The National Director of Public Prosecutions v Sithembiso Adolphus Gcaba

On 6 March 2021, Mr Gcaba was arrested at an ATM with 69 SASSA cards and R46,120 in cash. It was established that R118,000 had been withdrawn from ATMs using 62 of these cards over five hours. The NDPP obtained a preservation order on 28 September 2022, which was published in the Government Gazette on 14 October 2022. The NDPP issued a forfeiture application on 11 January 2023 (within 90 days of publication) but only served it, together with the preservation order, on 17 August 2023 (approximately 11 months after the preservation order was granted). The high court dismissed the forfeiture application on 27 October 2023, finding that the preservation order had lapsed because the forfeiture application was served after the 90-day period specified in s 40(a) of POCA.

• What is the meaning of 'pending' in s 40(a) of the Prevention of Organised Crime Act 121 of 1998 (POCA)?
• Does s 40(a) require only the issue of a forfeiture application within 90 days of publication of a preservation order, or both issue and service?
• Whether proceedings under Chapter 6 of POCA are in rem or in personam?
• What are the consequences of failure to serve a preservation order 'as soon as practicable' as required by s 39(1)(a)?
• Whether constitutional values and the right to property affect the interpretation of s 40(a)?

The appeal was upheld by majority decision. The high court order dismissing the forfeiture application was set aside and replaced with an order granting forfeiture of R46,120 to the State in terms of s 50(1) of POCA. The order directed the property to be deposited into the Criminal Asset Recovery Account, required publication in the Government Gazette, provided for service on the respondent within 20 days, and set out time periods for affected persons to apply for variation, rescission or exclusion orders.

The majority binding principle is that under s 40(a) of POCA, a forfeiture application is 'pending' before the High Court once it has been issued, regardless of whether it has been served on the respondent. The preservation order does not expire at the end of 90 days if the forfeiture application has been issued within that period, even if service occurs later. This is because: (1) Chapter 6 proceedings are in rem (focused on property rather than persons); (2) as a matter of settled procedural law in South Africa, civil actions commence with the issue, not service, of process; (3) POCA does not expressly require service within the 90-day period; and (4) the interpretation avoids absurdities where there may be no identifiable person to serve or where persons fail to enter appearances.

The majority noted that while POCA does not prescribe a specific time limit for service of the forfeiture application, it should be served within a 'reasonable time', though the judgment does not define what constitutes reasonable. The majority acknowledged that preservation orders limit property rights but found that post-forfeiture safeguards in POCA (such as rescission applications under ss 47, 49, 54, and 55) adequately protect affected persons' rights. The minority made important obiter observations: (1) that the failure to give reasons when making an order, even in unopposed matters involving significant legal issues, is inappropriate and undermines judicial accountability; (2) that 90 days is a reasonable period for the NDPP to serve a forfeiture application; (3) that the NDPP as an organ of state must conduct itself as a 'model litigant' and its failure to serve for 11 months without proper explanation constituted 'sheer ineptitude'; (4) that appellate courts should address matters of judicial accountability even when parties have not raised them. The minority also cautioned that the majority's interpretation could permit indefinite prolongation of preservation orders and creates legal uncertainty about when service must occur.

This case establishes (by majority) that under s 40(a) of POCA, a forfeiture application is 'pending' once it is issued, not requiring service within the 90-day period after publication of a preservation order. The decision creates a split in judicial authority on the interpretation of 'pending' in POCA, with the minority expressing strong concerns about legal uncertainty and potential for abuse. The case demonstrates fundamental disagreement about: (1) whether POCA proceedings are in rem or require notice to affected persons; (2) how to balance crime-fighting objectives against property rights; (3) the application of constitutional interpretation principles to asset forfeiture legislation. The minority judgment criticized the majority for failing to specify when service must occur, potentially allowing indefinite delays. The case also addresses judicial accountability by criticizing the practice of issuing orders without reasons, even in unopposed matters involving complex legal issues.