely difficult to make this drug but a criminal mind will react only one way to such a claim. Can we logically conclude that by endorsing this illegal activity, Erasmus has promoted illegal methamphetamine? The statistics have shown a 7 500% increase within 4 years. How do you interpret these facts?

In the first paragraph of her judgement the Constitutional Court sets out to strike a balance between arbitrary deprivation of property and the state’s obligation to deal with crime.

Where does the word “appropriate” fit into this equation? There is zero relationship between the rights of property owners and the state’s failure to provide safety and security for South Africans. Changing the title deeds of any property will not remove crime. It is contrived and ridiculous to suggest that it could.

The obliteration of section 25 and its subsections has not reduced methamphetamine crime. The statistics of methamphetamine crime escalation since Prophet’s home was forfeited are that from there being not one laboratory before Prophet's home was forfeited to there now having been more then 35 laboratories investigated within six years.

Civil forfeiture has promoted methamphetamine drug crimes.

It is the ownership of property that promotes safety and security. Property rights and private ownership should be protected and encouraged to the fullest extent because the person who owns nothing has nothing to loose.

No one may be deprived of property and no law may permit arbitrary deprivation of property.

THIRD PARTY COMMENT:

When he was still teaching, retired UCLA Professor Emeritus, John Hospers, used South Africa’s consumer affairs law in his jurisprudence course as an exercise for students to identify the contravention of every principle of the rule of law in a single short act.

Similar powers that are in conflict with the rule of law exist under an increasing number of statutes. One of the most extreme is the Prevention of Organised Crime Act (POCA), known popularly as the asset forfeiture law. As always, the law was defended with persuasive rhetoric to the effect that abnormal powers are necessary to fight “international organised crime”.

When rule of law protagonists queried the extraordinary powers in the act, they were told that the government needs to be “tough on crime”, a sentiment shared by almost everyone, which is why there is widespread support for the law. We were reminded during the debate that similar powers exit in the USA, which supposedly legitimises all dubious laws on the basis that the United States is our benchmark for what ought to be done during our transition towards being a mature democracy. This is nearly as bizarre as an attempt to justify dubious things done now on the grounds that they were done under apartheid.

Advocates of the rule of law warned that power corrupts and that powers intended to protect us from large, sophisticated and dangerous crime syndicates would be used against ordinary civilians, which is precisely what is happening. The legislation has to my knowledge never been used to seize the assets of international crime syndicates. Instead it is used to take the assets of ordinary civilians. The Act purports to give officialdom virtually unbridled arbitrary power to take all or any of any citizen’s assets whether or not the person has committed an offence. All your wealth could be seized without your ever having committed an offence, or ever being charged, making it impossible for you to hire lawyers for your defence.

Author: Leon Louw is the Executive Director of the Free Market Foundation. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Free Market Foundation.

Note: This article by Leon Louw is the second part of a paper on the rule of law. The first part was published on 22 March 2005 as: Is the rule of law under siege in South Africa?

Africa.

R A B A J I

paragraph 17

P R O P H E T

reply paragraph 17

Quite apart from the problem with the commissioning of Prophet’s affidavit, what is conspicuous by its absence from his affidavit is any explanation negativing the conclusion reached by the court a quo that almost every room in this house was connected in one way or another with the manufacturing of illegal drugs. See in particular the last bullet point in paragraph 27 of the Judgment. This feature of the case is hardly surprising given that:

The chemical substances and literature on chemical substances found at the property were all drug-related.

Prophet did not explain adequately the equipment in the mini laboratory – a magnetic stirrer, an extractor fan, a hot plate and a vacuum sealer – other than to say they did not cost much, and Are to be found generally in kitchens.

As Prophet has, by his own admission, no formal chemical training, he must have based what he described as his “experiments as an amateur chemist” on some reference. It is submitted that the lack of any non-drug-related literature (dealing in chemical substances) conclusively shows that he was being less than truthful. See Prophet answering affidavit 196:52.1.

