Phumo and Another v National Director of Public Prosecutions (2024-104694) [2025] ZAGPPHC 637 (9 June 2025)

Phumo and Another v National Director of Public Prosecutions (2024-104694) [2025] ZAGPPHC 637 (9 June 2025)

The court found that the NDPP failed to comply with the procedural requirements for service and publication of the ex parte preservation order under section 39 of POCA. Service was effected at an incorrect address, and publication in the Government Gazette referenced the wrong year. The delay of four months in notifying the applicants and publishing the order was unexplained and constituted a breach of the duty of utmost good faith. These procedural defects infringed the applicants' constitutional rights and rendered the preservation order invalid and lapsed under section 40 of POCA. The urgency of the matter was established by the ongoing impact of the order on the applicants' ability to...

Citation
[2025] ZAGPPHC 637
Parties
Applicant: Kelebogile Precious Phumo; Applicant: Women Against Poverty and Hunger (Pty) Ltd; Respondent: National Director of Public Prosecutions
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 June 2025
Case Number
2024-104694
Procedural Posture
Urgent Application / Reconsideration of Ex Parte Preservation Order
Outcome
The ex parte preservation order is discharged. The NDPP is ordered to pay costs on an attorney and client scale.
Judges
Labuschagne
Legal Topics
Preservation Order, Service of Process, Constitutional Rights, Urgent Interdict, Prevention of Organised Crime Act
Criminal Law Civil Procedure Preservation Order Service of Process Constitutional Rights Urgent Interdict Prevention of Organised Crime Act

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Parties

Kelebogile Precious Phumo

Applicant

Women Against Poverty and Hunger (Pty) Ltd

Applicant

National Director of Public Prosecutions

Respondent

Procedural Posture

Urgent Application / Reconsideration of Ex Parte Preservation Order

Legal Issues

  1. 1 Whether the ex parte preservation order granted under section 38 of POCA was properly served and published as required by law.
  2. 2 Whether procedural defects in service and publication rendered the preservation order invalid or lapsed under section 40 of POCA.
  3. 3 Whether the applicants' constitutional rights were infringed by the delay and defects in notification.

Ratio Decidendi

The court found that the NDPP failed to comply with the procedural requirements for service and publication of the ex parte preservation order under section 39 of POCA. Service was effected at an incorrect address, and publication in the Government Gazette referenced the wrong year. The delay of four months in notifying the applicants and publishing the order was unexplained and constituted a breach of the duty of utmost good faith. These procedural defects infringed the applicants' constitutional rights and rendered the preservation order invalid and lapsed under section 40 of POCA. The urgency of the matter was established by the ongoing impact of the order on the applicants' ability to...

Court Disposition

The ex parte preservation order is discharged. The NDPP is ordered to pay costs on an attorney and client scale.

Orders

  • The ex parte preservation order granted on 18 September 2024 is discharged.
  • The National Director of Public Prosecutions is directed to pay the costs of the application and reconsideration application on an attorney and client scale, Scale A.