SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT

CASE NO: 540 / 2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 22 April 2025
SIGNATURE
In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC APPLICANT
PROSECUTIONS

And

LIVIA TRANSPORT (PTY) LTD RESPONDENT

And


CASE NO: 5817 / 202 3

LIVIA TRANSPORT (PTY) LTD APPLICANT

And

MINISTER OF POLICE RESPONDENT

______________________________________________________ ___________


J U D G M E N T
_____________________________________________________ ____________

RATSHIBVUMO DJP:

Delivered : This judgment was handed down electronically by circulation to the parties'
representatives by email. The date and time for hand -down is deemed to be on 22 April
2025 at 09H00.

[1] Introduction
The two applications before the court were heard together because they involve
the same property to wit, a Scania Truck with registration number C[...] together
with the two trailers with registration numbers J[...] and J[...] (the propert y). The
property is currently being held by the South African Police Services (the SAPS) at
the SAP 13 storage, under Nelspruit CAS No. 113/10/2023 . The propert y belongs
to Livia Transport , in whose name it is registered .

[2] Under case No. 5817/2023, Livia Transport launched an application for the return
of the propert y (rei vindicatio ) on 14 December 2023. The application is opposed
by the Minister of Police, who is the respondent. Under case No. 540/2024, an ex
parte application was launched by the National Director of Public Prosecutions (the
NDPP) on 08 February 2024, seek ing an order for preservation of the property in
terms of section 38(1) read with section 74(1)(a) of the Prevention of Organised
Crime Act, No. 121 of 1998 (POCA). On the same date, a rule nisi order was
granted in favour on the NDPP , calling on Livia Transport , the Respondent therein,
to show cause as to why the order should not be made final.

[3] Subsequent thereto , the court made a rule nisi final in the absence of the
Respondent . This was however rescinded on 10 May 2024 on application by the
Respondent . The resci ssion of judgment was granted by agreement between the
parties . The rule nisi was as such extended further until the hearing of this
application . The application before Court is therefore for an order making a rule nisi
final, whereas the Respondent is oppose d to it. An order discharging a rule nisi
was as such sought by the Respondent.


[4] Background.
Facts leading to these applications are largely common cause . On 06 October
2023 at around 01h00, members of the SAPS were called to a scene, where the y
found Fidelity Security officers having stopped a truck pulling the trailers described
above, along the N4 highway between the Alkmaar and Sabie off -ramps. When it
was stopped, it was being driven by Mr. Malungelo Mhlengethwa (Mhlengethwa) .
Fidelity Security officers searched the said truck and found that it was loaded with
the railway tracks and saddles which were covered by blue tarpaulin. When
members of the SAPS arrived, they found the truck and trailers still loaded with this
consignment. Mr. Marco Basson (Basson) from the Fidelity Security indicated to
the police that he believed that the consignment was stolen and that it belonged to
Transnet . He also indicated that they could be part of the railway tracks stolen from
Sabie , which case is still under investigations under Graskop CAS No. 02/02/2023.

[5] When members of the SAPS confronted Mhlengethwa , he displayed softcopies of
documents on his cell phone , giving the impression that he had the authorisation
from the Department of Public Works and Komatiland Forest to transport that
consignment . The documents purpo rted to authorise a certain Mr. Nkosi (Nkosi) to
remove the railway t racks from Komatiland Sabie. Basson who seemed to have
been close to the Graskop investigations referred to above, informed the police that
the documents Mhlengethwa was displaying on his cell phone, were found to be
fraudulent in that case . Mhlengethwa also informed the police that he was
delivering the railway tracks to Gauteng where they were to be sold. He was then
arrested for theft and/or possession of suspected stolen property. The truck and
the trailers were impounded as instruments used in the commission of a crime.

