Van der Burg and Another v National Director of Public Prosecutions

The applicants, a married couple with four children (three minors), owned and resided in a house in Athlone, Cape Town. From this residential property they operated an unlawful shebeen for several years, repeatedly selling liquor without a licence in contravention of the Liquor Act. Despite numerous police raids, seizures of liquor, arrests, written and oral warnings, and admission-of-guilt fines, the illegal activity persisted on a large scale and caused serious disturbance to neighbours, schools, and the surrounding community. The National Director of Public Prosecutions (NDPP) obtained a preservation order over the property in terms of the Prevention of Organised Crime Act 121 of 1998 (POCA), followed by a forfeiture order on the basis that the property was an instrumentality of an offence. The High Court granted the forfeiture order and the Full Court dismissed an appeal. The applicants sought leave to appeal to the Constitutional Court, arguing that POCA did not apply, that forfeiture was disproportionate, and that the best interests of their children had not been properly considered.

Condonation for late filing was granted; leave to appeal was granted; the appeal was dismissed and the forfeiture order in respect of the applicants’ property was upheld.

The case confirms the broad application of POCA forfeiture provisions beyond organised crime syndicates, clarifies the proportionality analysis required under section 25(1) of the Constitution, and provides important guidance on how children’s best interests must be considered in asset forfeiture cases without necessarily halting proceedings through the appointment of a curator ad litem.