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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024 -104694
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE 09 JUNE 2025
SIGNATURE
In the reconsideration application of :
KELEBOGILE PRECIOUS PHUMO First Appli cant
WOMEN AGAINST POVERTY AND HUNGER (PTY)(Ltd) Second Applicant
and
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Responden t
In re the preservation order of :
1. An amount of R1 273 049.40 and accrued interest held at First National Bank
(FNB) , account number 6[...] in the name of Women Against Poverty and
Hunger (Pty) Ltd with registration number 2022/79340107 .
2. The amount of R244 039.69 and accrued interest held at Capitec, account
number 1052213979 in the name of Women Against Poverty and Hunger.
3. An amount of R 4 22 8.50 and acc rued interest held at Capitec, account
number 4[...] in the name of Women Against Poverty and Hunger.
4. An amount of R13 722.85 and accrued interest held at Capitec, account
number 1[...] in the name of Kelebogile Precious Phumo, ID Number: 8[...] 8
JUDGMENT IN THE RECONSIDERATION APPLICATION
LABUSCHAGNE J
ORDER :
[1] The ex parte preservation order granted on 18 September 20 24 is
discharged.
[2] The NDPP is directed to pay the costs of the application and reconsideration
application on an attorney and client scale, Scale A.
JUDGMENT
[3] This is an application for reconsideration, on an urgent basis, on a
preservation of property order granted in terms of section 38 of the
Prevention of Organised Cri me Act, 121 of 1998 (POCA) against positive
bank balances in various bank accounts which are set out supra in the
headpiece.
[4] The NDPP contends that the bank accounts’ credit balances are as a result
of a multip lication scheme operated by the first applicant and her company,
the second applicant.
[5] The NDPP contends that there is no urgency of the matter as, during May
2025, the applicants requested the NDPP to hold over the exchange of
pleadings pending discussions. The NDPP agreed to this and was then, out
of the blue, met with an urgent application for reconsideration.
[6] The applicants in turn contend that the preservation of property order has
expired and/or lapsed on three grounds:
6.1 The applicants contend that the ex parte order was never properly
served on the applicants in terms of section 39(1)(a) of POCA, as
the address upon which such notice was served is not the registered
address of the second applicant and no service was effected upon
the first applicant.
6.2 The applicants further contend that the notice of the order contain ed
in the Government Gazette pertains to an order dated 18 September
2023. The notice as published in the Government Gazette is
therefore invalid and was not published in terms of section 39(1)(b)
of POCA.
6.3 The applicants thirdly contend that, even i f both subsections (a) and
(b) of section 39 of POCA have been met, the respondent has not
given the notices “as soon as practicable” as required by the Act but
instead waited until January 2025 to give notice (which notices are
faulty).
[7] The upshot of the applicant’s approach is that the preservation order has
lapsed in terms of section 40 of POCA.
[8] In answer to the NDPP’s challenge to the urgency of the application, the
applicants contend that they cannot trade as a result of the expired
preservation order. The urgency is then self - evident.
THE EX PARTE ORDER
[9] On 18 September 2024 Ledwaba DJP granted an ex parte court order in
Chambers, preserving the property identified in the headpiece above and
prohibiting any dealing with the property (paragraph 2 of the preservation
order).
[10] The order provided that the NDPP must, in terms of section 39 of POCA:
“5.1 Cause notice of this order in the form set out in annexure “A”,
together with documents supporting the application, to be served by
the sheriff on Women Against Poverty and Hunger (Pty) Ltd and
Kelebogile Precious Phumo, being the director of Women Against
Poverty and Hunger (Pty) Ltd, at No. 5[...] N[...] R[...] Road, Kempton
Park, Johannesburg, Gauteng Province.
5.2 Cause notice of this order, and the forms set out in annexure “A”, to
be published in the Government Gazette as soon as practicable after
the order was granted.
6. In the event the sheriff has not been able to serve on Women
Against Poverty and Hunger (Pty) Ltd, publication in the Government
Gazette will be regarded as sufficient service.”
[11] The facts of this matter establish that the aforesaid address set out in the ex
parte court order is not the address of the applicants. Further, service by
means of publication in the Government Gazette is marred by the fact that
the wrong year (2023) was used with reference to the date of the court order
published in the Government Gazette.
[12] Despite the order being granted on 1 8 September 2024, the applicants only
became aware of it through service that was effected at a different address
on 10 January 2025. This occurred when service took place at the business
address of the second applicant.
[13] The NDPP clearly did not appreciate that it advanced a wrong factual
address as the address for service upon an affected party in preservation
proceedings.
[14] The preservation order provides in paragraphs 10 and 11 for
reconsideration. The order reads:
“10. Any person who is affected by the order may on good cause shown,
apply for reconsideration. Such application shall be made:
10.1 In instances where the person is able to justify the
application on grounds of urgency, upon three days’ notice
(or such shorter period as the court may determine on good
cause shown) ;
10.2 In other instances, upon at least seven days’ notice to the
applicant and all other persons identified in this order as
being persons who may have an interest in the property.
