The National Director of Public Prosecutions (Ex Parte Application)

Three men were arrested in August 2019 in Mpumalanga after being found in possession of poached wildlife carcasses and a rifle, discovered in a Toyota Hilux vehicle owned by one of them. The vehicle and rifle were seized by SAPS under s 20 of the Criminal Procedure Act 51 of 1977. The criminal case was later struck from the magistrates’ court roll without notice to the prosecution, and the magistrate ordered the return of the vehicle to the accused. In response, the National Director of Public Prosecutions (NDPP) brought an ex parte application under s 38 of the Prevention of Organised Crime Act 121 of 1998 (POCA) in the High Court for a preservation of property order. The High Court struck the application from the roll on the basis that urgency had not been established in accordance with a court practice directive, despite accepting that the merits for a preservation order were satisfied.

The appeal was upheld. The High Court order striking the application from the roll was set aside and replaced with an order permitting the NDPP to re-enrol the s 38 POCA application as an ex parte application, to be set down in accordance with Uniform Rule 6(4)(a), and to be considered by a judge as soon as reasonably and practically possible on its merits.

The judgment reaffirms that preservation of property applications under s 38 of POCA are inherently urgent and need not separately plead urgency. It clarifies the hierarchy between statutes, Uniform Rules, and High Court practice directives, confirming that practice directives cannot override or restrict statutory procedures. The decision strengthens the effectiveness of POCA asset preservation mechanisms and promotes uniformity in procedural treatment across High Courts.