National Director of Public Prosecutions v Bacela and Another (M280/2017; FB 09/2020) [2022] ZANWHC 47 (30 September 2022)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

Reportable: YES / NO

Circulate to Judges:

YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

APPEAL CASE NUMBER: FB 09/2020

CASE NO: M280/2017

In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS APPLICANT

AND

SHIRLEY DALI BACELA 1ST RESPONDENT

MAFISA TEG TRANSPORT (PTY) LTD 2ND RESPONDENT

CIVIL APPEAL

CORUM: HENDRCKS JP; DJAJE ADJP & MTHEMBU AJ

Heard: 13 MAY 2022

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be on 30 SEPTEMBER 2022

ORDER

1st DRAFT JUDGMENT

DJAJE ADJP

[1] This appeal turns on the provisions of section 48 of the Prevention of Organised Crime Act 121 of 1998 (“POCA”). The appellant had brought an application in terms of section 48 of POCA which was dismissed on the basis that the forfeiture notice was not served on the respondents by the Sheriff.

[2] A brief history of the matter is that the appellant was granted a preservation order on 22 June 2017 as provided for in section 38 of POCA. The order was served on the respondents on 6 July 2017. A notice of intention to oppose the granting of a forfeiture order was filed by the respondents. The notice directed all correspondence to be served on the Attorneys of the respondents. The preservation order was published in the government gazette on 11 August 2017. On 26 September 2017 the appellant brought an application for a forfeiture order in terms of section 48 of POCA to have the assets of the respondents to be forfeited. The application was opposed by the respondents.

[3] At the hearing of the application the respondents raised a point in limine at the hearing of the matter that the appellant had failed to comply with section 48(3) of POCA in that the forfeiture notice was not served by Sheriff on the respondents, but by the State Attorney on the Attorneys of the respondents. The point in limine was upheld and the application in terms of section 48 of POCA was dismissed. The merits of the matter were not dealt with and hence

this appeal will also not deal with the merits of the application.

[4] The issue to be determined in this appeal is whether the forfeiture application was invalid as it was not served on the respondents by the Sheriff within the 90 day period as prescribed in section 40 of POCA.

[5] The appellant argued that there was substantial compliance with the provisions of POCA when the forfeiture notice was served on the respondents. Firstly, that the forfeiture notice was served within the 90 days and the preservation order had not lapsed. Secondly, by entering a notice to oppose, the respondents had the intention to defend the forfeiture application and had appointed the offices of their Attorneys to receive all correspondence in the matter as provided for in section 39(3) and 39(5) of POCA. The appellant argued that service of the forfeiture notice was in accordance with Rule 4(1) (aA) and 4 (6) (b) of the Uniform Rules of Court and as such can be condoned by court for non-compliance with section 48(3) of POCA.

[6] During argument both parties referred to different case law in support of their argument. The appellants relied on the unreported case of National Director of Public Prosecutions v Hilda van der Burg and Another (5597/06) CPD (22 December 2008) where the court at paragraph 26 held that:

“ In as much as section 39(5) specifically envisages the appointment of a service address for the delivery of documents concerning further proceedings under “ this chapter” (that is, Chapter 6 of POCA, which also contains the provisions governing applications for a forfeiture order), there seems to be no merit in the respondents’ in limine point that service of the forfeiture application at the service address appointed by them in their section 39(3) notice was insufficient. It is common cause that the forfeiture application was served at the appointed service address within the ninety-day period specified in section 40 of POCA. Furthermore, section 40 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 section 48(1), as read with section 40 of POCA.”

[7] In support of the argument that the court should condone the non-compliance with section 48(3) if any, the appellant referred to the case of National Director of Public Prosecutions v Seleoane & Others [2003] JOL 11137 (NC). In that case the court condoned the non-compliance to have the notice of forfeiture served on the respondents by Sheriff.

[8] In contention the respondents argued that the provisions of section 48(3) of POCA are pre-emptory in that the notice of forfeiture ‘shall’ be served on the respondents by Sheriff. It was submitted that Rule 4(1)(aA) of the Uniform Rules is applicable to interlocutory applications. Further that a forfeiture notice is not an interlocutory application but a self-standing application. It was the respondents’ argument that the only manner in which an application could be pending before court within the 90 day period was if there was service of the forfeiture by the Sheriff on the respondents.

[9] The respondents as well referred to the case of National Director of Public Prosecutions v Moolla 2010 (2) SACR 429 (GSJ) as far as the interpretation of the peremptory provisions of POCA are concerned. The court held that:

“the stringent and peremptory provisions of POCA ought not to be liberally interpreted, especially in instances of non-compliance therewith. Although forfeiture orders were extremely useful weapons in the fight against organised crime, a balance had to be struck between the individual’s constitutional rights and the obligation to eliminate crime. A statute that made serious inroads into the rights of an individual was to be construed in a manner that limited such inroads as far as possible…..”

[10] It is important to deal with this matter by making reference to the relevant sections of POCA. Section 38 of POCA provides that:

“38 Preservation of property orders

(1) The National Director may by way of an ex parte application apply to a High Court for an order prohibiting any person, subject to

such conditions and exceptions as may be specified in the order, from dealing in any manner with any property.

(2) The High Court shall make an order referred to in subsection (1) if there reasonable grounds to believe that the property concerned-

(a) is an instrumentality of an offence referred to in Schedule 1;

(b) is the proceeds of unlawful activities; or

(c) is property associated with terrorist and related activities.

[Sub-s. (2) substituted by s. 27 (1) of Act 33 of 2004.1

(3) A High Court making a preservation of property order shall at the same time make an order authorising the seizure of the property concerned by a police official, and any other ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order.

