Mtoko v National Director of Public Prosecutions (M505/2017) [2019] ZANWHC 46 (30 August 2019)

Mtoko v National Director of Public Prosecutions (M505/2017) [2019] ZANWHC 46 (30 August 2019)

The applicant acted within the statutory time frame to seek rescission of the forfeiture order. She provided a reasonable explanation for her default, namely lack of proper service and inadequate legal representation. The applicant demonstrated a bona fide defence by contesting the use of the motor vehicle as an instrumentality of the offence and denying involvement in the alleged crime. The court found that the forfeiture order was granted while the criminal case was still pending, and the applicant was deprived of the use of her property without being heard, contrary to principles of natural justice. The applicant met the requirements under section 53 of POCA and common law for...

Citation
[2019] ZANWHC 46
Parties
Applicant: Nompumelelo Lucy Mtoko; Respondent: National Director of Public Prosecutions
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
30 August 2019
Case Number
M505/2017
Procedural Posture
Rescission Application / Application for Rescission of Forfeiture Order
Outcome
Application for rescission of the forfeiture order is granted.
Judges
M E Mametse
Legal Topics
Forfeiture Order, Rescission of Judgment, Prevention of Organised Crime Act, Default Judgment, Bona Fide Defence
Criminal Law Civil Procedure Forfeiture Order Rescission of Judgment Prevention of Organised Crime Act Default Judgment Bona Fide Defence

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Parties

Nompumelelo Lucy Mtoko

Applicant

National Director of Public Prosecutions

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Forfeiture Order

Legal Issues

  1. 1 Whether the applicant provided a reasonable explanation for her default in opposing the forfeiture order.
  2. 2 Whether the applicant has a bona fide defence to the forfeiture order.
  3. 3 Whether the motor vehicle is an instrumentality of the alleged offence.

Ratio Decidendi

The applicant acted within the statutory time frame to seek rescission of the forfeiture order. She provided a reasonable explanation for her default, namely lack of proper service and inadequate legal representation. The applicant demonstrated a bona fide defence by contesting the use of the motor vehicle as an instrumentality of the offence and denying involvement in the alleged crime. The court found that the forfeiture order was granted while the criminal case was still pending, and the applicant was deprived of the use of her property without being heard, contrary to principles of natural justice. The applicant met the requirements under section 53 of POCA and common law for...

Court Disposition

Application for rescission of the forfeiture order is granted.

Orders

  • The forfeiture order granted on 25 October 2018 is set aside.
  • The applicant is granted leave to enter a notice of intention to oppose within 14 days of the date of this judgment.