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[2010] ZAGPJHC 56
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National Director of Public Prosecutions v Moolla (07/23918) [2010] ZAGPJHC 56; 2010 (2) SACR 429 (GSJ) (28 July 2010)
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SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO:
07/23918
In the matter between:
THE NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
Applicant
and
RAZEENA
MOOLLA
Respondent
J U D G M E N T
MOSHIDI, J
:
INTRODUCTION
[1] This
application raises a rather technical yet important and novel issue.
The crisp issue is whether the
preservation
order obtained by the applicant against the respondent had lapsed
when the applicant issued and served a forfeiture
notice of
application on the respondent. The applicant seeks a forfeiture
order against the respondent in terms of s 50 of the
Prevention of
Organised Crime Act 121 of 1998 (“
POCA
”).
The subject of the forfeiture order sought is the immovable property
of the respondent described as Erf 468, Mayfair
West, Johannesburg,
under Title Deed Number T4061/2004 (“
the
property
”).
The correct description of the property becomes more relevant later.
THE BRIEF RELEVANT BACKGROUND
[2] In the
light of the narrow issue to be determined
in
the application, I deemed it unnecessary to set out in full the
history of the matter. Pursuant to information received that
the
occupants of the property were manufacturing and dealing in drugs,
the South African Police Service (“
SAPS
”),
on 9 July 2006 raided the property. On arrival, the SAPS encountered
the respondent and her husband Leyakat Ali Khan
(“
Khan
”).
At the time, Khan admitted that the manufacturing of drugs was
indeed taking place at the property. However, the respondent’s
version has since changed on this aspect. On securing the property,
the SAPS found the finished product of CAT, chemicals and
equipment
used to manufacture the CAT. All these items were found in different
rooms. Subsequent forensic tests revealed that
the substance seized
at the property was indeed CAT (Methacathinone) listed in Part III of
Schedule 2 of the
Drugs and Drug Trafficking Act 140 of 1992
. The
value was estimated at R1 million. The respondent and Khan were
arrested.
[3] On 9
October 2007, the applicant, as usual, obtained an
ex
parte
preservation
order against the respondent in terms of
s 38(1)
read with
s 74(1)(a)
of POCA.
Section 38(1)
of POCA provides as follows:
“
38.
Preservation of property orders.
–
(1) The National Director may by way of an ex parte application apply
to a High Court for an order prohibiting any person,
subject to such
conditions and exceptions as may be specified in the order, from
dealing in any manner with any property.
(2) The High Court shall make an order referred to in subsection
(1) if there are reasonable grounds to believe that the property
concerned -
is an instrumentality of an offence referred to in Schedule 1;
is the proceeds of unlawful activities; or
is property associated with terrorist and related activities.
(3) A High Court making a preservation of property order shall at
the same time make an order authorising the seizure of the property
concerned by a police official, and any other ancillary orders that
the court considers appropriate for the proper, fair and effective
execution of the order.
(4)
Property seized under subsection (3) shall be dealt with in
accordance with the directions of the High Court which made the
relevant preservation of property order.
”
Pursuant to
the order, the papers served on the respondent drew her attention to
the fact that the applicant will, within 90 days,
apply in terms of
s
48
of POCA for an order declaring the property forfeited to the
State. The respondent was also informed of her right to oppose the
forfeiture application. In the context of the present application, it
becomes necessary to deal more fully with the provisions
of
s 48
of
POCA. For present purposes, however, it suffices to record that
pursuant to the granting of the preservation order, there was
protracted litigation between the parties. The upshot was that the
preservation order granted in favour of the applicant would
lapse 90
days after the date on which notice of the making of the order is
published in the Government Gazette. This is provided
for in terms
of
s 40
of POCA. The preservation order was published in the
Government Gazette on 14/12/2007. The preservation order was to
lapse on
13/3/2008. This was common cause.
[4] In giving
notice to the respondent and, indeed all interested parties in the
property, and publishing the preservation order
in the Government
Gazette, the applicant did so in compliance with
s 39
of POCA, which
provides as follows:
“
39.
Notice of preservation of property orders.
–
(1) If a High Court makes a preservation of property order, the
National Director shall, as soon as practicable after the
making of
the order –
give notice of the order to all persons known to the National
Director to have an interest in property which is subject to the
order; and
publish a notice of the order in the Gazette.
