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[2021] ZASCA 142
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National Director of Public Prosecutions (Ex Parte Application) (669/2020) [2021] ZASCA 142; 2022 (1) SACR 1 (SCA) (7 October 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No:
669/2020
In the matter of:
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
(EX PARTE
APPLICATION)
APPELLANT
Neutral citation:
The National Director of Public
Prosecutions (Ex Parte Application)
(Case
no 669/2020)
[2021] ZASCA 142
(7 October 2021)
Coram:
SALDULKER, PLASKET and MBATHA JJA and
MOLEFE and UNTERHALTER AJJA
Heard:
27 August 2021
Delivered:
This judgment was handed down
electronically by circulation to the parties’ representatives
by email, publication on the Supreme
Court of Appeal website and
release to SAFLII. The date and time for hand-down is deemed to be
10h00 on 7 October 2021.
Summary
:
Prevention of Organised Crime Act 121 of 1998 (POCA) – ss 26
and 38 – Uniform Rules of Court
– preservation of
property order – urgency – whether the appellant must
prove urgency when applying for a preservation
order.
ORDER
On
appeal from:
Mpumalanga Division of the
High Court, Mbombela (Roelofse AJ sitting as court of first
instance):
1
The appeal is upheld.
2
The order of the high court is set aside and substituted as follows:
‘
(a)
The appellant may re-enroll the application in terms of s 38(1) of
the Prevention of Organised Crime Act 121 of 1998 (POCA),
in its
original form as an
ex parte
application, with the Registrar of the high court.
(b) The
application must be set down in accordance with rule 6(4)
(a)
of the Uniform Rules of Court.
(c)
A judge of the high court, as soon as may be reasonably and
practically possible after such re-enrolment, shall consider and
deal
with the application as an
ex parte
application, without need for service, and decide the application on
its merits in accordance with the requirements for the making
of the
order sought as laid down in s 38(2) of POCA.’
JUDGMENT
Molefe AJA
(Saldulker, Plasket and Mbatha JJA and Unterhalter AJA concurring):
[1]
This is an appeal against an order made by Roelofse AJ in the
Mpumalanga Division
of the High Court, Mbombela (the high
court), striking from the roll an
ex-parte
application in
terms of s 38 of the Prevention of Organised Crime Act 121 of 1998
(POCA) for a preservation order. The core issue
in this appeal is
whether the appellant, the National Director of Public Prosecutions
(the NDPP), is required, when bringing an
application in terms of s
38 of POCA, to deal with urgency in the founding affidavit, and to
make out a case for urgency before
the merits of the matter may be
determined.
[2]
The facts are briefly that on 16 August 2019, three men were found in
a timber plantation
in Mpumalanga in possession of the carcasses of
11 grey duiker, four bush buck, one mountain reed buck and one serval
cat, which
had recently been poached. The carcasses and the rifle
with which the animals were hunted were found in a Toyota Hilux
vehicle
(the vehicle) which belonged to one of the men.
[3]
The three men were arrested and charged with a number of offences in
the Graskop Magistrates’
Court (the magistrates’ court),
where they were subsequently admitted to bail. The vehicle and the
rifle were seized by the
South African Police Service (SAPS) on 16
August 2019. The seizure was effected in terms of s 20 of the
Criminal Procedure
Act 51 of 1997 (the CPA).
[1]
[4]
The case was, without the knowledge of the prosecution, struck from
the criminal roll
on 30 January 2020, and no reasons were provided on
the record as to why this occurred. The magistrate,
mero
motu
, without an application brought on
notice to the prosecution, and in violation of the CPA,
[2]
ordered the police to return the vehicle to one of
the accused, the registered owner of the vehicle.
[5]
This turn of events prompted the NDPP to apply to the high court for
a preservation
order in terms of s 38 of POCA. The matter served
before Roelofse AJ who raised a concern about the delay in the
bringing of the
s 38 application. He struck the matter from the roll
on the basis that urgency had not been established, as required by a
practice
directive of the court, although he accepted that a proper
case had been made out for the granting of a preservation order on
the
merits. He granted the NDPP leave to appeal to this Court.
[6]
The NDPP does not accept that the requirements for urgency were not
satisfied. The
core issue which has to be addressed in this appeal is
whether the NDPP is required, when bringing an application in terms
of s
38 of POCA, to make out a case of urgency in the founding
affidavit before the merits can be determined. This requires a
consideration
of the legislation, the practice directive, and case
law, particularly the judgment of this Court in
Ex
parte National Director of Public Prosecutions
[3]
(
Ramadhani
).
[7]
The starting point in this appeal is s 38 of the POCA, which sets out
the procedure
that may be used to apply for a preservation order. It
provides:
‘
(1)
The National Director may by way of
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—
(a)
is an
instrumentality of an offence referred to in Schedule 1;
(b)
is the
proceeds of unlawful activities; or
(c)
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.
.
. . .’