Prophet badly denied that methylamine and 1-phenyl-2-propanone were found on the property. He obviously could not provide any alternative possibilities regarding the substances.

The patent implausibility of Prophet’s explanation that: “I have had an interest in ‘Radionics’, ‘changing reality’, ‘alchemie’, scientology and other conventional studies for years. I am fascinated by these theories and believe in exploring ideas. This is part and parcel of my life philosophy and I enjoy doing. I have experimented with chemicals to incorporate with radionics. I have experimented to change the growth pattern of plants and colour changes in plants and soil stimulation. History has shown that many unorthodox studies have resulted in chance discoveries. I have never experimented for an illegal purpose and consider it my right to do so. I am not a drug dealer or manufacturer.” Prophet answering affidavit 236:149-150.

My silence with regard to any of the false accusations against me in my civil trial is my civil right. If Erasmus chooses to make a fool of himself by conspiring with civil rights violators by ignoring my civil right to silence or any of my civil rights then the length of rope that he has used to hang himself has been his own choosing.

I’m not sure what Mrs. Rabaji is referring to when she talks about “the last bullet point in paragraph 27”. If Erasmus is supposed to be firing “bullets” at me then somebody should point out to her that there is a difference between a loaded bullet and bullets which are blanks. There is a huge difference between opinions and facts.

Since Mrs. Rabaji is so knowledgeable about everything that I am supposed to have done wrong then can she please explain to me and everyone else why in the Cape Town Magistrates Court on the 1/4/2004 the prosecution in the criminal trial (case No. 16/79/2001) that is directly related to this case was unable to present the criminal charge sheet for the criminal trial that was due to commence last year in the Cape Town Magistrate’s Court in November 2003? I was arrested on 31/1/2001 and I still have not been formally presented with the charge sheet for my criminal trial which is scheduled to begin on the 16/8/2004 which is 42 months since my arrest.

R A B A J I

paragraph 18

P R O P H E T

reply paragraph 18

Although the matter is far from clear, it appears from Prophet’s affidavit that by “the Christmas season” his attorney, Muller, had “recuperated from surgery”. Muller says that he was last hospitalized in October 2003. See para 4 of annexure “SP5”.

Prophet’s explanation for not then applying to this Court for leave to appeal appears to be that “the Christmas season intervened and I found that it was not a time during which I could advance my case to any great degree”. Prophet affidavit para 12.

Prophet gives no explanation for the further passage of two months this year.

Prophet’s reference to rule 18 of the (now replaced) Constitutional Court Rules is beside the point because Prophet has not applied for leave to appeal directly to the Constitutional Court .

Colin Muller is fighting for his life and it has been difficult for him to get everything done on time but he is my lawyer and he has been there for me and I respect his professional integrity. After 25 operations he has only one kidney which is not his own. It takes time to recuperate from radical surgery such as this and I ask all to bear with him. There are other reasons for the delay which are valid and it is not reasonable for Mrs. Rabaji to deny me my right to appeal for reasons that are of little importance in relation to the primary issues that are at stake.

It is not fair that Mrs. Rabaji is so concerned about the promptness of my actions but in matters that require promptness from the NDPP she shows no such concern.

My criminal trial was set aside by the Cape Town High Court on 7^th April 2003 (High Court ref. No. 031188 / Case No. 16/79/2001) and was referred back to the magistrate’s court for trial before another magistrate. More than one year has gone by since that ruling and I still do not have the charge sheet. What happened to section 35(3) (d) of my civil rights to have my trial begin and conclude without unreasonable delay.

There can be few legal matters in all of history that exhibit so many foul-ups as this case so there must be voluminous references and quotations to support my application to appeal but I don’t have the resources to acquire that information. All I have is the Bill of Rights and according to section 34 “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court”.

I have a dispute with the judgment of Erasmus and the Supreme Court of Appeal is the appropriate place to have the matter heard.

