National Director of Public Prosecutions v Kalmar Industries SA (Pty) Ltd

Kalmar Industries SA (Pty) Ltd subcontracted Q6 Management Projects Africa (Pty) Ltd to refurbish corroded rubber tyred gantry cranes at the Port of Ngqura. A commercial dispute arose regarding payment, ownership of a purpose-built lifting platform, and alleged liens over a refurbished crane. Q6 alleged that Kalmar unlawfully appropriated the platform and equipment after Q6 was removed from site and laid theft charges. On the basis of these allegations, the National Director of Public Prosecutions (NDPP) obtained an ex parte preservation of property order under Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 (POCA) and sought forfeiture of the platform and equipment, contending they were instrumentalities of theft or proceeds of unlawful activities. Kalmar opposed, asserting the dispute was contractual and denying any theft or criminal conduct.

The appeal was dismissed with costs. The preservation and forfeiture orders were set aside. The wasted costs occasioned by the respondent’s non-appearance at an earlier hearing were ordered to be paid jointly and severally by the appellant’s attorneys, not recoverable from the respondent.

The case reaffirms the limits of POCA and cautions against its misuse in ordinary commercial disputes. It clarifies that civil forfeiture under Chapter 6 of POCA is confined to property genuinely connected to criminal activity and underscores the requirement of a reasonably direct functional link between property and crime.