(2) A notice under subsection (1)(a) shall be served in the
manner in which a summons whereby civil proceedings in the High Court
are commenced, is served.
(3) Any person who has an interest in the property which is
subject to the preservation of property order may enter an appearance
giving notice of his or her intention to oppose the making of a
forfeiture order or to apply for an order excluding his or her
interest in the property concerned from the operation thereof.
(4) An appearance under subsection (3) shall be delivered to the
National Director within, in the case of -
(a) a person upon whom a notice has been served under subsection
(1)(a), 14 days after such service; or
any other person, 14 days after the date upon which a notice
under subsection (1)(b) was published in the Gazette.
(5) An appearance under subsection (3) shall contain full
particulars of the chosen address for the delivery of documents
concerning
further proceedings under this Chapter and shall be
accompanied by an affidavit stating -
full particulars of the identity of the person entering the
appearance;
the nature and extent of his or her interest in the property
concerned; and
the basis
of the defence upon which he or she intends to rely in opposing a
forfeiture order or applying for the exclusion of
his or her
interests from the operation thereof.
”
On the other
hand,
s 40
of POCA, which regulates the lifespan of a preservation
order, and which is of critical importance to the present
application,
provides as follows:
“
40.
Duration of preservation of property orders.
–
(1) A preservation of property order shall expire 90 days after the
date on which notice of the making of the order is published
in the
Gazette unless –
there is an application for a forfeiture order pending before the
High Court in respect of the property, subject to the preservation
of property order;
there is an unsatisfied forfeiture order in force in relation to
the property subject to the preservation of property order; or
the order
is rescinded before the expiry of that period.
”
The provisions in
s 40(a)
are of particular relevance in the context
of the present application.
S 48
provides for the application
foreshadowed in
s 40(a)
, and reads as follows:
“
48.
Application for forfeiture order.
–
(1) If a preservation of property order is in force the National
Director may apply to a High Court for an order forfeiting
to the
State all or any of the property that is subject to the preservation
of property order.
(2) The National Director shall give 14 days notice of an
application under subsection (1) to every person who entered an
appearance
in terms of
section 39(3).
(3) A notice under subsection (2) shall be served in the manner
in which a summons whereby civil proceedings in the High Court are
commenced, is served.
(4) Any person who entered an appearance in terms of
section
39(3)
may appear at the application under subsection (1) -
to oppose the making of the order; or
to apply for an order –
excluding his or her interest in the property from the operation
of the order; or
varying the operation of the order in respect of that property,
and may
adduce evidence at the hearing of the application.
”
THE MAIN ISSUES TO BE DETERMINED
[5] The
critical and determinative issues in the present application alluded
to earlier, require to be set out in greater detail.
These are that,
in terms of
s 4
0 of POCA, quoted above, the preservation order should
expire 90 days after the date on which notice of the making of the
order
is published in the Gazette. The preservation order was
published in the Government Gazette on 14/12/2007. The 90
th
day therefore fell on 13/3/2008. On the latter date, the applicant
issued, through the Registrar of this Court, a forfeiture notice
of
application in terms of the provisions of
s 48
of POCA in respect of
the property. The notice of motion was served on the respondent’s
erstwhile attorneys of record, Biccari
Bollo and Mariano, on
14/3/2008. This was clearly on the 91
st
day of the publication in the Government Gazette. The respondent’s
attorneys aforesaid did not only serve and file a notice
of
opposition, but also filed and served on the applicant a notice in
terms of Rule 30 of the Uniform Rules of Court on 26/3/2008.
On
10/6/2008, the respondent filed and served a short answering
affidavit dealing mainly with what the respondent alleged was
a
defective notice of motion served on her by the applicant on
14/3/2008. However, the respondent, later, and pursuant to some
interlocutory proceedings between the parties, filed and served an
answering affidavit dealing with the merits of the forfeiture
order
application. This was on 12/12/2008.
[6] At the
commencement of the hearing of the present application, and by
agreement between the parties, the Court was requested
to first
determine the question whether there was in fact in place a
preservation order when the applicant launched the present
application, in terms of s 48 of POCA. This, by necessary
implication, also involved the correct construction to be placed on
the provisions of ss 39 and 40 of POCA, as well as the purpose of
POCA.
