Qwememe and Others v National Director of Public Prosecutions and Another (298/2018) [2020] ZAECBHC 1 (14 January 2020)

Qwememe and Others v National Director of Public Prosecutions and Another (298/2018) [2020] ZAECBHC 1 (14 January 2020)

The court found that the applicants had established sufficient grounds for rescission of the forfeiture order, including a reasonable explanation for their default and a bona fide defence with prospects of success. The applicants demonstrated that some of the forfeited property was acquired long before the alleged offences and that the assets were linked to legitimate business activities. The court held that the issue of whether the property constituted an instrumentality of an offence or proceeds of crime should be fully ventilated in the main forfeiture application, allowing both parties to present their evidence and arguments. The applicants' constitutional rights to property warranted...

Citation
[2020] ZAECBHC 1
Parties
Applicant: Simphiwe Qwememe; Applicant: Lulalma Qwememe; Applicant: Kholiswa Qwememe; Respondent: National Director of Public Prosecutions; Respondent: Sean Christensen
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
14 January 2020
Case Number
298/2018
Procedural Posture
Review Application / Application for Rescission of Forfeiture Order and Leave to Oppose Forfeiture Application
Outcome
Application for rescission of forfeiture order granted; applicants permitted to oppose forfeiture application and file answering affidavits; each party to pay their own costs.
Judges
Dawood
Legal Topics
Asset Forfeiture, Rescission of Judgment, Instrumentality of Offence, Arbitrary Deprivation of Property, Condonation, Constitutional Property Rights
Criminal Law Civil Procedure Asset Forfeiture Rescission of Judgment Instrumentality of Offence Arbitrary Deprivation of Property Condonation Constitutional Property Rights

Case Brief

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Parties

Simphiwe Qwememe

Applicant

Lulalma Qwememe

Applicant

Kholiswa Qwememe

Applicant

National Director of Public Prosecutions

Respondent

Sean Christensen

Respondent

Procedural Posture

Review Application / Application for Rescission of Forfeiture Order and Leave to Oppose Forfeiture Application

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the forfeiture order.
  2. 2 Whether the applicants have a bona fide defence with prospects of success against the forfeiture application.
  3. 3 Whether the applicants should be granted leave to oppose the forfeiture application and file answering affidavits.

Ratio Decidendi

The court found that the applicants had established sufficient grounds for rescission of the forfeiture order, including a reasonable explanation for their default and a bona fide defence with prospects of success. The applicants demonstrated that some of the forfeited property was acquired long before the alleged offences and that the assets were linked to legitimate business activities. The court held that the issue of whether the property constituted an instrumentality of an offence or proceeds of crime should be fully ventilated in the main forfeiture application, allowing both parties to present their evidence and arguments. The applicants' constitutional rights to property warranted...

Court Disposition

Application for rescission of forfeiture order granted; applicants permitted to oppose forfeiture application and file answering affidavits; each party to pay their own costs.

Orders

  • The late filing of the application is condoned.
  • The forfeiture order granted on 19 June 2018 in Case No. 298/2018 is rescinded.