The National Director of Public Prosecution (Ex Parte Application)

On 6 March 2016, police intercepted a Toyota Prado motor vehicle at Nkomazi toll plaza and discovered 50 kilograms of heroin (with an estimated street value of R50 million) hidden in the modified rear fuel tank. The driver, Mr Jeronimo Masoio Mateus Matusse, a Mozambican national, was arrested and charged with possession and dealing in heroin. The registered owner of the vehicle was Haji Ramadhani, a Tanzanian national who could not be traced by police at any of the addresses on record. On 14 October 2016, the National Director of Public Prosecutions (NDPP) lodged an ex parte application with the Gauteng Division, Pretoria (functioning as the Mpumalanga Division, Mbombela) for a preservation order in terms of section 38(1) of the Prevention of Organised Crime Act 121 of 1998 (POCA) in respect of the Prado. The application was initially set down to be heard in chambers on 20 October 2016 but was postponed to 25 October 2016. On 25 October 2016, the matter was heard in open court before Legodi J, who reserved judgment and on 10 November 2016 struck the application off the roll, directing the NDPP to serve the application if it wished to re-enroll it. The NDPP appealed this order.

• Whether the NDPP is entitled to proceed by way of an ex parte application under section 38(1) of POCA without showing that the property would be dissipated if notice were given
• Whether the provisions of the Mpumalanga Division of the High Court Practice Directive restricting ex parte applications override section 38(1) of POCA and Uniform Rule 6(4)(a)
• Whether the NDPP must demonstrate exceptional circumstances to justify proceeding ex parte under section 38(1) of POCA
• The proper procedure for setting down and hearing ex parte applications under section 38(1) of POCA

The appeal was allowed. The order of the court a quo was set aside and substituted with an order permitting the appellant to re-enroll the application in its original form as an ex parte application in terms of section 38(1) of POCA; directing that the application be set down in accordance with Uniform Rule 6(4)(a); and directing that a judge of the court a quo consider and deal with the application as soon as reasonably and practically possible as an ex parte application without need for service, deciding it on its merits in accordance with section 38(2) of POCA.

Section 38(1) of POCA expressly permits the NDPP to bring applications for preservation orders by way of ex parte application, and no additional requirements (such as demonstrating exceptional circumstances or risk of dissipation) need be shown beyond compliance with section 38(2). Practice directives are subordinate to statutes, common law, and the Uniform Rules of Court and cannot restrict or undermine statutory provisions. Ex parte applications under section 38(1) must be set down in accordance with Uniform Rule 6(4)(a) and should be considered by a judge as soon as reasonably and practically possible after filing. Proceedings under Chapter 6 of POCA constitute civil proceedings that may be invoked prior to or in the absence of a criminal conviction.

The court observed that the legislature, when enacting POCA, was aware of forfeiture provisions in section 35 of the Criminal Procedure Act but nonetheless created Chapter 6 as an independent civil remedy. The court noted that where multiple forfeiture processes exist, it is for the relevant State entities to determine which process is most appropriate, and courts should not interfere with such decisions. The court referenced the preamble to POCA, noting the legislative intention that no person should benefit from the fruits of unlawful activities. The court also noted that safeguards exist to protect the rights of affected parties, including the giving of notice under section 39, the ability to apply for variation or rescission under section 47, and the opportunity to be heard before forfeiture orders are granted under section 48. The court observed that ex parte applications under section 38 are inherently urgent by their nature given the purpose of preservation orders.

This judgment is significant in South African jurisprudence as it clarifies the procedure for ex parte applications under section 38(1) of POCA. It establishes that the NDPP has a statutory right to proceed ex parte without needing to demonstrate exceptional circumstances or a risk of dissipation of property. The judgment confirms that practice directives cannot override statutory provisions or the Uniform Rules of Court, and clarifies the hierarchical relationship between statutes, rules, and practice directives. It reinforces the civil nature of proceedings under Chapter 6 of POCA and their independence from criminal forfeiture proceedings. The case affirms the legislative intention to provide the NDPP with effective tools to combat organized crime by preserving property pending forfeiture proceedings, while noting that adequate safeguards exist to protect the rights of affected parties through subsequent notice provisions and the ability to vary or rescind preservation orders.