I do understand that my allegations against Erasmus are shocking and are of little use to him in terms of his career and I can empathize that perhaps I should be put in my place because I might be out of line with my allegations and because of that there could be motivation to protect him because some might prefer to consider me as an expendable commodity but Erasmus has deprived me of my home and I will not allow that to happen.

My inclination favors pacifism and I do not mean any person harm but I will defend my property and when I am pressed into the battlefield then I am a formidable enemy and Erasmus can’t be protected forever because eventually someone somewhere is going to listen to what I have to say even if I have to sell copies of my book at traffic lights.

A few days prior to going to the Constitutional Court I went to Colin’s flat to ask him to accompany me to Johannesburg but sadly only to find out that he had died. I thank him for his support and his help and I send him my wishes of wellness wherever he is.

RETROSPECTIVE PROPHET COMMENT:

The Supreme Court of Appeal and the Constitutional Court have both ruled against me and now it seems that I am being forced to fight for my rights in the street and this website is the beginning of that fight. By disallowing the criminal court records into my civil trial, the Constitutional Court has covered up the criminal action of the state and this web site is here to make sure that history will not be deprived of all the facts and it is my firm believe that history will protect me.

The unlawful actions of the state and the unlawful action of the civil courts to allow the state to violate the Constitution by using a law to arbitrary deprive me of my home are now being exposed to the whole world via 1,2 billion people who use the internet. Please send this website to your friends and anyone and everyone.

Erasmus colluded with the state to violate 18 non-derogable supreme constitutional rights and I will not back down.

R A B A J I

paragraph 19

P R O P H E T

reply paragraph 19

In the meantime, the curator appointed by the Court a quo (Mr. Ivan Ross) appointed an estate agent who marketed and sold the house to Robyn Jane Hodge and Chad Hodge on 13 November 2003. The transfer of the property to the Hodges is being held up by this application for leave to appeal, and Prophet’s refusal to vacate the property. As the curator is obliged to give the Hodges vacant occupation of the property, he will shortly be instituting proceedings against Prophet and those living with him (Ms Nicola Daniels and Ms Sofia Petersen) for their eviction. I refer to the accompanying affidavit of Mr. Ross.

54 Balfour Street is an alleged crime scene and has been declared by Erasmus an alleged instrumentality of a crime and regardless of how long the NDPP take to bring that matter to court the property must be preserved for my defense in that criminal trial. The judgment presents a section called “The application for a stay of proceedings” (paragraphs 7 – 11). Erasmus must therefore have been fully aware that my criminal trial had not been resolved but he proceeded to forfeit my home regardless. Did he not stop to consider that the final consequences of his judgment could result in what Mrs. Rabaji is now demanding in this paragraph.

She is using his judgment to dispose of my defense before my criminal trial has started.

Was Erasmus deliberately depriving me of my right to a fair criminal trial by depriving me of the opportunity to preserve what he says is an instrumentality of a crime because as an alleged crime scene it could reveal my innocence of the criminal charge and that as an actual crime scene it could be used by the defense to prove possible organized criminal action of the drug police? Although there was no “formal” application for a stay perhaps Erasmus should have more carefully considered Mihalik’s polite suggestion for Erasmus to exercise discretion in the matter.

What follows is the second set of affidavits that were presented to the Supreme Court of Appeal and Ross was appointed as the curator bonis of Prophet’s home.

R O S S

paragraph 1

P R O P H E T

reply paragraph 1

I am an adult male estate agent, and franchisee of the Rawson Property Franchise, 12 Fairfield Close, Fairfield Chambers, Parow.

The content is noted.

R O S S

paragraph 2

P R O P H E T

reply paragraph 2

The facts deposed to herein are within my knowledge, unless I state to the contrary or the facts indicate otherwise, and such facts are both true and correct.

The content is noted.

