National Director of Public Prosecutions v Landomax (Pty) Ltd and Others (M194/2015) [2017] ZANWHC 31 (4 May 2017)

IN THE NORTH WEST HIGH COURT, MAHIKENG

CASE NUMBER: M194/2015

In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC APPLICANT

PROSECUTIONS

AND

LANDOMAX (PTY) LTD 1st RESPONDENT

RUDOLPH PHILLIPUS VORSTER N.O 2nd RESPONDENT

(in his capacity as trustee for the time being of sable cape besigheids trust)

HENDRE EGON VORSTER N.O 3rd RESPONDENT

HENDRIK JOHANNES OTTO N.O 4th RESPONDENT

ALBE VAN NIEKERK N.O 5TH RESPONDENT

(in his capacity as trustee for the time being of sable cape family trust)

RUDOLPH PHILLIPUS VORSTER N.O 6TH RESPONDENT

(in her capacity as trustee for the time being of sable cape family trust)

HENDRE EGON VORSTER N.O 7TH RESPONDENT

SAREL JOHANNES VAN NIEKERK 8TH RESPONDENT

ALBE VAN NIEKERK 9TH RESPONDENT

RUDOLPH PHILLIPUS VORSTER N.O 10TH RESPONDENT

(in her capacity as trustee for the time being of tango sun trust)

JENNY VENTER N.O 11TH RESPONDENT

In the ex-parte application of:

DATE OF HEARING : 02 MARCH 2017

DATE OF JUDGMENT : 04 MAY 2017

COUNSEL FOR THE APPLICANT : ADV. KJA NTIMUTSE

COUNSEL FOR THE RESPONDENTS : ADV. P A VAN WYK, SC

JUDGMENT

DJAJE AJ

Introduction

[1] This is an application in terms of Rule 30 of the Uniform Rules of Court for the setting aside of an irregular step. For the sake of convenience the parties will be referred to as they appear in the main application. The crux of the matter is that the conduct of the Applicant with reference to the application for forfeiture is an irregular step and should be set aside. Further that the preservation order granted to the Applicant be considered to have lapsed.

Background

[2] On 11 June 2015 the Applicant in this matter obtained a preservation order in terms of section 38(1) of the Prevention of Organised Crime Act 121 of 1998 (“POCA”). Thereafter the Applicant had to comply with the provisions of section 40 of POCA which requires the Applicant to have an application for a forfeiture order pending before a High Court before the expiry of 90 days after the date on which notice of making of the order is published in the Gazette. The order was published in Gazette No. 39145 on 28 August 2012. On 25 November 2015, 89 days after publication, the application for forfeiture order was issued with the Registrar of this High Court and served on the Respondents on 12 May 2016, 227 days after publication. The Respondents case is that when the application was served on them the preservation order had lapsed.

Therefore the Applicant’s step to enrol the application for forfeiture order is irregular and should be set aside.

[3] The Applicant raised a point in limine that the Respondents have taken a further step and filed an opposition to the forfeiture application and can therefore not rely

on Rule 30. In response the Respondents argued that the notice to oppose the forfeiture application is not a further step as it was only served and filed after the Rule 30 application was filed. It can therefore not be regarded as a further step.

[4] Rule 30(1) and (2) (a) of the Uniform Rules of Court states that:

“(1) a party to a cause in which an irregular step has been taken by any other party may apply to court to set it aside. (2) An application in terms of sub rule (1) shall be on notice to all parties specifying particulars of the irregularity or impropriety alleged, and may be made only if:

(a) the applicant has not himself taken a further step in the cause with knowledge of the irregularity;

[5] The Rule 30 application was served and filed by the Respondents on 26 May 2016 and at that time they had not filed any opposing documents to the forfeiture application. The opposing documents were only filed on 27 May 2016 a day after the Rule 30 application. In essence at the time of relying on Rule 30 the Respondents had not taken any further step.

The Applicant’s point in limine has no merit and stands to fail.

[6] The Applicant further raised a point in limine that the Respondents have no locus standi to bring this application or oppose the application for forfeiture order. The argument by the Applicant was that the Respondents were not cited in the application for forfeiture and can only be regarded as interested parties as they are beneficiaries to trusts that have shares in the company involved in the acquisition of the property. The submission by Applicant was that the Respondents were only served as interested parties to afford them an opportunity to approach the court for assistance should they believe that a case can be made out.

[7] Section 39(3) of POCA provides that

“Any person who has an interest in the property which is subject to the preservation of property order may enter an appearance giving notice of his or her intention to oppose the making of a forfeiture order or to apply for an order excluding his or her interest in the property concerned from the operation thereof.”

It is not disputed that the Respondents are interested parties in the application for forfeiture order and that they will be affected by the said order. The point in limine is on that basis dismissed.

