house used as brothel forfeited to state 
26 March 2008

The Supreme Court of Appeal ruled that a property owner who used his property for the sole purpose of prostitution should forfeit the property, worth about R2m, to the state.  The court found that the property was instrumental in the commission of an offence.

Asset Forfeiture Unit head Willie Hofmeyr welcomed the judgment, and said there had been much uncertainty about forfeiture of property that was instrumental in the commission of an offence.

“What this unanimous judgment makes clear is that where owners deliberately use property for criminal activities, they will not be treated with any sympathy by the courts, especially when the property is used in an ongoing way as a criminal business.  “The judgment will make the work of the Asset Forfeiture Unit a lot easier in that category of offences. We hope the judgment will send a strong message to brothel owners,” Hofmeyr said.

In 2000, a close corporation of which Frederik Geyser was sole member bought a property in Arcadia, Pretoria, consisting of a single-storey residence. Geyser renovated the building and added a second storey of 14 bedrooms, 10 of which contained no more than a shower, a double bed and a chair. A police investigation in February 2003 revealed that the rooms each contained a supply of condoms and were used by prostitutes for commercial sex.

In June 2005, the n ational d irector of p ublic p rosecutions (NDPP) applied for a court order that the property be forfeited to the state as it was used as a brothel. The judge found that only the top floor was involved in the offence of keeping a brothel and that should be the only part forfeited. The NDPP appealed against that order.

Counsel for Geyser argued that Geyser was letting the first floor rooms, and was not, in effect, selling commercial sex.

“ The evidence points inescapably to the conclusion that Mr Geyser custom-built the building to operate as a brothel albeit a brothel with a bar and operated it until the NDPP’s intervention,” Supreme Court of Appeal Judge-President Craig Howie said in a unanimous judgment.

Howie said the evidence showed that the ground floor housed the bar and provided convenient space and facilities for people to socialise. It was where the prostitutes could be seen and chosen by intending customers.

“The ground floor was therefore an essential component of the brothel. It follows that the court below erred in finding that only the top floor was involved.”

Howie also dismissed Geyser’s comparison with another forfeiture case, involving Kumarnath Mohunram, where forfeiture was refused by the Constitutional Court. Mohunram bought a building and partitioned it into two operations, an illegal casino and a lawful glass and aluminium business. The gambling machines were confiscated and destroyed and he paid fines.

Howie said the property in Mohunram’s case was bought and used for two purposes, one of which was legitimate. “Here, the property was acquired solely for a criminal purpose.”  Howie said the primary question was not whether forfeiture constituted punishment, but whether forfeiture would have more than the necessary remedial effect.

Ernest Mabuza, www.businessday.co.za