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REPUBLIC OF SOUTH AFRICA






IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

CASE NO:2024/110053
DOH: 24 June 2025
DECIDED: 21 July 2025
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
SIGNATURE:
DATE: 21 July 2025

In the matter between:

KELEBOGILE PRECIOUS PHUMO First Applicant

WOMEN AGAINST POVERTY AND HUNGER (PTY) LTD Second Applicant

And

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Respondent

—————————————————————————————————————

ORDER
—————————————————————————————————————

1. The respondent or their attorneys are directed to serve forthwith, the order
dated 30 September 2024 together with a copy of this judgment to the rema ining 8
respondents cited in paragraph 4 of the order of 30 September 2024, within 15 days
from date of this order. In the event they had been so served, the respondent must
immediately file the necessary returns of service.

2. Should the 8 respondents w ish to react to that order, they must do so in line
with the time frames set out in that order.

3. The costs of the present motion will be costs in the cause.

—————————————————————————————————————
JUDGMENT
—————————————————————————————————————
Bam J

1. The applicants brought the presen t motion by way of urgency for
reconsideration of the order granted by this Court on 30 September 2024 (the order)
per Motha J. The application was heard during the urgent motion court of the week
of 24 June 2025, with the respondent resisting the relief s ought by the applicants.
The order was granted ex-parte (without notice to the respondents) for preservation
of certain property, as provided for in Section 38 of the Prevention of Organised
Crime Act1, POCA, which reads:

’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.

1 Act 121 of 1998.

(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;…’

2. I commence by introducing the parties.

Parties

3. The first applicant, Ms Kelebogile Precious Phumo, is an adult person
currently residing at 1 […] B[...] C[...] Street, Coral Ridge, Pomona, Kempton Park,
Gauteng. The second applicant is Women Against Poverty and Hunger, (Pty) Ltd,
WAPH, a company duly incorporated in terms of South African laws, with registration
number 2022/793401/07. It principal place of business, according to the applicants,
is 6 [...] B[...] C[...] Street, Coral Ridge, Pomona, Kempton Park, Gauteng. The first
applicant is a director of the second applicant. She has deposed to the affidavit for
reconsideration on behalf of herself and the second applicant.

4. The respondent is the National Director of Public Prosecutions; it is
established in terms of the National Prosecuting Act, Act 32 of 1998.

Background

5. The facts leading to the order of 30 September are largely common cause.
The respondent’s case is set out in the affidavit deposed to by Adv Nicole Irene
Peters, a Deputy Director, in the respondent’s employ, supported by the affidavit
deposed to by Mr Enock Tumisang Modikoe, a Senior Financial Investigator who is
also in the employ of the respondent. The res pondent’s case relied, in part, on the
investigation carried out by the National Consumer Commissioner, NCC and led by
Ms Mpho Khunou (Khunou). Ms Khunou had provided a report and a sworn
statement to the respondent’s Mr Modikoe, detailing her analysis of the activities of
the applicants which led her to conclude that there was reasonable belief that the

applicants were conducting a multiplication or pyramid scheme, in contravention of
section 43(3)2 and 43(4)3 of the Consumer Protection Act4. CPA.

6. Ms Khunou’s investigations were further bolstered by the investigation carried
out by Ms Reshanda Anita Brown, (Brown), a Senior Financial Analyst at the
Financial Intelligence Centre, FIC. Brown provided a report and a sworn statement to
the respondent, confi rming the outcome of her analysis of several bank accounts
held in the name of WAPH, Ms Phumo and various individuals connected to them.
Brown came to the conclusion that there was a reasonable belief that the monies
held in the various bank accounts constituted proceeds of unlawful activities and that
the bank accounts were instrumentalities of various offences set out in Schedule 1 of
POCA, namely, theft, fraud and money laundering.

