Tamire v National Director of Public Prosecutions (663/2016) [2016] ZAECGHC 144 (6 December 2016)

Tamire v National Director of Public Prosecutions (663/2016) [2016] ZAECGHC 144 (6 December 2016)

The respondent failed to publish the preservation order in the Government Gazette as soon as practicable, only doing so 16 weeks after the order was granted, without providing any explanation. However, the applicant did not satisfy the jurisdictional requirements for rescission under section 47(1) of POCA, as he failed to demonstrate that the preservation order deprived him of the means to provide for his reasonable living expenses or caused undue hardship. The application for rescission was therefore not made out. Given the respondent's delay and the applicant's justified frustration, it would not be in the interests of justice to award costs against the applicant; instead, each party...

Citation
[2016] ZAECGHC 144
Parties
Applicant: Bereka Jemal Tamire; Respondent: National Director of Public Prosecutions
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
6 December 2016
Case Number
663/2016
Procedural Posture
Urgent Application / Counter Application for Rescission of Preservation Order Under POCA
Outcome
Counter-application for rescission of the preservation order dismissed; each party to pay their own costs.
Judges
G H Bloem
Legal Topics
Prevention of Organised Crime Act, Preservation Order, Forfeiture Application, Rescission of Order, Costs Award
Criminal Law Civil Procedure Prevention of Organised Crime Act Preservation Order Forfeiture Application Rescission of Order Costs Award

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Parties

Bereka Jemal Tamire

Applicant

National Director of Public Prosecutions

Respondent

Procedural Posture

Urgent Application / Counter Application for Rescission of Preservation Order Under POCA

Legal Issues

  1. 1 Whether the respondent complied with the statutory duty to publish notice of the preservation order as soon as practicable after it was granted.
  2. 2 Whether the applicant made out a case for rescission of the preservation order under section 47(1) of POCA.
  3. 3 Whether the applicant is entitled to costs given the respondent's delay in instituting forfeiture proceedings.

Ratio Decidendi

The respondent failed to publish the preservation order in the Government Gazette as soon as practicable, only doing so 16 weeks after the order was granted, without providing any explanation. However, the applicant did not satisfy the jurisdictional requirements for rescission under section 47(1) of POCA, as he failed to demonstrate that the preservation order deprived him of the means to provide for his reasonable living expenses or caused undue hardship. The application for rescission was therefore not made out. Given the respondent's delay and the applicant's justified frustration, it would not be in the interests of justice to award costs against the applicant; instead, each party...

Court Disposition

Counter-application for rescission of the preservation order dismissed; each party to pay their own costs.

Orders

  • Each party is ordered to pay his own costs of the counter-application.