Mokone v National Director of Public Prosecution (3/10_) [2011] ZANWHC 7 (4 March 2011)

Mokone v National Director of Public Prosecution (3/10_) [2011] ZANWHC 7 (4 March 2011)

The court found that the preservation order expired 90 days after publication in the Gazette, and the forfeiture application was brought after this period had lapsed. As a result, the High Court was not empowered to grant the forfeiture order, and the proceedings were void ab initio. The procedural irregularity was dispositive, and the forfeiture order was set aside without consideration of the merits. Costs were not awarded to either party, as the irregularity was discovered through the professionalism and honesty of the respondent's counsel.

Citation
[2011] ZANWHC 7
Parties
Appellant: Winston Bheki Mokone; Respondent: National Director of Public Prosecution
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
4 March 2011
Case Number
3/10
Procedural Posture
Civil Appeal / Appeal Against Default Forfeiture Order
Outcome
Appeal upheld; forfeiture order set aside.
Judges
A.M. Kgoele, R.D. Hendricks, N. Gutta
Legal Topics
Prevention of Organised Crime Act, Forfeiture of Property, Procedural Irregularity, Preservation Order Duration
Criminal Law Civil Procedure Prevention of Organised Crime Act Forfeiture of Property Procedural Irregularity Preservation Order Duration

Case Brief

Summary, issues, holding and outcome

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Parties

Winston Bheki Mokone

Appellant

National Director of Public Prosecution

Respondent

Procedural Posture

Civil Appeal / Appeal Against Default Forfeiture Order

Legal Issues

  1. 1 Whether the forfeiture order was validly granted when the preservation order had already lapsed.
  2. 2 Whether the respondent was entitled to bring the forfeiture application after expiry of the preservation order.
  3. 3 Whether procedural irregularity renders the forfeiture order void ab initio.

Ratio Decidendi

The court found that the preservation order expired 90 days after publication in the Gazette, and the forfeiture application was brought after this period had lapsed. As a result, the High Court was not empowered to grant the forfeiture order, and the proceedings were void ab initio. The procedural irregularity was dispositive, and the forfeiture order was set aside without consideration of the merits. Costs were not awarded to either party, as the irregularity was discovered through the professionalism and honesty of the respondent's counsel.

Court Disposition

Appeal upheld; forfeiture order set aside.

Orders

  • The forfeiture order granted on 29 January 2004 is set aside.
  • Each party to pay its own costs.