[6] Further investigations by the police revealed that Mr. Gilbert Masuku of the
Department of Public Works, whose names and details appear on the letter
presented by Mhlengethwa to the police, distance d himself from its contents. While
all other details such as the contact details were his, he denie d that the said letter
was written by him . He also disputed that the signature appended thereto , was his.
He also denie d having ever met or know n Nkosi whom the letter purport ed to give
authori ty to remove the railway tracks.


[7] In another statement , Mr. Warren Williams who is employed by
SAFCOL/Komatiland Forests , claim ed that the letter purportedly authorising Nkosi
to remove the railway tracks from Bergvliet Plantation was forged. He further
averred that he was the only person authorised to grant permits for that area and
that he could not have issue d a permit for the removal of the railway tracks as they
do not belong to SAFCOL/Komatiland , but to Transnet . He did not know Mr. Sabelo
Dlamini who was reflected as the author of that letter. He also did not know Nkosi
whom the letter purport ed to give th e authorisation to remove the railway tracks.

[8] Further s tatements were obtained from Mr. Agatta Ngomane and Mr. Moses
Mahlangu (Mahlangu) who work for Transnet. From their statements, they affirm
that Transnet does not sell its railway tracks to private persons or companies even
if they could be obsolete and decommissioned. The y further state that the railway
tracks that were confiscated from Mhlengethwa were removed from the live railway
lines that were still operational. The costs associated with the removal of the
railway tracks in question was estimated by Mahlangu to be just over R1.9 million.

[9] Charges against Mhlengethwa were withdrawn by the public prosecutor on 29
January 2024, while investigations by the police continue. Reasons for the
withdrawal were not furnished to this Court . It is also unknown if there are plans
afoot to reinstate the charges against him. It is however common cause that Mr.
Johannes Porfirio Parreira (Parreira) , the Manager at Livia Transport availed to the
Investigating Officer, the printed copies of documents that Mhlengethwa had shown
to the police when he was arrested . Parreira also told the police that he was the
one who sent Mhlengethwa to collect and deliver the consignment that he was
transporting when he was arrested . From the information downloaded from
Parreira’s phone, the police realised that it was not the first time that Livia
Transport embarked on transporting the railway tracks relying on the same
documents of authorisation as it did this time . It had done so twice before and this
was the third time in the same year, 2023 .

[10] Court’s approach to two applications .

For the two applications to be heard together does not imply that two separate
judgments should be handed down. One judgment would be handed down with
orders in respect of the two applications. For purposes of this judgment , I deem it
prudent to focus on the preservation application launched by the NDPP, as the
primary application, and only consider the rei vindicatio application as a secondary
matter . Whatever the outcome in the preservation application, it would be able to
cater for the outcome in both applications. If the preservation order is granted, that
is if rule nisi is confirmed, it would mean, the rei vindicatio application gets
dismissed as the two cannot be granted together. If the preservation order is
dismissed, it follows then that the rei vindicatio application should be granted.
Moreover, the applicants in the two applications are also the litigants in the
preservation application, whereas the NDPP is not a party to the rei vindicatio
application.

[11] The approach above was embraced by legal representatives for the NDPP and for
the Minister of Police. Counsel for Livia Transport had a different view. He
submitted that the court should hear the rei vindicatio application separately first,
and only thereafter proceed to consider the preservation application . In my view,
this approach defeats the purpose for which the two applications were heard
together.

[12] The approach suggested by counsel for Livia Transport also has the potential for
absurd outcome where the court may hand down a judgment in one application,
only to recant it before the ink dries , in another. This can happen if the Court grants
the rei vindicatio application, only to allow the preservation of the same property in
the second application or refusing the rei vindicatio , only to have the preservation
application also dismissed, leaving the property in unexplained state.

[13] In the rei vindicatio application, the Minister of Police as the Respondent therein,
made it clear that one of the reasons they were oppos ed to the application was the
order in rule nisi that was issued in the preservation application , that authorises
them to keep the property . At the time the Minister of Police filed the answering
affidavit, a preservation order had already been granted . Attending to the rei
vindicatio application first would thus place the cart before the horse in that th e

Court would not be able to give an answer to the defence raised in the opposition,
which is the contravention of the court order granted as rule nisi . I will as such
proceed to consider primarily, the preservation application and have the orders in
both applications flowing from that consideration.

