The National Director of Public Prosecutions v Tutu Ndolose

On 16 November 2011, a TLB Volvo tractor belonging to the respondent was seized by police near Kei Bridge. The tractor was operated by the respondent's employee, Joe Ceba, who was allegedly excavating sand from the Kei River without authorization, contrary to section 24F of the National Environmental Management Act 107 of 1998. A preservation order was granted on 22 February 2012 under section 30(2) of the Prevention of Organised Crime Act 121 of 1998 (POCA). The applicant brought a forfeiture application on 11 July 2012, contending the tractor was an instrumentality of a schedule 1 offence. The respondent denied mining sand, claiming Ceba had taken the tractor to the river to wash it before repair, and alternatively, that he was digging a foundation for a homestead when the tractor sprang a leak. The respondent also argued the preservation order had expired and that the applicant's replying papers were delivered out of time.

• Whether the preservation order had expired under section 40 of POCA
• Whether the applicant's replying affidavit should be admitted despite being delivered out of time
• Whether sufficient evidence existed to establish on a balance of probabilities that the tractor was an instrumentality of a schedule 1 offence under POCA
• Whether the affidavits relied upon by the applicant complied with the requirements of the Justices of the Peace and Commissioners of Oaths Act
• Whether material factual disputes existed requiring referral to oral evidence
• Whether the forfeiture order should be granted

The application for a forfeiture order is dismissed. No order as to costs.

For a forfeiture order to be granted under section 50 of POCA, the applicant must prove on a balance of probabilities that the property is an instrumentality of a schedule 1 offence. Affidavits in motion proceedings must comply strictly with the requirements of the Commissioners of Oaths Act, including that a commissioner of oaths shall not administer an oath relating to a matter in which he or she has an interest (regulation 7), and must print their full name, business address, designation and area of appointment below their signature (regulation 4(2)). Non-compliance with regulation 7 is peremptory and renders the attestation void. Hearsay evidence in affidavits must state the source of information and grounds of belief, and failure to do so is a serious irregularity. Where the state has failed to produce reliable, admissible evidence establishing the commission of an offence, and the respondent has provided a properly attested innocent explanation that is not inherently improbable, the forfeiture application must fail.

The court observed that a preservation order published in the Gazette on 20 April 2012 referring to "the application" for a forfeiture order (using the definitive article) made it clear that the forfeiture application was pending as envisaged in section 40(a) of POCA. The court noted it is strictly speaking the respondent who ought to have applied for upliftment of the bar to opposing, having delivered his notice to oppose out of time, rather than the applicant having to justify its preservation order. The court commented that it is not open to a party to merely annex documentation to an affidavit without identifying the portions relied upon and indicating the case sought to be made. The court noted that an application for oral evidence must generally be made in limine, and that in any event no application for referral to oral evidence was made in this case. The court expressed that where a respondent has been granted leave to oppose out of time in the interests of justice, the court has discretion on costs and may decline to award costs to express disapproval of the tardiness.

This case establishes important principles regarding the evidential requirements for asset forfeiture applications under POCA. It emphasizes that strict compliance with the Commissioners of Oaths Act is required for affidavits to be admissible, including that commissioners must not have an interest in the matter and must properly identify themselves. The judgment reinforces that hearsay evidence must clearly state its source and basis, and that affidavits in motion proceedings serve as both pleadings and evidence. The case demonstrates that the state bears the burden of proving on a balance of probabilities that property is an instrumentality of a schedule 1 offence before forfeiture can be ordered, and that mere suspicion or inadequate evidence will not suffice. It also clarifies the operation of section 40 of POCA regarding when preservation orders expire.