7. In addition to contravening the provisions of the CPA, it was the respondent’s
case that the applicants violated the provisions of the Banks Act 5, in that they
conducted the business of a bank, without being licensed to do so. The business of a
bank is described in the Bank’s Act as:

‘(a) the acce ptance of deposits from the general public (including persons in
the employ of the person so accepting deposits) as a regular feature of the
business in question;
(b) the soliciting of or advertising for deposits; and
(c) the utilisation of money, or of th e interest or other income earned on
money, accepted by way of deposit as contemplated in paragraph (a)’

8. In terms of Section 18A of the Banks Act, no person shall conduct the
business of a bank unless such person is a public company and is registered as a

2 (3) A multiplication scheme exists when a person offers, promises or guarantees to any consumer,
investor or participant an effective annual interest rate, as calculated in the prescribed manner, that is
at least 20 per cent above the REPO Rate determine d by the South African Reserve Bank as at the

date of investment or commencement of participation, irrespective of whether the consumer, investor
or participant becomes a member of the lending party.
3 (4) An arrangement, agreement, practice or scheme is a pyramid scheme if— (a) participants in the
scheme receive compensation derived primarily from their respective recruitment of other persons as
participants, rather than from the sale of any goods or services; or (b) the emphasis in the promotion
of the scheme indicates an arrangement or practice contemplated in paragraph (a).
4 Act 68 of 2008.
5 Act 94 of 1990.

bank in terms of this Act. Section 18A (2) provides that any person who contravenes
a provision of subsection (1) shall be guilty of an offence.

The order of 30 September 2024

9. After considering the respondent’s case, the court granted the preser vation
order. In terms of paragraph 4 of the order, the respondent undertook to cause
notice of the order, together with the documents supporting the application, to be
served by the Sheriff on all the respondents mentioned therein, wh ose bank
accounts had been preserved by the order. I summarise the terms of the order and
the names of the people who had to be served:

1. An amount of R 661 928 6 and accrued interest, held in WAPH’s ABSA
account …1[…]
2. Amount of R 945 635, held in WAPH’s Nedbank account … 5[…]
3. An amount of R 178 756, held in the name of K P Phumo’s FNB
account …3[…]
4. An amount of R 1 505 07, held in K P Phumo’s ABSA acc …3[…];
5. An amount of R 2 366, held in K P Phumo’s Capitec Acc …6[…]
6. An amount of R 4 008, held in K P Phumo’s Capitec Account … 0[…]
7. An amount of R2 08 394, held in Itumeleng Thai’s Nedbank
account …9[…]
8. An amount of R 1 831, held in Thulisiwe Mbambo’ Capitec
account …0[…]
9. An amount of R 36 089 held in Busisiw e Primrose Horacio’s Capitec
account … 5[…]
10. An amount of R 4 822 held in Nomsa Mbalati’ Capitec … 3[…]
11. An amount of R 4 695, held in Nomakhosi Zwane’s Capitec
account …4[…]
12. An amount of R 2 45 794, held in Gugu Cele’s Capitec account …. 4[…]
13. An amount of R 236 709 95, held in Mpho Patsa Mokoena’s Capitec
account…1[…]

6 Cents have been omitted.

14. An amount of R 21 153, held in Agnes Mofokeng’ Capitec
account …2[…]

Summary of the parties’ contentions before this court

10. The main point taken by the applica nts in their founding papers was that the
applicants had not been properly served. In their heads of argument and for the first
time, the applicants raised three further points. They are: Service was effected after
the preservation order had already expire d; that of the 10 people mentioned in the
order, the respondent merely served two, namely, the applicants, and even then at
the wrong address, hence the contention that even the applicants were not served at
all;. Finally, it was submitted that even if the respondent may be able to demonstrate
that the order had been served on the respondents as set out in the court order, it
was not served as soon as practicable after it had been granted, as directed in the
order.