[14] The law.
Section 38 of POCA provides,
“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 -
(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.
(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.” [Emphasis added].

[15] In the replying affidavit filed by the NDPP, in the preservation application, it was
submitted that the Practice Directives of this Division as they stood then, were
unlawful when it comes to the provisions related to POCA matters . This Court was
therefore requested to make a declaration to the effect that they were not in unison
with the statute (POCA). When counsel for the NDPP was requested to
substantiate th is argument, he indicated that th e submission was in relation to the
Practice Directives that have since been amended and that the Practice Directives
as they stand currently, they do not offend the statutory provisions. The argument

was as a result abandoned and this Court shall make no pronouncement in that
regard.

[16] From the common cause facts highlighted above, it is unquestionable that the
following Schedule 1 offences as envisioned by section 38 of POCA were
committed leading to the confiscation of the property by the police . The listing of
the offences below should not be interpreted as suggesting that any party or
individuals are guilty of any or all of them as the test for guilt in criminal matters
requires more. For current purposes, I only enlist the offences apparently
committed without identifying the offenders. The offences committed would inter
alia entail,1

a) Theft of the railway tracks and saddles . These items belonged to Transnet
which , from the evidence gathered, did not give consent for them to be
taken for any reason whatsoever .
b) Offence under section 36 or 37 of the General Law Amendment Act, 1955
(Act 62 of 1955 ). In S v Du Preez,2 it was held that when it comes to
reasonable suspicion that the property is stolen, the accused ’s response to
request for explanation of possession of property should not be taken into
account in assessing reasonableness or otherwise of suspicion. Only facts
or factors preceding the formation of suspicion are to be taken into account
in assessing its reasonableness. Equally, the reasonableness of the
explanation that is given cannot be assessed in isolation but should be
followed up . When officers fail to follow up an explanation that ex facie
appears to be reasonable, that can result in the acquittal of the accused on
charges against him .3 But when a follow -up is done that unmask s the
documents as fake, that excludes the reasonableness otherwise proffered.
c) Fraud . This was committed when there was misrepresentation about permits
allegedly issued by the Department of Public Works and/or
SAFCOL/Komatiland, to have the railway tracks removed, whereas in truth,
no such authorisation was given by those institutions .

1 See items 17 -20, 33 & 33B of Schedule 1 of POCA.
2 1998 (2) SACR 133 (C).
3 See for example S v Steward 2017 (1) SACR 156 (NCK) .

d) Forgery or uttering. Statements given by the persons alleged to have issued
the fake authorisation letters make it beyond any doubt that the documents
in question were forged. I should however caution and stipulate that the
crime of uttering is committed when the forged documents are presented by
a person who kn ew that the documents were forged.
e) Contravening section 25(4), read with section 32 and Schedule 3 of the
Second -Hand Goods Act, No. 6 of 2009. Section 25(4)(a) provides that “[n]o
person may have in his or her possession any apparatus which can be used
for the recycling of any controlled metal or any article or substance
containing any controlled metal, unless such person is registered as a
recycler; or in the case of precious metals, such a person is authorised to
possess and recycle precious metals under the Precious Metals Act, 2005
(Act 37 of 2005 ), or any other applicable legislation.”
f) An offence referred to in section 3 of the Criminal Matters Amendment Act,
No. 18 of 2015. This section provides that “any person who unlawfully and
intentionally tampers with, damages or destroys essential infrastructure; or
colludes with or assists another person in the commission, performance or
carrying out of [these]; and who knows or ought reasonably to have known
or suspected that it is essential infrastructure , is guilty of an offence and
liable on conviction to a period of imprisonment not exceeding 30 years or,
in the case of a corporate body as contemplated in section 332 (2) of the
Criminal Procedure Act, 1977, a fine not exceeding R100 million. ”
[Emphasis added].