[7] In
advancing its case, counsel for the applicant firstly argued that the
preservation order had n
ot
lapsed, before the expiration of the 90 days as the forfeiture
application was pending before the Court. In this regard, the
applicant, whilst admitting that the forfeiture application was
issued on 90
th
day after publication in the Government Gazette and served on the
respondent on 91
st
day, urged the Court to condone the 1 day non-compliance with the
relevant statutory requirements. The alternative argument advanced
was that the Court ought to use its inherent jurisdiction to condone
the applicant’s failure to comply with the statutory
time-limits since the applicant had demonstrated substantial
compliance with the provisions of POCA.
[8] On the
other hand, counsel for the respondent, in urging the Court to find
that the preservation order had in fact lapsed,
relied on,
inter
alia
,
Levy
v National Director of Public Prosecutions
2002 (1) SACR 162
(W), as well as certain provisions of the
Constitution, notably ss 25 and 39(2) of the Constitution of the
Republic of South Africa
Act, 106 of 1996. It was also argued on
behalf of the respondent that, not only was the notice of application
for the forfeiture
order defective, but the service thereof on the
respondent’s attorneys, instead of service on the respondent,
was defective,
and not in accordance with the Rules of Court.
[9] Indeed,
the provisions, purpose and scope of POCA are by and large stringent
and invasive. Little wonder that in
Mohamed
NO v Director of National Public Prosecutions and Another
2002
(2) SACR 93
(W), the constitutionality of the process governing the
granting of preservation orders was challenged by a number of
applicants.
In concluding that the procedure prescribed in Chapter 6
of POCA for the obtaining of a preservation of property and a seizure
order was unconstitutional, Cloete J (as he then was) at para [21]
observed that:
“
The
procedure envisaged in chap 6 of the Act therefore constitutes a
gross invasion of the rights of a person affected by a preservation
of property order. The legal representatives of the NDPP and the
Minister emphasised that a preservation of property order (and
accordingly the concomitant seizure order) are of limited duration,
in that in terms of s 40
(a)
of the Act they
expire 90 days after the date on which notice of the making of the
preservation of property order is published in
the
Government
Gazette
, unless
there is an application for a forfeiture order 'pending' before the
High Court in respect of the property which is subject
to such
preservation order (
Levy
v National Director of Public Prosecutions
2002
(1) SACR 162 (W))
;
and that the provisions of
chap 6 are
aimed at the expeditious determination of an application for a
forfeiture order. That is no answer. An infringement of
a right does
not cease to be such because it is of limited duration. The essential
question is whether the infringement can be
constitutionally
justified
.”
The matter was referred to the
Constitutional Court. However, the latter, in setting aside the
decision of the High Court, and
referring the matter back to the High
Court, and in
National
Director of Public Prosecutions v Mohamed NO
[2002] ZACC 9
;
2002 (2) SACR 196
(CC) at para
[14]
, described the purpose of POCA as
follows:
“
[14]
The Act's overall purpose can be gathered from its long title and
preamble and summarised as follows: The rapid growth of organised
crime, money laundering, criminal gang activities and racketeering
threatens the rights of all in the Republic, presents a danger
to
public order, safety and stability, and threatens economic stability.
This is also a serious international problem and has been
identified
as an international security threat. South African common and
statutory law fail to deal adequately with this problem,
because of
its rapid escalation and because it is often impossible to bring the
leaders of organised crime to book, in view of
the fact that they
invariably ensure that they are far removed from the overt criminal
activity involved. The law has also failed
to keep pace with
international measures aimed at dealing effectively with organised
crime, money laundering and criminal gang
activities. Hence the need
for the measures embodied in the Act.
”
Furthermore, and previously in
S
v Dlamini
[1999] ZACC 8
;
1999 (2)
SACR 51
(CC) at para
[68]
, Kriegler J, said:
“
[68]
Although the level of criminal activity is clearly a relevant and
important factor in the limitations exercise undertaken in
respect of
s 36, it is not the only factor relevant to that exercise. One must
be careful to ensure that the alarming level of
crime is not used to
justify extensive and inappropriate invasions of individual rights.
It is well established that s 36 requires
a court to counterpoise the
purpose, effects and importance of the infringing legislation on the
one hand against the nature and
importance of the right limited on
the other. …
”
[10] From the above legal
principles, it is more than plain that the rather stringent and
peremptory provisions of POCA ought not
to be liberally interpreted.
