SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG








Case No: 39174/2019

In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant

and

ALKPEHAE PRINCE Defendant

ALKPEHAE ZANELE Respondent

___________________________________________________________________

JUDGMENT
___________________________________________________________________

(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES

19 December 2024 ………………..……………………
DATE SIGNATURE

2

BARNES AJ

Introduction

[1] Two related applications have come before me for determination.

[2] The first application is one in terms of sections 30 and 31 of the Prevention of
Organised Crime Act 121 of 1998 (“ the POCA”). It is for an order to realise certain
property and apply the proceeds thereof in order to satisfy a confiscation order
issued by the Regional Court, Johannesburg in terms of section 18 of the POCA.
This application is brought by the Applicant, the National Director of Public
Prosecutions.

[3] The second application is one in terms of Rule 42 of the Uniform Rules of
Court for an order varying the confiscation order made by the Regional Court. This
application is brought jointly by the defendant, against whom the confiscation order
was made, and the respondent, who is married to the defendant in community of
property.

Background

[4] On 24 October 2018, the defendant was convicted by the Regional Court,
Johannesburg on charges of fraud, corruption and possession of suspected stolen
property and sentenced to an effective five years imprisonment.

[5] On 16 July 2019, pursuant to an application by the Applicant, the Regional
Court made a confiscation order against the defendant in the amount of
R2 953 600.00. The defendant applied for leave to appeal against his conviction,
sentence and the confiscation order . Leave to appeal was refused by the Regional
Court.

[6] On 11 November 2019, on application by the Applicant, on an ex parte basis,
this Court granted a provisional restraint order, with a rule nisi, in terms of section 26
of the POCA against the realisable property of the defendant. This comprised: the

3

matrimonial home and primary residence of the defendant and the respondent ,
which is registered in both their names , the household contents in respect thereof
and a Toyota Fortuner motor vehicle, which is registered in the name of the
defendant.

[7] The defendant and the respondent opposed the confirmation of the
provisional restraint order.

[8] After hearing submissions from both sides, this Court confirmed t he
provisional restraint order in a judgment handed down on 19 March 2021.

[9] The Applicant now seeks the realisation of the property under restraint in
order to satisfy the confiscation order. The defendant and the respondent seek the
variation of the confiscation order.

[10] It is convenient to deal with the variation application first. I do so below.

The Variation Application

[11] In the variation application, the defendant and the respondent seek the
following relief:

“To amend, add to, or vary; and further confirm the Order dated 16 July 2019,
under the above case number in the above Honourable Court in terms of
section 18 of the Prevention of Organised Crime Act 121 of 1997 (“POCA”)
the amount of R2 953 600.00 in the following terms:

1. by varying the amount of R2 953 600.00.

2. by deleting the amount of USD188 350.00 as well as the R72 200.00
and the Nigerian Naira 2843.00 (approximately R111.00 as at 4 May 2023)”

[12] The variation application is opposed by the Applicant on the basis that it is not
competent in law, inter alia, because this Court lacks jurisdiction to entertain it.

4


[13] This is undoubtedly correct. The confiscation order was granted by the
Regional Court sitting as the trial court and this Court does not have jurisdiction to
vary it. Furthermore, as was correctly submitted by the Applicant, the confiscation
order made by the Regional Court does not need to be confirmed by this Court.

[14] There are further fundamental difficulties with the variation application. It was
brought after an application for leave to appeal against the confiscation order had
been considered and dismissed by the Regional Court. Furthermore, it was brought
almost four years after the grant of the confiscation order.
1

[15] The purpose of Rule 42 is “to correct expeditiously an obviously wrong
judgment or order.”
2 It is therefore the case that even if an applicant establishes that
subrule (1) applies, she should not be heard to complain after the lapse of a
reasonable time.3 What is a reasonable time depends upon the facts of each case. 4
In t his case the variation application was brought almost 4 years after the
confiscation order was granted with no explanation whatsoever for this extreme
delay. This, in my view, is unreasonable.

[16] In oral argument, the Applicant sought to contend that the variation application
was brought not only in terms of Rule 42 of the Uniform Rules of Court but also in
terms of sections 47 and 48 of the POCA. There is no merit in this contention.
Section 47 of the POCA applies to variation and rescission of preservation of
property orders; orders for the appointment of a curator bonis and orders in respect
of immovable property . It does not apply to confiscation orders. Section 48 of the
POCA does not deal with variation or rescission at all.