11. Such an application must be made not later than eight days after the
person applying for reconsideration becomes aware of the existence
of the order, or within such further period as the court may consider
reasonable, bearing in mind the underlying objectives in Chapter 6 of
POCA. ”
URGENCY
The Applicants’ request for pleadings to be held in abeyance during May
2025 and the acceptance thereof prima facie removes the urgency of
this matter . However, the ex parte order has has the continuing
effect of preventing the applicant s access ing and operat ing their
respective aforesaid accounts. That is where the urgency remains
despite the cease fire arrangement. While this is not to be seen as a
legitimate means of hoodwinking the NDPP into a false sense of
security , ie that urgent proceedings have been staved off, the
conduct of the NDPP is not beyond reproach , as will appear below. I
am satisfied that urgency remains insofar as the constitutional rights
of the applicants’ are impacted adversely.
LEGAL PRINCIPLES
[15] Although section 38 does provide for the NDPP to approach the court on an
ex parte basis for a preservation order, that does not relie ve the NDPP from
a normal burden imposed on every applicant who approaches the court for
an ex parte order. Applying to court for an order ex parte should only be
invoked when there is some good cause or reason for the procedure, such
as genuine urgency, or when the giving of notice would defeat the very
object for which the order is sought (see NDPP v Braun and Another 2007
(1) SACR 326 (C) at paragraphs [20] and [21]).
[16] Further, an ex parte applicant has a duty of utmost good faith. This requires
that material and correct facts be placed before the court. Where facts have
been misstated, even bona fide , this does constitute breach of the duty to
verify facts before placing them before court for purposes of obtaining an ex
parte order (see Schlesinger v Schlesinger 1979 (4) SA 342 (W)).
[17] The fact that the NDPP obtained an order providing for service on the wrong
address is not without consequences. In this instance it has ca used a
substantial delay in notifying affected parties of the preservation of property
order and thereby constitutes a breach of the duty of utmost good faith.
[18] Whilst I appreciate that the mere existence of a mistake made in a bona fide
manner should be capable of correction, if properly explained, such
correction must take place within a time period that reflects an appreciation
by the NDPP of the draconian effects of an ex parte preservation order on
the constitutional rights of the public. In this instance, a delay of some four
months ensu ed, which is not explained by the NDPP. The court has not
been apprised as to when it ascertained the correct address for service and
why it took so long to obtain it. This raise s the spe ctre of a lack of
appreciation by the NDPP of the need to respect constitutional rights with
prompt and transparent attempts to correct such error. More troubling, is the
spectre of indifference by the NDPP once the ex parte order has been
granted.
[19] While I make no positive finding in respect of these concerns, the lapsing of
time before proper service has taken place underpins the order granted in
this matter. In National Director of Public Prosecutions v Lethopa and
Others (2023/132147) [2025] ZAGPPHC 249 (1 1 March 2025) , Modiba J set
aside forfeiture proceedings where the delay in publication of the ex parte
preservation order was two months.
[20] In the ex parte application the NDPP undertook to serve the preservation
order as required by section 39. In the Lethopa matter Modiba J stated the
following in similar circumstances at paragraph [64]:
“[64] The NDPP failed to fulfil her undertaking to serve the preservation
order and application on the respondents. She also did not publish
the preservation order in the Government Gazette, as required by
section 39(3) of POCA as it took more than two months do so. As a
result of these failures, the rights of respondents and those of other
persons affected by the preservation order were infringed in a
manner not contemplated by the POCA. These undertakings were
incorporated in the preservation order and were thus binding on the
NDPP. By failing to fulfil them, she breached the preservation order
and acted unconstitutionally.”
[21] The NDPP contends that the applicants were running a multiplication
scheme in breach of the FAIS Act, the Banks Act and FICA. As the order
that I grant in this matter does not deprive the NDPP of the right to again
pursue its remedies as set out in Chapter 6 of POCA, I do not intend going
into the detail of the facts of this matter, save to comment that the NDPP did
not provide the supporting source documents necessary to establish its
factual averments. The report by the Financial Sector Conduct Authority
(FSCA) inspector is not annexed . The absence of confirmatory affidavits on
factual issues means the application for preservation and forfeiture falls short
of establishing the facts necessary for Chapter 6 relief .
[22] Nevertheless, the basis of the order that I have granted is to be found in the
procedural failures by the NDPP and their impact on the constitutional rights
of the applicants.
[23] It suffices to state that the ex parte preservation order cannot stand in the
face of a four month delay in notifying the applicants of a court order and
publishing it (even defectively) in the Government Gazette.
[24] The applicants have argued for a punitive cost order against the NDPP due
to the egregious nature of the violation of constitutional rights and the duties
of the NDPP to the court in the ex parte proceedings. I agree. Such
considerations also informed the decision of the court in the aforesaid matter
in Lethopa .
[25] A breach of constitutional rights is inherently urgent. Although the ex parte
court order would stand until set aside, it is apparent on the facts that it was
at risk of being set aside after passing of even a two month period from
granting of the court order without proper publication and service. In light
thereof I do not intend holding the applicant to the time periods imposed by
sec 39 of POCA or the periods set out in the ex parte court order for
reconsideration. While the applicant purported to execercise their powers to
seek a reconsideration in terms of rule 6(12 )(c). The legality of the continued
existence of the ex parte court order is a matter for the High Court to
determine and, on the facts of this matter, it does so on the basis of urgency.
[26] In the premises I grant the order set out supra, including a punitive cost
order against the NDPP.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
APPEARANCES: ADV A KOTZÉ
For the Applicants
INSTRUCTED BY: MASEYA ATTORNEYS
81 Tortelduif Drive
Birch Acres
Kempton Park
1619
ADV S CHIKUNI
For the NDPP
INSTRUCTED BY: THE STATE ATTORNEY, PRETORIA