11. From t he respondent’s side, their attack was directed at demonstrating that
the applicants had failed to make a case for urgency. In addition to denying the
assertions made by the applicants in their papers, the respondents submitted that
the order directed that any application for reconsideration be made within 8 days
after the person wishing to apply for reconsideration becomes aware of the order;
that while the applicants had been served by the sheriff on 25 February 2025, they
took steps towards reconsiderati on only on 3 June (way more than three months
after service) and the application proceeded, as already mentioned only on 24 June.
In the second instance, the respondent submitted that the applicants’ contention that
the order was not served as soon as prac ticable after it was made, is not a matter
that was before the court when the order was made. As such it is not a matter for
reconsideration. The respondent further submitted with reference to case law, that
the applicants had failed to make a case for rec onsideration; that in any event, the

the applicants had failed to make a case for rec onsideration; that in any event, the
applicants had left the case that was placed before the court for issuing the
preservation order undisturbed.

Analysis

12. I hold the view that urgency is no longer an issue between the parties as the
merits for reco nsideration were argued in full. I would however, caution the
applicants regarding the manner in which they decided to approach the court. It is
trite that the touchstone for urgency is whether an applicant will be afforded
substantial redress at a heari ng in due course7. An applicant therefore is enjoined to
set out explicitly why it claims it cannot be afforded substantial redress in a hearing
in due court. In their founding papers, the applicants do not make such as case at all.
Their only basis for urgency is that there is a pending forfeiture application.

13. The applicants further deserve censure for failing to set out their case in their
founding papers and choosing to make a new case in the replying affidavit and in
their Heads of Argument. I will return to this issue later in this judgment.

14. I do not agree with the applicants that they were not properly served or at all,
and for that reason, their application must be upheld. Firstly, the Sheriff has
confirmed service upon the two applicants by way of returns. Secondly, any
prejudice the applicants m ay argue has been watered down substantially, if not
completely erased, by their own delay after service in February. Linked to this point
is the submission about the duty to make full and frank disclosures when a party
approaches court on an ex - parte basis. This duty is mentioned for the first time in
the applicants’ Heads of Argument to buttress the point that the applicants were
never properly served because service took place at the wrong address. The
assertion, it must be pointed out, is not substantiated in any way.

15. It is submitted that, in providing an incorrect address for the two applicants,
the respondent failed to make full and frank disclosures when they took the
preservation order. But this would be a rigid application of rules. The applicants were

preservation order. But this would be a rigid application of rules. The applicants were
served, at what the founding papers suggest is the registered office of the second
applicants. Again, apart from raising the point for the first time in their heads or
argument, and thus denying the respondent the opportunity to deal with it, the
applicants do not point to any prejudice as a result of being served at what they say
is the wrong address. The Constitutional Court in Eke v Parsons:

7 Rule 6 (12) (b); East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and
Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011), paragraph 6.

‘[39]…Without doubt, rules governing the court process cannot be
disregarded. They serve an undeniably important purpose. That, however,
does not mean that courts should be detained by t he rules to a point where
they are hamstrung in the performance of the core function of dispensing
justice. Put differently, rules should not be observed for their own sake. Where
the interests of justice so dictate, courts may depart from a strict observa nce
of the rules. That, even where one of the litigants is insistent that there be
adherence to the rules. Not surprisingly, courts have often said “[i]t is trite that
the rules exist for the courts, and not the courts for the rules”.
[40] Under our consti tutional dispensation, the object of court rules is twofold.
The first is to ensure a fair trial or hearing. The second is to “secure the
inexpensive and expeditious completion of litigation and . . . to further the
administration of justice”. I have alrea dy touched on the inherent jurisdiction
vested in the superior courts in South Africa. In terms of this power, the High
Court has always been able to regulate its own proceedings for a number of
reasons, including catering for circumstances not adequately covered by the
Uniform Rules, and generally ensuring the efficient administration of the
courts’ judicial functions.’8

16. I again add that any prejudice the applicants may want to assert is watered
down substantially by their own delay in launching thei r application for
reconsideration. It must accordingly be rejected.

17. On the point that service was effected long after the preservation order had
expired, and that there is no application for forfeiture pending before the court, the
point lacks merit. The applicants make the point in their founding affidavit that their
application is urgent because of a pending forfeiture application. In any event, the
order was published on 1 November 2024 and application for forfeiture was made on

order was published on 1 November 2024 and application for forfeiture was made on
30 January 2025. The application is filed on Caselines, albeit incorrectly labelled as
an application for preservation. Section 40 (a) makes plain that a preservation order:


8 (CCT214/14) [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) (29 September
2015), paragraphs 39-40.