[Sub-s. (3) substituted by s. 6 of Act 38 of 1999.]

(4) Property seized under subsection (3) shall be dealt with in accordance with the directions of the High Court which made the relevant preservation of property order.”

[11] Section 39 deals with the notice of the preservation of property as follows:

“39 Notice of preservation of property orders

(1) If a High Court makes a preservation of property order, the National Director shall, as soon as practicable after the making of the order-

(a) give notice of the order to all persons known to the National Director to have an interest in property which is subject to the order; and

(b) publish a notice of the order in the Gazette

(2) A notice under subsection (1) (a) shall be served in the manner in which a summons whereby civil proceedings in the High Court are commenced, is served.

(3) 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.

(4) An appearance under subsection (3) shall be delivered to the National Director within, in the case of-

(a) a person upon whom a notice has been served under subsection (1) (a) ,14 days after such service; or

(b) any other person, 14 days after the date upon which a notice under subsection (1) (b) was published in the Gazette

(5) An appearance under subsection (3) shall contain full particulars of the chosen address for the delivery of documents concerning further proceedings under this Chapter and shall be accompanied by an affidavit stating-

(a) full particulars of the identity of the person entering the appearance;

(b) the nature and extent of his or her interest in the property concerned; and

(c) the basis of the defence upon which he or she intends to rely in opposing a forfeiture order or applying for the exclusion of his or her interests from the operation thereof.”

[12] In section 40 it is the duration of the preservation order that:

“40 Duration of preservation of property orders

A preservation of property order shall expire 90 days after the date on which notice of the 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 force in relation to the property subject to the preservation of property order; or

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

[13] The Act in section 48 deals with the forfeiture of property and provides that:

“48 Application for forfeiture order

(1) If a preservation of property order is in force the National Director, may apply to a High Court for an order forfeiting to the State all or any of the property that is subject to the preservation of property order.

(2) The National Director shall give 14 days notice of an application under subsection (1) to every person who entered an appearance in terms of section 39 (3). [Sub-s. (2) substituted by s. 26 of Act 24 of 1999.]

(3) A notice under subsection (2) shall be served in the manner in which a summons whereby civil proceedings in the High Court are commenced, is served.

(4) Any person who entered an appearance in terms of section 39 (3) may appear at the application under subsection (1)-

(a) to oppose the making of the order; or

(b) to apply for an order-

(i) excluding his or her interest in that property from the operation of the order; or

(ii) varying the operation of the order in respect of that property, and may adduce evidence at the hearing of the application.”

[14] The issue in this matter turns on the implication of the provisions of section 48(3) of POCA as far as the service of the forfeiture application is concerned. The section says the ‘notice shall be served in the manner in which a summons whereby civil proceedings in the High Court are commenced, is served’. The appeal court in Nkisimane and Others v Santam Insurance Co Ltd 1978 (2) SA 430 (A) cautioned that care must be exercised

“not to infer merely from the use of such labels [peremptory or directory] what degree of compliance is necessary and what the consequences are of non or defective compliance. These must ultimately depend upon the proper construction of the statutory provision in question, or, in other words, upon the intention of the lawgiver as ascertained from the language, scope and purpose of the enactment as a whole and the statutory requirement in particular.”

[15] The Constitutional Court in Mohunram v National Director of Public Prosecutions (Law Review Project as Amicus Curiae) [2007] ZACC 4 noted that forfeiture orders are ‘draconian’ in nature and stated as follows:

“Civil asset forfeiture constitutes a serious incursion into well-entrenched civil protections particularly those against arbitrary and excessive punishment and against arbitrary confiscation of property. Courts in this country and elsewhere have generally been astute to the fact that forfeiture of the instrumentality of crime can produce arbitrary and unjust consequences”.

[16] What is important is therefore to determine the intention of the legislature in the provisions of section 48 (3) of POCA. The question is whether non-compliance with the section renders the forfeiture application a nullity or such non-compliance can be condoned. As stated above in the matter of Mohunram above, the forfeiture orders are very drastic as they involve the confiscation of property. draconian in nature. The intention of the legislature from inserting the word ‘shall’ can be attributed to the very serious and consequences of forfeiture orders. It is thus important for the notice of the forfeiture application to come to the attention of the respondent. Section 48 (3) is clearly peremptory as non-compliance thereto, although not having a penalty, but have dire consequences.

[17] The appellant argued that the court can in the case of non-compliance with the provisions of section 48(3) exercise its inherent discretion and condone such non-compliance. As already stated above, the section is peremptory. In deciding the issue of condonation we should be mindful of the warning in Sefatsa and Others v Attorney-General, Transvaal and Another 1989 (1) SA 821 (A) where it was said that the court cannot have an inherent power which would entitle the court to act contrary to an express provision of an Act of Parliament.

[18] Courts function to interpret statutes and in instances of ambiguity in a statute, the court can exercise its discretion to fill in the gaps so as to bring the provisions of the statute in line with the meaning and purpose thereof. The provisions of section 48(3) of POCA are clear and unambiguous and there can be no difficulty in its interpretation. It is therefore not necessary for the court to interpret section 48(3) or condone any non-compliance.

J T DJAJE

ACTING PEDUTY JUDGE PRESIDENT

OF THE HIGH COURT, NORTH WEST DIVISION,

MAHIKENG

APPEARANCES

DATE OF HEARING: 03

MAY 2022

JUDGMENT RESERVED: 03

MAY 2022

DATE OF JUDGMENT: 30

AUGUST 2022

COUNSEL FOR THE PLAINTIFF: ADV WEST

COUNSEL FOR THE DEFENDANT: ADV J PISTOR SC