R O S S

paragraph 3

P R O P H E T

reply paragraph 3

I was appointed as curator bonis in the ex parte application of the National Director of Public Prosecutions in re Erf 14241, Cape Town , situated at 54 Balfour Street , Woodstock , Cape Town (the property).

The content noted.

R O S S

paragraph 4

P R O P H E T

reply paragraph 4

The property was declared forfeit to the state on 22 May 2003. In terms of the court order I was ordered to dispose of the property and deposit the proceeds thereof into the Criminal Asset Recovery Account.

The property was declared forfeit to the state through the gross incompetence of Erasmus in that he could not correctly interpret the Drugs and Drug Trafficking Act and through the gross misconduct of Erasmus in that he entered false evidence into my trial and that he failed to respect, protect, promote and fulfill section 25(1), (2)(b) and (3)(a), (b), (c), (d) and (e) of the Bill of Rights, section 35(3) (h) of the Bill of Rights and section 35(3) (o) of the Bill of Rights.

Annex IR4 of Mr. Ross is an advertisement that I printed as a part of my strategy to find justice. On the first side it shows how Erasmus has been caught out with a grammatical contradiction which renders his interpretation of the Drugs and Drug Trafficking Act as meaningless. The second page aggressively attacks Erasmus in that he entered false evidence into my trial. The first time I spoke with Mr. Ross in his offices I showed him the proof of my claims and he immediately agreed with me that nobody hands out invoices for illegal drugs and he realized that the claims that were made by Erasmus must have been erroneous.

I also told him that I definitely would not move out of my home because it was an alleged crime scene and the criminal trial that involved that allegation was still in its proceedings. I told him that I required the house for my defense and he agreed with me. When I confronted him about the moral issues that were concerned with his actions as the curator bonis he told me that he was merely taking orders and that is why he did the things that he did but it was his intention to resign. At a loss for anything else to say he passed the buck over to who had been telling him what to do and he told me to contact Advocate Nel of the Asset and Forfeiture Unit which I did. I phoned her and asked her if she was aware that my home was an alleged crime scene and that the criminal trial that involved that allegation crime was still in progress. She said she was aware of that but that I still had to get out of the house because it had been sold. I asked her to give her instructions to me in writing and she refused saying that it was enough that she had told me. I have subsequently complained to the Public Protector that the Asset and Forfeiture Unit is engaging in improper enrichment in that it has seized my home which it says is an instrumentality of a crime but in the next breath disposes of the instrumentality before the commencement of the criminal trial that involves the same instrumentality.

My criminal trial is due to commence on the 16^th August 2004. If the curator bonis is aware of that then on what basis has he been instructing me to get out of the house so that strangers can occupy it and do with it whatever they please? His actions do not indicate that he considers my house as evidence in my criminal trial and if his actions are the instruction of the Asset and Forfeiture Unit then it follows that the Asset and Forfeiture Unit does not consider that my home is evidence either. This then begs the question of then on what basis is it insisting that my home is an instrumentality of a crime?

If a knife had been used as an instrumentality of a crime in a case of murder would it be reasonable for a government body to forfeit the knife and then sell the knife and then dispose of the knife before the murder trial had commenced?

R O S S

paragraph 5

P R O P H E T

reply paragraph 5

The applicant filed an application for leave to appeal the court order on 13 June 2003, which leave was refused on 9 September 2003.

This is further proof that Erasmus is guilty of gross misconduct in that his actions violate my civil rights. Section 35(3) (o) of the Bill of Rights says and I quote: “Every accused person has the right to a fair trial which includes the right of appeal to, or review by, a higher court.” I am therefore entitled to the choice of two options.

In the current context these are my civil rights and they are not the civil rights of Erasmus but he has arrogantly undertaken to undermine my choices. How would he like it if when he applies for his appeal I come along and tell him which of his rights he can exercise?