This is more so in instances of non-compliance, as is the case in the
present application. Although
forfeiture orders remain extremely
useful weapons in the fight
against
organized crime, it is imperative to strike a delicate balance
between the constitutional rights of the individual involved
and the
obligation to eliminate crime.
[11] I now
turn to the arguments advanced on behalf of the applicant as set out
above. The crisp issue is whether the issuing
of the preservation
order with the Registrar of this Court on 13/3/2008, i.e. on the 90
th
day following publication in the Government Gazette on 14/12/2007,
and before service thereof on the respondent on 14/3/2008, it
can be
argued that the preservation order was “
pending
”
before this Court, as envisaged in s 40(a) of POCA. The applicant
indeed argued that the preservation order had not lapsed.
The issue
was pertinently raised and resolved by Goldstein J in
Levy
v National Director of Public Prosecutions (supra)
.
In exactly similar circumstances as in the present matter where the
forfeiture application was filed with the Registrar within
the 90
th
day and served on the applicant’s attorneys 91 days after the
date of the publication in the Government Gazette in terms
of s
39(1)(b) of POCA, Goldstein J at para [9] concluded that:
“
At
best for the National Director the word 'pending' is ambiguous and
thus may be interpreted as requiring service of the application
on a
respondent or not doing so. Where a statute makes serious inroads on
the rights of an individual the Court ought to lean in
favour of a
construction which will result in such inroads being as limited as
possible. Compare
Mahlangu
at para [31]. It
follows that service of the application is necessary to make it
pending. I find support for this view in the consideration
that, if
it were to be held that service on the Registrar is sufficient to
render an application pending, the person bound by the
preservation
order would have no knowledge that he was bound before service on him
occurred, since there is no obligation on a
prospective respondent to
enquire at the Registrar's office whether an application has been
delivered there (
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972
(1) SA 773
(A) at 781G).
”
The application for a forfeiture order served on the respondent was
set aside. For the same reasons present in the current application,
the conclusion that by the time the application for a forfeiture
order was brought, the preservation order had lapsed, became
irresistible. The applicant therefore in terms of s 48 of POCA was
not entitled to bring the application.
[12] In addition, in
Mahlangu
and Another v Van Eeden and Another
[2000] 3 All SA 321
(LCC), in a review in terms of
s 20(1)(c)
of the
Extension of Security of Tenure Act 62 of 1997
, the Court was called
upon to review a decision of the second respondent, a magistrate of
the Delmas Magistrate’s Court,
in proceedings where the first
respondent, as plaintiff, sued the first and second applicants for
eviction. In setting aside the
magistrate’s decision, and at
para [27], Dodson J said:
“
For
the above reasons, I am of the view that when pending proceedings are
referred to at common law, they are proceedings which
have commenced
by the service and not the mere issue of summons.
”
In my view, the same procedure applies to motion proceedings.
[13] There is
indeed an additional reason why the provisions of POCA, in the
circumstances of the present matter, ought to be construed
in favour
of the respondent. That is, that the property forming the subject
matter of the preservation order, and the concomitant
and intended
forfeiture order, constitutes the residence of the respondent and her
family. The respondent’s right to property,
which property the
applicant allege was an instrumentality of an offence referred to in
Schedule 1 under POCA, is in fact a right
entrenched in the Bill of
Rights. In this regard, s 25(1) of the Constitution provides:
“
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of
property.
”
Furthermore,
this Court, like every other Court, is obliged in terms of s 39 of
the Constitution, to have regard not only to the
Constitution, but
also to promote the values, spirit and purport of the Bill of Rights
in interpreting the provisions of legislation
like POCA. It follows
that any attempt by the applicant to deprive the respondent of the
property acting in terms of the provisions
of POCA, must be
procedurally fair, justified, and strictly in accordance with the
Constitution.
