The National Director of Public Prosecutions (Ex Parte Application)

On 16 August 2019, three men were found in possession of carcasses of poached animals in a Toyota Hilux vehicle in Mpumalanga. The men were arrested and charged, and the vehicle and rifle were seized under s 20 of the Criminal Procedure Act. The case was struck from the criminal roll on 30 January 2020 without the prosecution's knowledge, and the magistrate ordered the vehicle returned to its owner. The NDPP then applied to the Mpumalanga Division of the High Court for a preservation order under s 38 of the Prevention of Organised Crime Act 121 of 1998 (POCA). The high court (Roelofse AJ) struck the application from the roll on the basis that urgency had not been established as required by the court's practice directive, although accepting that a proper case had been made out on the merits. The NDPP appealed.

• Whether the NDPP is required to prove urgency when applying for a preservation order under s 38 of POCA
• Whether applications under s 38 of POCA are inherently urgent by their nature
• Whether the high court's practice directive requiring proof of urgency is compatible with s 38 of POCA and rule 6(4)(a) of the Uniform Rules of Court
• The relationship between practice directives and statutory provisions/Uniform Rules

The appeal was upheld. The high court's order striking the application from the roll was set aside and substituted with an order that: (a) the NDPP may re-enroll the s 38(1) POCA application in its original ex parte form with the Registrar; (b) the application must be set down in accordance with rule 6(4)(a) of the Uniform Rules; and (c) a judge must consider and decide the application as soon as reasonably and practically possible after re-enrolment, on its merits in accordance with the requirements of s 38(2) of POCA.

Applications for preservation orders under s 38 of POCA are inherently urgent by their nature and may be brought ex parte in accordance with rule 6(4)(a) of the Uniform Rules of Court without the applicant being required to establish urgency. Practice directives are subordinate to statutes, the common law and the Uniform Rules and cannot be applied to restrict, undermine or negate these provisions. Practice directives must facilitate what a statute requires and should not place obstacles in the way of achieving the objects of a statute. A practice directive that imposes requirements for proof of urgency on s 38 POCA applications and sets strict timelines for their hearing is incompatible with s 38 of POCA and rule 6(4)(a), and cannot be given effect. Such applications must be heard as soon as reasonably and practically possible after filing.

The court noted that the misclassification of s 38 applications as ordinary urgent applications was irregular. The court emphasized that it is untenable to give effect to s 38 of POCA by recourse to practice directives that may delay the hearing of applications for forfeiture orders. While practice directives provide essential guidance for the daily functioning of courts and are an important means by which court work may be carried out, they should not derogate from legislation, common law or rules of court that have obligatory force. The competence of courts to give practice directives must be exercised in a manner that facilitates, rather than hinders, statutory requirements.

This case reinforces and clarifies the position established in the Ramadhani judgment regarding the inherent urgency of preservation order applications under POCA. It emphasizes the supremacy of statutory provisions and Uniform Rules over practice directives, establishing that practice directives must facilitate rather than obstruct the achievement of statutory objectives. The judgment is significant for asset forfeiture proceedings in South Africa, as it ensures that applications for preservation orders under s 38 of POCA can be heard expeditiously without the need to establish urgency separately. It also provides important guidance on the proper role and limits of practice directives in relation to statutory procedures.