R O S S

paragraph 6

P R O P H E T

reply paragraph 6

On 10 October 2003 I was advised by the Asset Forfeiture Unit that the property had been forfeited to the state and that I should proceed to sell the property as applicant had exhausted his remedies.

I deny that I have exhausted my remedies.

RETROSPECTIVE PROPHET COMMENT:

The supreme Court of Appeal and the Constitutional Court have all ruled against me and a Cape Town judge signed an order to evict me and my family from my home and I was put into handcuffs and taken from my home by force but I will not back down. I have been evicted from my home but even now at such stage as everyone is telling me to give it up I have still not exhausted my remedies. What the state and the civil courts have done to me is gross violation of human rights and I will continue to fight for my rights. My home belongs to me and it is not for sale until I say it is for sale.

No one may be deprived of property and no law may permit arbitrary deprivation of property.

R O S S

paragraph 8

P R O P H E T

reply paragraph 8

On 15 October 2003 I received a letter from the applicant, annexed hereto as ‘IR1’. In this letter he inter alia expresses his dissatisfaction with the decision of Erasmus J in declaring his property forfeit and indicates that he should be granted first option to purchase the property.

Mr. Ross never gave me a first option. I would have offered him R1 and if he had accepted my offer then this matter would have been resolved in a peaceful manner.

R O S S

paragraph 9

P R O P H E T

reply paragraph 9

I forwarded this letter to the Asset and Forfeiture Unit and was advised to proceed with the sale of the property as the applicant had not taken any further steps to appeal against the forfeiture order, and in fact indicated that he would not do so.

Ordinary people do not have access to the Supreme Court of Appeal in Bloemfontein because the cost of so doing exceeds the financial capability of the bulk of the South African population. Maybe I’ve been a lazy bum all my life and maybe with an artist’s temperament I’m not motivated by money but it has taken me the whole of my life to acquire my property and the cost of my appeal to preserve what is mine can exceed the equity of the only asset I have. This appeal has not been an easy decision for me especially after witnessing the illegality of what Erasmus has done in order to deprive me of my home but I am an optimist and I put my trust and my faith in South Africa’s legal system that justice will be done.

In my letter I told Mr. Ross that I had decided against the financial burden of approaching the Appellate Court in Bloemfontein but what I did not tell him was that over the past two years my mother has been extremely ill and confined to her bed. I took it upon myself to take care of her so that she could remain in her own home and also so that her dog that she dearly loved could be close to her always. I had to employ three frail care helpers and the cost of medication and the cost of medical supervision and the cost of the potential escalation of those costs put me in a position whereby I had to sacrifice defending my home because with limited financial resources there was no funding available to look after my mother and at the same time also undertake the financial risk of approaching the Supreme Court of Appeal.

My mother died on the 24^th December last year and now that my obligations to her have been fulfilled the courts will have my undivided attention.

R O S S

paragraph 10

P R O P H E T

reply paragraph 10

I did not instruct the applicant to vacate the property at that stage as I believed it would deteriorate if left empty.

I would have told him to go jump in the lake.

R O S S

paragraph 11

P R O P H E T

reply paragraph 11

The agent who handled the sale of the property is Veronica Thompson of Rawson Observatory. She did not experience any problems in gaining access to the property to show clients around.

When Veronica Thompson (Ms VME Adam) and two of her colleagues first came to my home I made them aware of much of what has been made known in this appeal and I trusted in their sense of ethical conduct that they would decline to sell my home in that an innocent person was being deprived of his home without compensation. My petition was ignored but given the information in the text box below it comes as little surprise to me that Veronica Thompson (Ms VME Adam) proceeded to handle the sale in spite of my petition and it also suggests that Mr. Hodge’s allegation in paragraph B12 may be true. If there was some rivalry between my petition and a desire to secure the commission from a sale then it makes me shudder to think what else may have been said to erode my dignity to the droves of people who were brought to my home over several weeks.

Veronica Thompson and Ms. YME Adam is the same person.