[14] In
advancing his argument, counsel for the applicant, although admitting
to the correctness of the decision in
Levy
v National Director of Public Prosecutions (supra)
,
however, contended with less optimism and vigour and rather
strangely, that this Court was bound by a subsequent judgment
delivered
by Gassner AJ, in the Western Cape High Court. This is the
case of the
National
Director of Public Prosecutions and Van der Berg
(unreported case number 5597/06) in which judgment was delivered on
22 December 2008. In that case, the National Director of Public
Prosecutions applied for a forfeiture order of certain property and
movables in terms of s 48, and read with s 50 of POCA. The
basis of
the application included that the property and the movables
represented the proceeds of unlawful activities within the
meaning of
s 50(1)(b) of POCA. At the hearing, the respondents raised,
inter
alia
,
by way of a point
in
limine
,
the defence that the forfeiture application was invalid inasmuch as
it was not served on the respondents personally within the
90-day
period as prescribed by s 40 of POCA. The service of the forfeiture
application was served on the respondents’ attorneys,
being the
address they chose when entering an appearance to defend in terms of
s 39(3) of POCA. Gassner AJ found that there was
no merit in the
respondents’ point
in
limine
in that the service of the forfeiture application was effected at
their chosen service address within the ninety-day period specified
in s 40 of POCA. Gassner AJ went on to conclude that, “
Furthermore,
section 40 of POCA merely requires that an application for a
forfeiture order must be ‘pending’ within
ninety days
after the date on which notice of a preservation order is published
in the Government Gazette. That does not presuppose
the service of
the application but merely the issuing thereof. I accordingly find
that there has been proper compliance with the
provisions of section
48(1), as read with section 40 of POCA
”.
This finding was clearly in reference to
Noah
v Union National South British Insurance Co
1979
(1) SA 330
(T) at 332H in which Eloff J (as he then was) presided.
The submission that the decision in the
National
Director of Prosecutions v Van der Berg (supra
)
takes precedence over that in
Levy
v National Director of Public Prosecutions (supra)
,
and is binding on this Court, is undoubtedly incorrect and indeed
misplaced. This is so on the basis of the trite and basic doctrine
of
stare
decisis
.
See in this regard
Sebastian
and Others v Malebane Irrigation Board
1953 (2) SA 55
(T). Although the
National
Director of Public Prosecutions v Van der Berg
case (
supra
)
may have some persuasive authority, this Court is certainly not bound
thereby. On the contrary, this Court is bound by the
Levy
v National Director of Public Prosecutions
case unless I was satisfied that such a decision was clearly wrong.
See
Vorster
and Another v AA Mutual Insurance Association Ltd
1982 (1) SA 145
(T) at 155B-C. I am unable in these circumstances to
make such a finding. In any event, Goldstein J, in
Levy
v National Director of Public Prosecutions
has persuasively distinguished the interpretation of the relevant
provisions of the Statute applicable in the
Noah
v Union National South British Insurance Co Ltd
from the interpretation of the provisions of s 40(a) in the present
application. Furthermore, the facts in
National
Director of Public Prosecutions
v
Van der Berg
regarding the time when the application for a forfeiture order was
served on the respondents (within the ninety-day period prescribed
by
s 40 of POCA), are clearly distinguishable from the facts of the
instant application. Therefore the contentions advanced on
behalf of
the applicant in this regard were plainly without merit.
WHETHER APPLICANT COMPLIED SUBSTANTIALLY
[15] In what
appeared to be a
last-ditch
argument, counsel for the applicant strongly urged the Court to
exercise its inherent jurisdiction in order to condone
the
applicant’s non-compliance with the relevant provisions of POCA
as a strict interpretation of the time-limits may lead
to grave
injustice. In any event, so the argument proceeded, the applicant
has complied substantially with the applicable provisions
of POCA. In
this regard, reliance was placed on
Nkisimane
and Others v Santam Insurance Co Ltd
1978 (2) SA 430
(A), as well as other related cases which dealt with
the interpretation and distinction between peremptory and
discretionary statutory
requirements. In the
Nkisimane
and Others v Santam Insurance Co Ltd
case, the Court was concerned with the interpretation of the
provisions of s 25 of the Compulsory Motor Vehicle Insurance Act 56
of 1972. After dealing with the historical interpretations placed on
peremptory and directory statutory requirements, Trollip
JA at p
434A-D said:
“
These
must ultimately depend upon the proper construction of the statutory
provision in question, or, in other words, upon the intention
of the
lawgiver as ascertained from the language, scope, and purpose of the
enactment as a whole and the statutory requirement
in particular (see
the remarks of VAN DEN HEEVER J in
Lion
Match Co Ltd v Wessels
1946
OPD 376
at 380). Thus, on the one hand, a
statutory
requirement construed as peremptory usually still needs exact
compliance for it to have the stipulated legal consequence,
and any
purported compliance falling short of that is a nullity. (See the
authorities quoted in
Shalala
v Klerksdorp Town Council and Another
1969
(1) SA 582
(T)
at
587A-C.) On the other hand, compliance with a directory statutory
requirement, although desirable, may sometimes not be necessary
at
all, and non- or defective compliance therewith may not have
any legal
consequence (see, for example,
Sutter
v Scheepers
1932 AD
165).