[17] The answering affidavit file d by Livia Transport in the preservation application does
not question the commission of the offences listed above. It also does not dispute
that its truck and trailers were used in the transportation of the stolen goods, hence
it makes no issues in the confiscation of the railways tracks whose ownership was
not question ed either . While it refuse d to confirm that crimes were committed, it
made it categorically clear that it bears no knowledge of any crimes that were
committed . Those who bear the knowledge presented evidence as employees of
the Transnet , the Department of Public Works and/or SAFCOL/Komatiland . They
all confirm that the offences listed above were indeed committed. The attempts by
Livia Transport in distanc ing itself and its driver from being the persons who

committed the se offences that were glaringly committed with great precision that
required the involvement of several other persons and institutions does not mean
the crimes were not committed .

[18] Whereas section 38(1) of POCA requires reasonable grounds to believe that the
property concerned must have been an instrumentality of an offence referred to in
Schedule 1 , section 1 defines “instrumentality of an offence” as “any property which
is concerned in the commission or suspected commission of an offence at any time
before or after the commencement of this Act, whether committed within the
Republic or elsewhere.” This puts the test required for preservation applications
very low compared to the test required in forfeiture applications.4

[19] Wallis J (as he then was) observed in National Director of Public Prosecutions v
Abrina5that,
“As it is not a requirement of section 38(2) that the person in possession of
the property sought to be preserved should have been the perpetrator of the
unlawful activity by means of which the property was received by them, it is
of no assistance to the Sewpersads to protest their innocence of any
involvement in the fraud . That is irrelevant. In consequence of the fraud the
PGAC authorised subsidies in terms of the Land Reform (Labour Tenants)
Act. The money released by way of subsidy was used to acquire the farms
in KwaZulu -Natal and the implements and livestock on those farms. Abrina
6822 was thereby relieved of any obligation to pay the purchase price of the
farms, the livestock and the implements. It received these directly as the
proceeds of unlawful activities. As I have said , it is immaterial whether
Abrina 6822 was aware of those unlawful activities or a party to them . It is in
possession of property in respect of which there are reasonable grounds to
believe that the property is the proceeds of unlawful activities. Accordingly,
taking the provisions of sections 38(1) and (2) at face value the preservation
of property order was properly made.” [Emphasis added].


4 See Mazibuko and Another v National Director of Public Prosecutions 2009 (6 ) SA 479 (SCA ).
5 2011 (1) SACR 419 (KZP) at para 18.

[20] It is as such irrelevant for the court to consider the innocence or otherwise of Livia
Transport, Perreira and/or Mhlengethwa for purposes of the preservation
application as it plays no role.

[21] Another aspect deserving of the court’s attention is the argument presented by
Livia Transport to the effect that, in bringing the ex parte application, the NDPP
failed to disclose material information to the court, to wit, that there was a pending
rei vindicatio application. For this reason, so it was argued, the rule nisi should be
discharged. While I agree that applicants who bring applications on ex parte basis,
that is, without a notice to their opponents, have a duty to make a full disclosure,
including that which is unfavourable to them, I am unable to conclude that the
NDPP failed to disclose information that was at its disposal . Under oath, the
deponent to the NDPP’s replying affidavit says he disclosed everything at his
disposal . He steered away from expressing a view on whether the State Attorney
officer was aware of the pending rei vindicatio application saying he did not know .
He however expressed some doubts given the load of work they do and that
services to them were outsourced , meaning, the NDPP’s officers are preparing
their own papers , in care of State Attorneys .