What prompted Mr. Ross to have Veronica Thompson (Ms.VME Adam) handle the sale? Is it by coincidence or is it by design that the Asset and Forfeiture Unit are linked to the above text box?

R O S S

paragraph 12

P R O P H E T

reply paragraph 12

Three written offers were received and submitted to the Asset Forfeiture Unit. I was advised to accept the best offer, which I did and the house was sold to Robyn Jane Hodge and Chad Hodge on 12 November 2003. A copy of the signed deed of sale is annexed hereto as ‘IR2'

Each and every prospective buyer who came to view my home was forewarned that I opposed the forced sale of my home and it was made clear to them all that there were complications in attempting to buy my home. A written petition outlining some of the problems was given to all. Mr. Hodge who was accompanied by a man and a woman received my petition from me personally.

On the 1^st of March 2004 Mr. Hodge came to my home and asked me what was going on.

In the presence of my lawyer Mr. Hodge told me that he had been told by the estate agent that I had been found guilty of dealing in drugs. I told him that what he had heard was not true but he did not believe me and his opinion that I was a convicted criminal could not be swayed even though my lawyer attempted to explain to him some of the inherent problems regarding the Prevention of Organized Crime Act. The above violations against my dignity were only made possible by the media, the NDPP and Erasmus because of failings to respect, to protect, to promote and to fulfill section 35(3) (h) of the Bill of Rights.

R O S S

paragraph 13

P R O P H E T

reply paragraph 13

On about 13 November 2003 I advised the applicant of the sale and informed him that he would have to vacate the property on or before 15 January 2004. He did not demur.

Does Mr. Ross know what demur means? How can Mr. Ross say that I did not “demur” in the light of his own annexes marked IR1 and IR4 or in the light of this application to which he is now responding?

R O S S

paragraph 14

P R O P H E T

reply paragraph 14

On 6 January 2004 the applicant came to see me at my office. I once again advised the applicant that the property had been sold and that he had to vacate the property. While he was there, I received a facsimile from one Colin Muller (‘Muller’), whom the applicant advised me had engaged as his lawyer. A copy of this facsimile and a pamphlet the applicant handed me (an attack on the judgment of His Lordship Mr Justice Erasmus in the forfeiture proceedings), are annexed hereto as annexure ‘IR3’ and ‘IR4” respectively.

The pamphlet offered a free copy of my book which goes into considerable detail about this case.

R O S S

paragraph 15

P R O P H E T

reply paragraph 15

I forwarded the facsimile and pamphlet to the Asset and Forfeiture Unit and was again advised that as the applicant had exhausted his legal remedies I should proceed with the sale of the property. I reached agreement with the purchasers that they take occupation on 1 March 2004.

I deny that I had exhausted my legal remedies.

R O S S

paragraph 16

P R O P H E T

reply paragraph 16

On 30 January 2004 I visited the property. The applicant was not at home and I left a letter (attached as annexure ‘IR5’) with his cousin, Samantha van Rhyn. In this letter I reminded the applicant that he would have to vacate the property by 29 February 2004.

Samantha Van Rhyn is not my cousin and I was unaware of her surname until I read Mr. Ross’s affidavit. She was staying at the St Anne’s Home for destitute mothers. She is the single mother of a three year old child. She approached me with a sad story about her and a friend of hers who had nowhere to stay. I felt sorry for them and I said she could stay at my house until her circumstances improved.

She became perturbed by the letters that indicated that she would have to leave the house. I told her that while she was in my home that I would not allow any person to harm her but she was not convinced and said that the irritation caused by the letters was beginning to make her feel sick. She left at the end of February.

R O S S

paragraph 17

P R O P H E T

reply paragraph 17

Neither the applicant nor his legal advisor contacted me or indicated in any way that they had taken any steps to appeal against the court order until Friday 27 February 2004, when I was informed by applicant that he was in the process of bringing an urgent High Court application. This application never materialized.

