Stemele and Another v National Director of Public Prosecutions (3428/2015) [2017] ZAECPEHC 44 (14 September 2017)

Stemele and Another v National Director of Public Prosecutions (3428/2015) [2017] ZAECPEHC 44 (14 September 2017)

The court held that the forfeiture order was not erroneously sought or granted. The respondent was entitled under POCA to bring the preservation application ex parte and was only required to serve notice on persons known to have an interest in the property. The publication in the Gazette invited any other interested persons to join the proceedings. The non-joinder of the second applicant did not render the proceedings fatally flawed, as the respondent was unaware of her interest. The applicants failed to provide a satisfactory bona fide defence, as their explanations for the source of the money were unsupported by evidence and contradicted by police affidavits. The application for...

Citation
[2017] ZAECPEHC 44
Parties
Applicant: Siyabonga Samora Stemele; Applicant: Siphokazi Eunica Stemele; Respondent: National Director of Public Prosecutions
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
14 September 2017
Case Number
3428/2015
Procedural Posture
Civil Application / Application for Rescission of Forfeiture Order
Outcome
Application for rescission dismissed with costs.
Judges
J W Eksteen
Legal Topics
Prevention of Organised Crime Act, Forfeiture of Property, Rescission of Judgment, Non Joinder, Default Judgment
Criminal Law Civil Procedure Prevention of Organised Crime Act Forfeiture of Property Rescission of Judgment Non Joinder Default Judgment

Case Brief

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Parties

Siyabonga Samora Stemele

Applicant

Siphokazi Eunica Stemele

Applicant

National Director of Public Prosecutions

Respondent

Procedural Posture

Civil Application / Application for Rescission of Forfeiture Order

Legal Issues

  1. 1 Whether the forfeiture order was erroneously sought or granted in the absence of the applicants.
  2. 2 Whether non-joinder of the second applicant, as spouse in community of property, rendered the proceedings fatally flawed.
  3. 3 Whether the applicants provided a reasonable explanation for their default and demonstrated a bona fide defence under common law.

Ratio Decidendi

The court held that the forfeiture order was not erroneously sought or granted. The respondent was entitled under POCA to bring the preservation application ex parte and was only required to serve notice on persons known to have an interest in the property. The publication in the Gazette invited any other interested persons to join the proceedings. The non-joinder of the second applicant did not render the proceedings fatally flawed, as the respondent was unaware of her interest. The applicants failed to provide a satisfactory bona fide defence, as their explanations for the source of the money were unsupported by evidence and contradicted by police affidavits. The application for...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application for rescission of the forfeiture order is dismissed.
  • The applicants are ordered to pay the costs of the application.