[22] It is common cause that the NDPP is not a party to the proceedings in the rei
vindicatio application, as only the Minister of Police was cited. The only common
denominator between the se two parties is that both, being the State institutions,
were making use of the State Attorneys, with the NDPP outsourcing their services
from within its office, hence the correspondence would go to the State Attorneys, in
care of an officer within the NDPP office. The fact that the NDPP, as the applicant
was using the same office or officer within the State Attorney does not mean that
they should also know what the State Attorney or individual officer therein knows ,
that is if he kn ew about other instructions previously given by other State entities to
the State Attorney . The argument fails to establish that the NDPP as a litigant, was
aware of the pending application and chose not to disclose it.

[23] Without trivialising the duty to disclose all information available at one’s disposal
when bringing an application ex parte , I do not see how the disclosure of the
information about the pending rei vindicatio application, by the NDPP, if it was at its

disposal, could have influenced the outcome of the preservation application. This I
say given the legal right that the NDPP enjoyed in bringing the preservation
applications ex parte. The test for granting the order, as highlighted above has
nothing to do with any possible pending application over the property involved. The
test is whether there are reasonable grounds to believe that the property
concerned must have been an instrumentality of an offence referred to in Schedule
1.

[24] I have no doubt that the disclosure would have played a greater role in the
confirmation of the order as the court would have known at that stage that Livia
Transport could be unaware of the preservation application. The non -disclosure
would most probably have influenced the court to demand that service of the
application should be served on Livia Transport. As indicated, rule nisi that was
made final in this case was rescinded following an application to that effect by Livia
Transport. The fact that Livia Transport was not served with the notice and that the
rei vindicatio application was not mentioned in the founding affidavit for the
preservation application must have influenced the NDPP to agree to th at
rescission. For reasons stipulated above, I am unable to find that the NDPP failed
to disclose all the information at its disposal when it brought its application.

[25] Conclusion .
With the above, the preservation order stands to be allowed and in line with the
Court’s approach to these applications, it would mean that the rei vindicatio
application stands to be dismissed. Counsel for Minister of Police argued that costs
should follow the outcome in that matter because when Livia Transport launched
its application, it was aware that that the property was impo unded by the police and
that it was the subject of criminal investigations as envisaged in section 20 of the
Criminal Procedure Act, No. 51 of 1977.

[26] I agree with th is contention . The rei vindicatio application appears to have been
prematurely brought , if one considers the totality of the circumstances prevailing
then. At the time the application was brought, Mhlengethwa, was still appearing in
court as an accused person, meaning that the investigations were still on. He had
been appearing as an accused person for just over two months at the stage.

Failure to cite the NDPP or the prosecutors seized with the matter and who would
be in a better position to tell if the confiscated property would be needed as
evidence in the criminal trial, may have been ill -advised. There is therefore no
reason why costs should not follow the outcome.

[27] The Order:
For the aforesaid reasons, I make the following order .
27.1 Rule nisi granted by this court on 08 February 2024, under case No.
540/2024 is hereby confirmed.
27.2 The Respondent in that matter is ordered to pay the costs.
27.3 The application in case No. 5817/2023 is dismissed with costs.




TV RATSHIBVUMO
DEPUTY JUDGE PRESIDENT
MPUMALANGA DIVISION OF THE HIGH COURT



APPEARANCES IN CASE NO. 58167/2023:
FOR THE APPLICANT : ADV. CFJ BRAND SC
INSTRUCTED BY: SLABBER ATTORNEYS INC
MBOMBELA
FOR THE RESPONDENT : ADV. MO LETSOKO
INSTRUCTED BY : STATE ATTORNEYS
MBOMBELA

APPEARANCES IN CASE NO. 540/2024:
FOR THE APPLICANT : ADV. AK MAUPJE
INSTRUCTED BY: STATE ATTORNEY
MBOMBELA
FOR THE RESPONDENT: ADV. CFJ BRAND SC

INSTRUCTED BY: SLABBER ATTORNEYS INC
MBOMBELA
DATE HEARD : 15 APRIL 2025
JUDGMENT DELIVERED: 22 APRIL 2025