How can Mr. Ross say that I never “contacted” him, or “in any way” indicated that I had taken any steps to appeal against the court order until Friday 27^th February 2004?

His annex IR1 is a letter of appeal dated 15^th October 2003 against the court order and in the 5^th line of that appeal I said that “I will seek out and employ other avenues to defend what I still consider to be my home”.

His annex IR4 indicates that I had written a book. The entire book is an appeal against the judgment. I offered Mr. Ross a free copy and he declined on my offer and chose instead to turn a blind eye but that does not negate my efforts to appeal. In the book page 95 is an appeal to the Judicial Service Commission, page 96 is an appeal to the Public Protector, page 97 is an appeal to the Human Rights Commission, page 98 is an appeal to the Law Society of South Africa and page 100 is an appeal to every reader of the book.

I extend an offer to make the book available to the court if the court should so desire.

How can Mr. Ross say that my legal advisor did not “contact” or indicate “in any way” that steps were being taken to appeal before Friday 27^th February 2004 when Mr. Ross’s annex IR3 shows that Mr. Muller’s correspondence is dated 6^th January 2004.

How can Mr. Ross say that my application to appeal “never materialized” when he is on paragraph 17 of his affidavit in response to that application?

R O S S

paragraph 18

P R O P H E T

reply paragraph 18

On 29 February 2004 the applicant refused to hand over the keys or vacate the property. I informed the purchaser of the property accordingly. They have indicated that they still wish to take transfer of the property, particularly as property prices in the area have increased considerably since the property was purchased.

On Friday 27^th February I was with my lawyer when Smit phoned him to tell me to get out of my home.

On the 28^th of February I got horribly drunk and only got home at about 2 AM on 29^th February. Drunk though I may have been I was eager and willing to make a diligent effort to oppose any action to try to deprive me of my home. I was anticipating coming to blows with any person who might have attempted to force me out because I fully expected it. My lawyer was concerned about my safety and told me to phone him at any time during the night if there was trouble.

I was drunk but I do not recall anyone asking me for the keys or to vacate the property. If any person did I would have told them to go to hell.

R O S S

paragraph 19

P R O P H E T

reply paragraph 19

As the applicant still has not vacated the property I am in the process of instructing the Office of the State Attorney to institute eviction proceedings against the applicant and those living with him (Ms Nicola Daniels and Ms Sofia Petersen) to enable me to give vacant possession of the property to the purchaser.

Ms. Petersen is no longer staying at 54 Balfour Street so it will not be necessary for Mr. Ross to instruct the Office of the State Attorney to institute eviction proceedings against her.

According to Mr Ross's annex IR1 he was made aware on the 15th of October 2003 that Ms. Daniels was a squatter at 54 Balfour Street. When Mr Hodge received my petition he was made aware of the presence of Ms. Daniels and if he negotiated to buy my house on the 15th of November 2003 then his negotiation included to accept Ms. Daniels as part of what he was intending to buy. If Mr Ross or any other person led him to believe that Ms. Daniels could be discarded like unwanted furniture then that is going to have to be addressed.

When Ms. Daniels was a child she lived with her grandmother in District Six and witnessed as a victim what is Cape Town’s eternal disgrace.

Mr. Ross has publicly declared his desire to actively engage against a disadvantaged woman who has been a victim of apartheid for 20 years so that a white male foreigner can kick her into the street from one day to the next without any compensation to make it easier for the white male foreigner to take up residence where she has been living for seven years.

Mr. Ross is nothing new to Ms. Daniels but if he gets his way then the sickness of our past still lurks within our walls.

Any attempt by Mr. Ross or anyone else to have Ms. Daniels evicted from my home is going to be met with extreme resistance and Mr. Ross is going to discover that the dictatorial suppression of people’s human dignity in the past has been replaced by a society that is based on social justice and fundamental human rights.

No one may be deprived of property and no law may permit arbitrary deprivation of property.

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