The National Director of Public Prosecutions (Ex Parte Application)

The National Director of Public Prosecutions (NDPP) brought an ex parte application in terms of section 38(1) of the Prevention of Organised Crime Act 121 of 1998 (POCA) for a preservation order over a Toyota Prado motor vehicle. The vehicle was intercepted at a toll plaza and found to have been modified to conceal 50.390 kilograms of heroin valued at approximately R50 million. The driver, a Mozambican national, was arrested and charged with possession and dealing in heroin. The registered owner of the vehicle, a Tanzanian national, could not be traced. The High Court (court a quo) struck the application from the roll and directed that it be served if re-enrolled, holding that the NDPP had to justify proceeding ex parte. The NDPP appealed against that order.

The appeal was allowed. The order of the court a quo was set aside and replaced with an order permitting the NDPP to re-enrol the section 38 application as an ex parte application, to be set down in accordance with Uniform Rule 6(4)(a), and to be considered and decided ex parte on its merits by a judge of the High Court.

The judgment clarifies that section 38 preservation applications under POCA may validly be brought ex parte without additional requirements imposed by courts or practice directives. It confirms the civil nature of Chapter 6 forfeiture proceedings and reinforces the supremacy of statutes and Uniform Rules over local practice directives. The case is significant for asset forfeiture jurisprudence and the effective operation of POCA in combating organised crime.