‘shall expire 90 days after the date on which notice of the making of the order
is published in the Gazette unless-
(a) 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;’

18. As to the submission that the preservation order was not served as soon as
practicable after it was made, I again point to the lack of prejudice and point note that
this submission is not raised to underscore any prej udice, given the applicants’ delay
in reaching this court after service, but solely to foment delay in finalising the matter.

19. With regard to the failure to serve upon the remaining 8 respondents
mentioned in the order, it must be noted that the challenge was raised for the first
time in the applicants’ Heads of Argument. Thus, even if the respondent wished to
challenge it, th ey were not afforded the opportunity to do so. It is trite that an
applicant must make their case in the founding affidavit and stand or fall by it 9.
Having said that, I was unable to locate the return s of service pertaining to the
remaining 8 respondents in the entire file. This is a matter of grave concern, given
that the respondent has already soldiered on with the application for forfeiture.

20. Undoubtedly, the remaining 8 respondents have a dire ct and substantial
interest in this litigation, given that their bank accounts were preserved, hence the
respondent undertook to serve upon them.

Merits for reconsideration

21. The applicants sought to make a case built on the requirements of an interdi ct
as a basis for reconsideration of the order. They made submissions suggesting, inter
alia, violation of Constitutional rights on the basis that the ex-parte order was not
served upon them prior to the NPA obtaining the ‘interim order.’ In their heads of
argument they sought a setting aside of the ‘expired preservation order’. For the rest,

argument they sought a setting aside of the ‘expired preservation order’. For the rest,
the applicants confirmed the evidence placed before this court leading to the

9 Gold Fields Limited and Others v Motley Rice LLC , In re: Nkala v Harmon y Gold Mining Company
Limited and Others (48226/12) [2015] ZAGPJHC 62; 2015 (4) SA 299 (GJ); [2015] 2 All SA 686 (GJ)
(19 March 2015), paragraph 121; Director of Hospital Services v Mistry (272/77) [1978] ZASCA 126 (9
November 1978).

preservation order whilst asserting that the monies in the bank accounts are
legitimate; that if the respondent wishes to confirm such legitimacy, they must call
each and every one of their 85 000 members to come to court and testify. The
applicants made no attempt to deny the charge that they are engaged in a
multiplication scheme and the fac t that the first applicant engages in theft, fraud and
money laundering, asserting that they are in the business of buying and selling
groceries to their members. The applicants made the statement that the parties have
been in and out of court on the same issues, and that since the preservation was
rescinded in the last application heard in this court in June 2025, this court too
should follow the same route.

22. The respondent wasted no time in asking that the application for
reconsideration be dismissed on the basis of failure to make a case. I am of the view
that any order on the merits of this matter must be made following demonstration of
service on all respondents. Also, it is about time that the issues between the parties
are solved once and for all. I do not accept that it would be in the interests of justice
to rescind or set aside the preservation order, at least, not on the basis of what is set
out in the applicants’ founding papers. Thus, I intend to issue an order which will
direct the further conduct of this matter.

Order

1. The respondent or their attorneys are directed to serve forthwith, the order
dated 30 September 2024 together with a copy of this judgment to the remaining 8
respondents cited in paragraph 4 of the order of 30 Septemb er 2024, within 15 days
from date of this order. In the event they had been so served, the respondent must
immediately file the necessary returns of service.

2. Should the 8 respondents wish to react to that order, they must do so in line
with the time frames set out in that order.


3. The costs of the present motion will be costs in the cause.

———————————————
N.N BAM (Ms)
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA

Date of Hearing: 24 June 2025
Date of Judgment: 21 July 2025

Appearances:

Counsel for the Applicant: Adv A Kotzé

Instructed by: Maseya Attorneys
c/o Rikhotso T.H Attorneys & Associates
For the respondent: Adv T Matambela

Instructed by: State Attorney
Pretoria