In between those two kinds of statutory requirements it seems
that there may now be another kind which, while it is regarded as
peremptory, nevertheless only requires substantial compliance in
order to be legally effective (see
JEM
Motors Ltd v Boutle and Another
1961
(2) SA 320
(N)
at
327
in
fin - 328B and
Shalala's
case
supra
at
587F-588H, and cf
Maharaj
and Others v Rampersad
1964
(4) SA 638
(A)
at
646C-E). It is unnecessary to say anything about the correctness or
otherwise of this trend in such decisions. Then, of course,
there is
also the common kind of directory requirement which need only be
substantially complied with to have full legal effect
(see, for
example, Rondalia Versekeringskorporasie Bpk v Lemmer
1966
(2) SA 245 (A)
at
257H-258H).
”
[16] Based on the above
principles of interpretation of statutory requirements; the stringent
provisions of POCA; and the compulsory
deference to the Constitution,
it is clear that the relevant statutory requirements are indeed
peremptory. Strict compliance therewith
is called for in the
circumstances particularly bearing in mind the scope, and purpose of
POCA. For example, the provisions of
s 38(2) and 38(3) of POCA
dealing with preservation orders, employ the peremptory words
“
shall
”.
Similarly, the provisions of s 39 of POCA dealing with the duty of
the National Director of Public Prosecutions to give
notice of the
preservation order to all known persons who have an interest in the
property which is subject to the order; the publication
of the notice
in the Gazette; the manner of service of the notice; the manner of
the delivery of an appearance to defend; and what
particularity the
appearance to defend should contain, all use the word “
shall
”.
Furthermore, s 40 of POCA, which is pertinent to the present
application, provides that, “
a
preservation order shall expire 90 days after the date on which the
notice of the making of the order is published in the Gazette
…
”.
Indeed, s 48 of POCA, which deals with the application by the
National Director of Public Prosecutions for a forfeiture
order, also
use the word “
shall
”
in relation to the giving of notice of the application to every
person who has entered an appearance to defend, as well
as the
service of the notice, “
in
the manner in which a summons whereby civil proceedings in the High
Court are commenced is served
”.
In the “
Trilingual
Legal Dictionary
”,
3
rd
ed, the authors V G Hiemstra and H L Gonin, define the word “
shall
”
as “
(in wetlike
voorskrifte) moet; - be binding as bindend; no person –
niemand mag; - be entitled is geregtig …
”.
In the Concise Oxford Dictionary, 10
th
edition, the word “
shall
”
is defined as “
expressing
a strong assertion or intention expressing an instruction or
command
”. In
the Australian case of
Commissioner
for Housing for the Australian Capital Territory v Smith
(unreported,
Supreme Court, ACT, 14/3/1995), Higgins J considered the
interpretation of the words “
shall
”
and “
may
”.
Higgins J said, “
The
present contention refers to the obverse proposition, that is, that
‘shall’ might, at times, import a discretion
rather than
a duty to act. It is now to be assumed, it seems to me, that the
legislature will always have intended to counter
a discretion where
‘may’ has been used in an enactment and to have created a
duty to act when the term ‘shall’
has been used
”.
All of the above suggest convincingly that the provisions of POCA,
relevant to the present application are peremptory
in nature and make
no rule for discretionary intervention. Each case must, of course,
be decided on its own merits.
[17] In the present matter, it
is not only extremely difficult to find room to condone the
applicant’s non-compliance with
the applicable provisions of
POCA, but also to find that there has been substantial compliance, as
argued by counsel for the applicant.