Main Application

[8] It is the case for the Respondents that the Applicant’s step of enrolling the application for forfeiture is an irregular step and should be set aside. In support of its argument the Respondents relied on the cases of Levy v National Director of Public Prosecutions 2002 (1) SACR 162 and NDPP v MOOLLA 2010 (2) SACR 429. In both matters the court dealt with the interpretation of the word “pending” as referred to in section 40 of POCA and found that the preservation order ceased to exist and the application for forfeiture order was set aside as an irregular proceeding. The court in Levy v National Director of Public Prosecutions (supra) held at paragraph 9 that:

“ At best for the National Director the word ‘pending’ is ambiguous and thus may be interpreted as requiring service of the application on a respondent or not doing so. Where a statute makes serious inroads on the rights of an individual the Court ought to lean in favour of a construction which will result in such inroads being limited as possible. Compare Mahlangu at para [31]. It follows that service of the application is necessary to make it pending.”

[9] The Applicant contends that there was compliance with the requirements of POCA by filing the forfeiture application before the

expiry of 90 days. Further that this court is not bound by the two decisions relied on by the Respondents. Argument by the Applicant was that if the legislature intended to make service a requirement for section 40 of POCA it would have specifically stated so as it had done under section 39. Therefore according to the Applicant the word ‘pending’ in section 40 of POCA relates to filing and not service. In support of this argument the Applicant relied on the decision in the matter of National Director of Public Prosecutions v Van der Berg (unreported case No 5597/06) delivered on 22 December 2008 by Gassner AJ in the Western Cape High Court where the following was stated:

“Furthermore, s40 of POCA merely requires that an application for a forfeiture order must be “pending” within ninety days after the date on which notice of a preservation order is published in the Government Gazette. That does not presuppose the service of the application but merely the issuing thereof. I accordingly find that there has been proper compliance with the provisions of s 48(1), as read with s40 of POCA.”

[10] Section 40 of POCA states that:

“a preservation of property order shall expire 90 days after the date on which notice of making of the order is published in the Gazette unless:

(a) there is an application for a forfeiture order pending before the High Court in respect of the property, subject to the preservation of property order;

(b) there is an unsatisfied forfeiture order in relation to the property subject to the preservation of property order; or

(c) the order is rescinded before the expiry of that period.”

[11] The Respondents’ argument relying on the two decisions referred to above in paragraph [8] is that the interpretation of the word ‘pending’ in section 40 should include service of the application. On the other hand the Applicant argued that the decisions relied on by the Respondents are not binding on this Court.

[12] In the matter of Levy v National Director of Public Prosecutions (supra) Goldstein J at paragraph 9 stated that:

“ At best for the National Director the word ‘pending’ is ambiguous and thus may be interpreted as requiring service of the application on a respondent or not doing so. Where a statute makes serious inroads on the rights of an individual the Court ought to lean in favour of a construction which will result in such inroads being as limited as possible. Compare Mahlangu at para [31].It follows that service of the application is necessary to make it pending. I find support for this view in the consideration that, if it were to be held that service on the Registrar is sufficient to render an application pending, the person bound by the preservation order would have no knowledge that he was bound before service on him occurred ,since there is no obligation on a prospective respondent to enquire at the Registrar’s office whether an application has been delivered there ( Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 19 72 (1) SA 773 (A) at 781(G). Furthermore there is no time limit within which service must occur after an application is filed with the Registrar. If the application were to be held to be pending from the time of filing with the Registrar the National Director could by the stratagem of so filing the application render the preservation order operative for an indefinite period. This would be an absurd result and could not have been contemplated by the Legislature.”

[13] The ordinary meaning of the word ‘pending’ in the South African Concise Oxford Dictionary is “1. awaiting decision or settlement; 2. about to happen”. The question that can be asked is whether a matter can await decision or settlement when all the parties affected are not aware of what is about to happen. It is indeed so that there is no time frame as to when an application should be served on a respondent in terms of section 40 of POCA. As stated above in the Levy case it could not have been the intention of the Legislature to have a preservation order operative for an indefinite period. In this matter the Respondents were served with the application 227 days after the preservation order was published in the Gazette. The preservation order was operative for a period of more than seven months before the application for a forfeiture order could be served on the Respondents. This was a long period within which the Respondents were not aware that they were bound by a preservation

order.

[14] In my view the court in the Levy case correctly distinguished the interpretation of the word ‘pending’ as referred to in section 40 of POCA. It therefore follows that at the time the application for a forfeiture order was brought the preservation order had ceased to operate.

Order

[15] Consequently the following order is made:

1. The application for forfeiture order served on the Respondents by the Applicant is hereby set aside as an irregular step in terms of Rule 30 of the Uniform Rules of Court.

2. The Applicant is ordered to pay the costs of this application.

___________________

J T DJAJE

ACTING JUDGE OF THE HIGH COURT