Khosana and Others v National Director of Public Prosecutions (5759/2009) [2011] ZAFSHC 214; 2012 (1) SACR 176 (FB) (30 June 2011)

Khosana and Others v National Director of Public Prosecutions (5759/2009) [2011] ZAFSHC 214; 2012 (1) SACR 176 (FB) (30 June 2011)

The court held that the NDPP was entitled to proceed ex parte in obtaining a preservation order under section 38 of POCA, even though criminal proceedings were pending. The existence of criminal proceedings does not exclude the operation of Chapter 6 civil forfeiture proceedings, as Chapters 5 and 6 serve different purposes and provide distinct remedies. The requirement under section 39(5) for respondents to disclose the basis of their defence in an affidavit does not amount to unconstitutional compulsion or breach of the right to silence, as participation in civil proceedings is voluntary and does not force self-incrimination. Paragraph 20.4 of the preservation order does not create a...

Citation
[2011] ZAFSHC 214
Parties
Applicant: Fikizolo Norman Khosana; Applicant: Louis Khosana; Applicant: Alvaro Pedro Macamo; Applicant: M L Khosana; Respondent: National Director of Public Prosecutions
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 June 2011
Case Number
5759/2009
Procedural Posture
Review Application / Application to Set Aside Ex Parte Preservation Order Under Poca; Judgment on Merits
Outcome
Application dismissed; no order as to costs.
Judges
A Kruger
Legal Topics
Prevention of Organised Crime Act, Ex Parte Applications, Forfeiture of Property, Right to Silence, Constitutional Rights, Interim Orders
Criminal Law Civil Procedure Prevention of Organised Crime Act Ex Parte Applications Forfeiture of Property Right to Silence Constitutional Rights Interim Orders

Case Brief

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Parties

Fikizolo Norman Khosana

Applicant

Louis Khosana

Applicant

Alvaro Pedro Macamo

Applicant

M L Khosana

Applicant

National Director of Public Prosecutions

Respondent

Procedural Posture

Review Application / Application to Set Aside Ex Parte Preservation Order Under Poca; Judgment on Merits

Legal Issues

  1. 1 Whether the NDPP was entitled to obtain a preservation order ex parte and in camera under section 38 of POCA while criminal proceedings were pending.
  2. 2 Whether Chapter 6 civil forfeiture proceedings may run concurrently with criminal proceedings under Chapter 5 of POCA.
  3. 3 Whether section 39(5) of POCA unconstitutionally infringes the applicants' rights to silence, fair trial, and protection against self-incrimination.

Ratio Decidendi

The court held that the NDPP was entitled to proceed ex parte in obtaining a preservation order under section 38 of POCA, even though criminal proceedings were pending. The existence of criminal proceedings does not exclude the operation of Chapter 6 civil forfeiture proceedings, as Chapters 5 and 6 serve different purposes and provide distinct remedies. The requirement under section 39(5) for respondents to disclose the basis of their defence in an affidavit does not amount to unconstitutional compulsion or breach of the right to silence, as participation in civil proceedings is voluntary and does not force self-incrimination. Paragraph 20.4 of the preservation order does not create a...

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application to set aside the preservation order is dismissed.
  • No order as to costs is made.