The difficulties facing the
applicant were further compounded. In the first place, the applicant
has not placed any evidence
whatsoever before the court explaining
its non-compliance with the provisions of POCA. There was no
application for condonation
of the non-compliance save for the
submissions in argument. A party seeking the indulgence of a court
would ordinarily make substantive
application for such relief. For
good measures, the forfeiture application issued with the Registrar
of this Court on 13/3/2008,
and served on the respondent on
14/3/2008, was materially defective. It omitted the date on which
the application for the forfeiture
would be made to court. It bore
no date, and was unsigned. Subsequent attempts by the applicant to
rectify the errors proved
ineffective. Furthermore, the description
of the property forming the subject matter of the preservation Court
order and the subsequent
forfeiture order, was given differently in
various documents. For example, in the preservation order of
9/10/2007, the property
was described as “
Erf
468 Mayfair West, City of Johannesburg under Title Deed Number
T4061/2005
”. In
the defective notice of motion for the forfeiture order referred to
above, the title deed description of the order
was given as “
Title
Deed Number T4061/2004
”.
In the
ex parte
application in terms
of s 38(1) read with s 74(1)(a) of POCA for a preservation order,
dated 14/10/2007 the title deed number of
the property is described
as “
Title Deed
Number T4061/2004
”.
The Deeds Office property search report printed on 29/8/2006,
described the title deed number as “
T4061/2004
”.
One order granted by Malan J (as he then was) in the matter on
5/8/2001 in regard to the property gave the title deed
number as
“
T4061/2004
”.
This plethora of discrepancies, in such an important and crucial
matter, affecting the property rights of the respondent,
is such that
any discretion, inherent or otherwise, could hardly be exercised in
favour of the applicant in the circumstances.
It is a far cry from
the contention of the applicant that it has complied substantially in
this matter.
[18] The reliance by the
applicant for condonation on the yet to be reported case of the
National Director of
Public Prosecutions v Charlton Tuso Matjeke
(Case
No 17051/2004), a judgment of Motata J, in the then Transvaal
Provincial Division, does not advance the applicant’s
case in
any significant manner. The facts in that case were clearly
distinguishable from the facts in the present matter. In that
case,
the preservation order in favour of the applicant was published in
the Government Gazette on 16 October 2004 in terms of
the Court
order. The subsequent forfeiture application was filed at Court on
5/11/2004. This was on the 91
st
day after the publication in the Government Gazette. The applicant
applied for condonation of the one day non-compliance with the
statutory requirements set out in ss 40 and 48 of POCA. In granting
the condonation application, Motata J at para [16] said:
“
I
am of the view that condonation should be granted since the applicant
deposed of its supporting affidavits on the 4
th
of November 2004, which falls on the 90
th
day after publication in the Government Gazette. The filing of the
application was one day late and the applicant in no way attempted
to disregard the existence of the time restraints and it further did
not prejudice any interested party. Furthermore the late filing
did
not subvert the intention and purpose of the act and provisions set
out in POCA.
”
In the present application, and
by way of contrasts, the applicant has not filed a formal condonation
application. Secondly, and
as stated earlier, the forfeiture
application served on respondent on 14/3/2008, was materially
defective. It was also not in
conformity with the format prescribed
by the Uniform Rules of Court. In fact, the respondent argued that
the entire application
was a nullity. I was inclined to agree.
Furthermore, prior to the hearing of the matter, when one of the
above discrepancies was
brought to the attention of the applicant,
the applicant did absolutely nothing by way of amending its papers.
In these circumstances,
it could hardly be contended, as found in the
Motata J judgment (
supra
),
that “
the
applicant in no way attempted to disregard the existence of the time
restraints
” and
“
did not
prejudice any interested party
”.
The judgment in the Motata J matter clearly concerned the forfeiture
of what appeared to be relatively old motor vehicles
and cash of
R450,00 which the applicant alleged were an instrumentality of an
offence as listed in Schedule 1 of POCA, namely theft.
The present
application concerns immovable property, a residence, which is not of
an insubstantial monetary value. The distinction
between the two
cases cannot be ignored. In arriving at its decision, this Court was
largely influenced, not only by the peremptory
provisions of POCA,
but also the relevant binding provisions of the Constitution
described earlier. It is indeed trite that a court
will use its
inherent powers to condone non-compliance only in rare cases.