[8]
Rule 6(4)
(a)
of the Uniform Rules of Court governs the
procedure for setting down
ex parte
applications. It provides
that every application brought
ex parte
shall be filed with
the Registrar and set down before noon on the court day but one
preceding the day on which it is to be heard.
The court may dispense
with the forms and service provided for in the rules, and may dispose
of such matter at such time and place
and in such manner, and in
accordance with such procedure (which shall as far as practicable be
in terms of the rules) as it deems
fit.
[9]
The Constitutional Court held in
National
Director of Public Prosecutions and Another v Mohamed NO and
Others
,
[4]
that s 38(1) ‘. . . means no
more than that, if the National Director is desirous of obtaining an
order under s 38, she or
he may use an
ex parte
application. . .’. In other words, the procedure prescribed by
the statute that may be used in an application for a preservation
order is an
ex parte
application — which dispenses with notice to the respondent and
service of the papers.
[10]
In
Ramadhani,
[5]
this Court decided an appeal against an
order of the Mpumalanga Division of the High Court striking from the
roll an
ex parte
application for a preservation order. This Court held:
10.1
that a then existing provision of a practice directive of the
Mpumalanga Division of the High Court governing
ex parte POCA
applications was inconsistent with Uniform Rule 6(4)(
a
) and
with s 38 of POCA;
10.2
that the practice directive could not be applied to restrict,
undermine or negate these provisions;
10.3
that ex parte applications in terms of s 38 are by the by their
nature urgent; and
10.4
that the approach to an ex parte application brought in terms of s
38(1) should be that a judge in chambers
ought to consider the
application and make the appropriate order as soon as it is
reasonably and practically possible after such
an application has
been filed with the Registrar.
[
11]
Pursuant to the
Ramadhani
judgment, the relevant practice directive was amended to bring the
directive into conformity with the judgment. That practice directive
was followed by one issued on 9 January 2020. The two practice
directives embody similar provisions. Paragraph 11.3 of the January
2020 practice directive provides that applications in terms of
POCA
‘
shall be
initiated by enrolment thereof on the unopposed roll or urgent roll
provided urgency is justified’.
[6]
In terms of paragraph 11.5 of the
January 2020 practice directive, ‘[i]n granting an
application
brought
ex parte
. . .
under
[section] 38 of POCA, the court
shall
issue a
rule
nisi
by
completion of Form C
to this
Practice Directive
seen in the context
of the case of
NDPP
V Mohamed and Others
2003 (4) SA 1
(CC) at paras [32] and [51]. . .’.
[7]
[12]
It is important to highlight that paragraph 8 of the practice
directive deals with unopposed
applications. According to paragraph
8.1, unopposed applications are heard on Mondays and Fridays of the
first, fourth and seventh
weeks of every term, and the number of
matters to be heard each day is limited to 100 matters divided
between two judges. Paragraphs
8.4 and 8.5 deal with the setting down
of unopposed matters. These paragraphs state:
‘
8.4
The applicant shall ensure that papers are ready, i.e. indexed,
paginated and bound together and
filed with the Registrar’s
clerk by
not
later than 12h00 on a Monday and Friday preceding the hearing on the
following Monday and Friday of the motion week
.
8.5
The Registrar’s clerk shall prepare the files and hand them
over to the respective
Judges by not later than 16h00 on a Monday and
Friday
preceding the week of hearing as indicated in 8.4 above
.’
[13]
Urgent applications may, according
to paragraph 10.1 of the practice directive, ‘. . . be heard at
10h00 on every Tuesday
of each week’, and according to
paragraph 10.3, it is only in exceptional circumstances that urgent
application will be heard
at a different time or a different day.
This paragraph regulates the setting down of ‘normal’
urgent application. They
‘must be filed with the Registrar by
no later than 12h00 on Thursday of the preceding week to enable the
Registrar to prepare
and submit in time the file(s) to the judge on
the urgent roll’. Paragraph 10.7 of the practice directive is
one of the number
of paragraphs dealing with
ex
parte
applications. It provides that
‘[a]ll
ex parte
applications must be enrolled on the unopposed motion roll and unless
urgency is averred and satisfied in the papers, it may be
enrolled on
the urgent roll’. (It appears that the word ‘unless’
is intended to be ‘if’.)
[14]
This Court in
Ramadhani
explained how a practice directive
stands in relation to a statute, the Uniform Rules and the common
law. Seriti JA held in this
respect, that:
‘
The
practice directive is subordinate to any relevant statute, the common
law and the Uniform Rules and it cannot be applied
to restrict
or undermine any piece of legislation, the Uniform Rules of Court or
the common law. Practice directives deal essentially
with the daily
functioning of the courts and, their purpose is to supplement the
rules of court. In this case, the court a quo
afforded the practice
directive statutory force overriding both s 38 of POCA and rule
6(4)
(a)
of the Uniform Rules which is impermissible. The practice directive
should not negate the provisions of s 38 and rule 6(4)
(a)
of the Uniform Rules. In my view the portion of the practice
directive dealing with ex parte applications is not applicable to
ex
parte applications brought in terms of s 38.’
