The National Director of Public Prosecutions v Gcaba

Mr Sithembiso Adolphus Gcaba was arrested on 6 March 2021 after police found him in possession of 69 SASSA cards and cash totalling R46 120, suspected to be proceeds of unlawful activity linked to fraudulent ATM withdrawals. The NDPP obtained an ex parte preservation order under s 38 of the Prevention of Organised Crime Act 121 of 1998 (POCA) on 28 September 2022, which was published in the Government Gazette on 14 October 2022. Within 90 days of publication, on 11 January 2023, the NDPP issued an application for a forfeiture order under s 48 of POCA. However, service of the forfeiture application and preservation order on Mr Gcaba only occurred on 17 August 2023, after the expiry of the 90-day period. The High Court dismissed the forfeiture application, holding that the preservation order had lapsed because the forfeiture application was not served within 90 days. The NDPP appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court’s order dismissing the forfeiture application was set aside and replaced with an order declaring R46 120 forfeit to the State under s 50(1) of POCA, together with consequential directions regarding deposit of the funds, publication in the Government Gazette, service of the order, and rights of affected parties to seek variation, rescission, or exclusion.

This judgment resolves conflicting High Court authority on the interpretation of 'pending' in s 40(a) of POCA. It clarifies that the issuance, not service, of a forfeiture application within 90 days is sufficient to prevent the lapse of a preservation order. The decision strengthens the effectiveness of civil forfeiture under POCA and affirms a purposive, anti-organised-crime approach consistent with Constitutional Court jurisprudence.