THE SERVICE OF THE FORFEITURE APPLICATION
[19] In the light of the
conclusion I reach in this application, it was unnecessary for me to
consider in any great detail the
further submission of the respondent
that the service of the forfeiture application on her attorneys of
record was not in accordance
with the statutory requirements set out
in ss 39(2), 39(3) and 48(3) of POCA. It was equally unnecessary for
me to decide the issue
conclusively. However, a close scrutiny of
the above provisions suggests that the service of the forfeiture
application on the
respondent’s attorneys of record may have
been perfectly proper. This is so because s 39(3) of POCA, quoted
earlier, provides
that any person who has an interest in the property
which is the subject to the preservation order may enter an
appearance giving
notice of his/her intention to oppose the making of
a forfeiture order. Furthermore, s 39(5) of POCA, also quoted
earlier, specifically
and in peremptory terms, provides that an
appearance to defend in terms of s 39(3) “
shall
contain full particulars of the chosen address for delivery of
documents concerning further proceedings under this Chapter
…
”
(my underlining). More relevantly, s 48(2) of POCA, which deals with
a forfeiture application, enjoins the applicant in
the present matter
to give 14 days notice of an application for a forfeiture order to
every person who entered an appearance in
terms of s 39(3) above. As
noted above, the provisions of both ss 39(2) (dealing with the notice
in respect of a preservation
order), and s 48(3) (dealing with the
notice for a forfeiture application), provide that such notice shall
be served on the respondents,
“
in
the manner in which a summons whereby civil proceedings in the High
Court are commenced
,
is served
”.
From the above, the ordinary grammatically meaning and interpretation
of the provisions of ss 39 and 48 of POCA, suggest
strongly and
persuasively that a notice of intention to oppose ought equally to
play the role of an address at which processes
should be served in
proceedings in terms of POCA. Indeed in
National
Director of Public Prosecutions v Seleoane and Others
[2003] 3 All SA 102
(NC) the Court had the occasion to consider a
point
in limine
raised by the respondents on the basis of the provisions of s 42(2)
of POCA, that the notice for a forfeiture order application
should
have been served on them by the Sheriff, in a manner provided for in
the Rules, and not merely filed at the address of the
attorneys. At
para [21] the Court said: “
When
regard is had to the requirements
[in
section 39(5)]
that the
entrance of appearance has to contain an address for delivery of
documents, it is not clear what the purpose of section
48(3) of the
Act was intended to be. In any event, it is at least clear that the
legislature intended that people like the first
and second
respondents should receive proper notice of applications for
forfeiture and that this has clearly happened in this case.
Insofar
as it may be necessary I therefore condone the fact that the notice
of the application for forfeiture was not served on
the first and the
second respondents (compare Consani Engineering (Pty) Ltd v Anton
Steinecker Maschinen fabrik GmbH
1991 (1) SA 823
(T))”. In the present application the service
of the forfeiture application on the respondent’s attorneys of
record
indeed had the effect that the respondent duly entered an
appearance to oppose the application. This concludes my comments on
the issue of the service of the notice of the forfeiture application
on the respondent.
CONCLUSION
[20] I also conclude on the
point
in limine
raised by the respondent that the relevant provisions of ss 39, 40
and 48 of POCA are invasive, stringent and require strict compliance
therewith; that the applicant has not made out a case for this Court
to use its inherent jurisdiction to condone the applicant’s
non-compliance with such provisions; that the applicant has in fact
not complied substantially with the relevant provisions; that
the
service of the notice of the forfeiture application on the
respondent’s attorneys of record may be regarded as proper
service; and that the present application qualifies to be dismissed
with costs, for all the aforegoing reasons. There is clearly
nothing
preventing the applicant from commencing proceedings
de
novo
against the
respondent and complying properly with the applicable provisions of
POCA as set out in this judgment, especially in
what appears to be a
prima facie
case against the respondent on the merits.
[21] I must, before making an
order, express my gratitude to both counsel, Mr Zehir Omar for the
respondent, and Adv Feroze Latif
for the applicant, for the manner in
which they argued their respective cases. Their additional heads of
argument filed later
were equally extremely invaluable.
ORDER
[22] In the result I make the following order:
1. The point
in
limine
raised by the
respondent that the preservation order had expired when the notice of
the forfeiture application was served, is upheld.
2. The application for the forfeiture order is dismissed.
3. The applicant shall pay the
costs of the application.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT ADV F LATIF
INSTRUCTED BY DPP, JOHANNESBURG
COUNSEL FOR THE RESPONDENT ADV Z OMAR
INSTRUCTED BY ATTORNEYS ZEHIR OMAR
SPRINGS
DATE OF HEARING 4 JUNE 2010
DATE OF JUDGMENT 28 JULY 2010