[8]
[15]
The
practice directives require an applicant in an urgent application to
set out explicitly the circumstances which render the matter
urgent.
They further emphasise that while an application may be urgent, it
may not be sufficiently urgent to be heard at the time
selected by
the applicant. Furthermore, the practice directive provides that
should the directives regarding urgent applications
not be adhered
to, the application will be struck off the roll. On the other hand,
the NDPP contends that s 38 applications are
by their nature
inherently urgent, and there is no need to establish urgency in such
matters.
[16]
It is important to note that
the
Ramadhani
judgment was not the first judgment to pronounce on the nature of
applications in terms of s 38 of POCA. The
Ramadhani
judgment quoted with approval the dictum in the
National
Director Public Prosecutions v Alexander and Others,
[9]
where
the court stated that it was to be presumed that the Legislature
intended POCA proceedings to be ‘inherently sufficiently
urgent’.
[17]
Regrettably,
the aforementioned approach was overlooked by Roelofse AJ. The high
court practice directives are incompatible with
the nature of POCA
applications and rule 6(4)(
a
).
The misclassification of the s 38 applications as ordinary urgent
applications was irregular.
[18]
The set down of urgent applications and unopposed applications in
terms of paragraph 11.3 read
with paragraphs 8.4 and 10.2 of the
practice directives are clearly in conflict with the Uniform Rules.
They set strict timelines
and requirements as to the hearing of a s
38 POCA application, thereby detracting from
Ramadhani,
where
this Court held that such applications must be heard as soon as
reasonably and practicably possible , as they are inherently
urgent.
It is untenable to give effect to s 38 of POCA by recourse to
practice directives that may delay the hearing of an application
for
a forfeiture order.
[19]
Practice directives provide essential guidance for the daily
functioning of the courts. Practice
directives may not derogate from
legislation, the common law or rules of court that have obligatory
force.
A
statute that permits the use of a procedure so as to make its
enforcement effective must be adhered to. The competence of the
courts to give practice directives is an important means by which the
work of the courts may be carried out. However, practice
directives
must facilitate what a statute requires. Practice directives should
not place obstacles in the way of achieving the
objects of a statute.
[20]
The high court, therefore, erred in the following respects. Firstly,
in not finding that by its
very nature, an application for a
preservation order is inherently urgent, and that the appellant was
entitled, as a matter of
law, to approach the court
ex parte
,
and by way of notice provided for in rule 6(4)
(a),
without
having specifically to make out a case for urgency. Secondly, the
high court erred in treating the practice directive as
if it has
statutory force that overrides the provisions of the POCA and the
Uniform Rules. As the court below misdirected itself
in these
respects, when it struck the matter from the roll, the appeal must
succeed.
[21]
In the result, I make the following order.
1
The appeal is upheld.
2
The order of the high court is set aside and substituted as follows:
‘
(a)
The appellant may re-enroll the application in terms of s 38(1) of
the Prevention of Organised Crime Act 121 of 1998 (POCA),
in its
original form as an
ex parte
application, with the Registrar of the high court.
(b) The
application must be set down in accordance with rule 6(4)
(a)
of the Uniform Rules of Court.
(c) A judge
of the high court, as soon as may be reasonably and practically
possible after such re-enrolment, shall consider and
deal with the
application as an
ex parte
application, without need for
service, and decide the application on its merits in accordance with
the requirements for the making
of the order sought as laid down in
s 38(2) of POCA.’
D S MOLEFE
Acting Judge of
Appeal
APPEARANCES:
For
Appellant:
A J Freund SC (appearing with S J van der Walt)
Instructed
by:
The State Attorney, Mbombela
The State Attorney, Bloemfontein.
[1]
This provision authorises the State, in accordance with Chapter 2 of
the CPA, to seize an article which,
inter alia,
‘is
concerned in or is on reasonable grounds believed to be concerned in
the commission or suspected commission of an offence’
or
‘which may afford evidence of the commission or suspected
commission of an offence’.
[2]
S v Vorster and Another
2006 (1) SACR 611 (T).
[3]
National Director of Public Prosecutions
[2018] ZASCA 86
;
2018 (2) SACR 176
(SCA) The case concerned a
preservation order in relation to a vehicle owned by one Mr
Ramadhani.
[4]
National Director of Public Prosecutions and
Another v Mahomed N O and Others
[2003] ZACC 4
;
2003
(1) SACR 561
;
2003 (5) BCLR 476
;
2003 (4)
SA 1
(CC) para 33.
[5]
Ramadhani
paras
29-33.
[6]
Paragraph
11.2 of the July 2019 Practice
Directive contains a similar provision.
[7]
Paragraph
11.4 of the July 2019 Practice
Directives contains a similar provision.
[8]
Ramadhani
para
31.
[9]
National
Director Public Prosecutions v Alexander and Others
2001 (2) SACR 1
(T) at 13A-D.