National Director of Public Prosecutions v Bacela and Another

The National Director of Public Prosecutions (NDPP) obtained a preservation order under Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 (POCA) against assets owned by Shirley Dali Bacela and her company, Mafisa Teg Transport (Pty) Ltd, allegedly used as instruments of drug trafficking and money laundering. After the respondents entered an appearance to oppose forfeiture and nominated their attorneys as the address for service, the NDPP served the subsequent forfeiture application on the respondents’ attorneys rather than via the Sheriff. The respondents nevertheless filed detailed answering affidavits. The High Court held that service was defective because s 48(3) of POCA required service by the Sheriff, dismissed the forfeiture application without considering its merits, and the Full Court majority upheld that decision. The NDPP appealed to the Supreme Court of Appeal.

The appeal was upheld with costs, including the costs of two counsel. The order of the Full Court was set aside and replaced with an order remitting the matter to the North West Division of the High Court, Mahikeng, for determination of the merits of the forfeiture application.

This judgment clarifies that forfeiture applications under POCA may validly be served on attorneys of record under rule 4(1)(aA), notwithstanding s 48(3)’s reference to service as for a summons. It reinforces a substantive, purposive approach to civil procedure, discourages technical defences in the absence of prejudice, and underscores the binding force of Supreme Court of Appeal precedent on lower courts. The case is significant for asset forfeiture litigation and the application of procedural rules in statutory contexts.