[17] Section 34 of the POCA deals with the variation of confiscation orders by the
High Court but only in the following limited circumstances:

1 The confiscation order was granted on 16 July 2019 in the Regional Court. The application to vary

the confiscation order was brought in the High Court on 11 May 2023.
2 Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E) at 471E-F; Promedia Drukkers & Uitgewers
(Edms) Bpk v Kaimowitz 1996 (4) SA 411 (C) at 417B-I.
3 First National Bank of Southern Africa Ltd v Van Rensburg NO: in re First National Bank Southern
Africa Ltd v Jurgens 1994 (1) SA 677 (T) at 681B-G.
4 Promedia Drukkers & Uitgewers (Edms) Bpk 1996 (4) SA 411 (C) at 421G.

5


“34 (1) If the High Court is satisfied that the realisable property is inadequate
for the payment of the balance of the amount to be recovered under a
confiscation order, that court may, on the application of the defendant, issue a
certificate to that effect stating the reasons for the court being so satisfied.”

[18] The present variation application was not brought in terms of section 34 of the
POCA.

[19] In the circumstances , the court lacks jurisdiction to deal with the variation
application which is also hopelessly out of time. The application stands to be
dismissed on this basis alone, without regard to its merits.

[20] I deal next with the realisation application brought by the Applicant.

The Realisation Application

[21] The realisation application is brought in terms of sections 30 and 31 of the
POCA.

[22] There are three jurisdictional requirements set out in section 30(1) of the
POCA which must be satisfied in order for a court to exercise its powers in terms of
section 30(2) to grant an order for the realisation of property that is subject to a
confiscation order. These are the following:

a. a confiscation order has been made against the defendant concerned;
b. such confiscation order is no longer subject to review or appeal; and
c. the proceedings against the defendant have not been concluded.

[23] In this matter, the following important facts are common cause between the
parties:

a. A confiscation order in terms of section 18 of the POCA has been
granted against the defendant but has not been satisfied.

6

b. There is no pending review or appeal against the conviction of the
defendant or the confiscation order itself.

[24] The first two jurisdictional requirements stipulated in section 30(1) of the
POCA are therefore satisfied in this case.

[25] Turning to the third jurisdictional requirement, section 17 of the POCA defines
“conclusion of proceedings” as follows:

“Conclusion of proceedings against defendant
17. For the purposes of this Chapter, the proceedings contemplated in terms
of this Chapter against a defendant shall be concluded when –
(a) the defendant is acquitted or found not guilty of an offence;
(b) subject to section 18(2), the court convicting the defendant of an
offence sentences the defendant without making a confiscation order against
him or her;
(c) the conviction in respect of an offence is set aside on review or
appeal; or
(d) the defendant satisfies the confiscation order made against him or
her.”

[26] The Applicant submitted, correctly, that where a confiscation order has been
made against a defendant, the proceedings may be said to be concluded in terms of
section 17 of the POCA in one of two ways, namely:

a. having the confiscation order set aside by a competent court on appeal
or review; or
b. the defendant paying the confiscation amount in full.

[27] It is common cause that neither of these things have happened in this case.
The Applicant accordingly submitted that, the requirements for the grant of a
realisation order having been satisfied, this Court ought to grant the order sought.

The Nature of the Opposition

7


[28] The defendant and the respondent did not oppose the realisation application
on the basis that any of jurisdictional requirements stipulated in section 30(1) of the
POCA had not been satisfied. Instead, their opposition was based on the following
grounds:

a. Firstly, it was contended that the respondent did not have the
opportunity to make representations in connection with the realisation of the
property under restraint, as is required in terms of section 30 of the POCA.
There is no merit in this contention. The respondent opposed this application
and deposed to an affidavit in support of her opposition thereto.
b. Secondly, it was contended that the property under restraint, notably
the matrimonial home and the motor vehicle, were neither utilised nor
instrumental in the offences committed by the defendant . While this appears
to be common cause on the facts , the correct legal position is that realisable
property in terms of the POCA need not be the proceeds of crime, nor
instrumental in the commission thereof. I n National Director of Public
Prosecutions v Rautenbach and Others 2005 (1) SACR 530 (SCA) the
Supreme Court of Appeal held that “once it is shown that a material benefit
accrued, the offender may be ordered to pay to the state the monetary
equivalent of that benefit even if it means that it must be paid from assets that
were legitimately acquired.”
5 The second ground of opposition does therefore
not assist the defendant and the respondent.
c. Thirdly, it was contended that the respondent, who is married to the
defendant in community of property, is an innocent party and that her rights
and interest in the property under restraint should therefore be excluded from
any realisation order in terms of section 52 of the POCA. It is this third ground
of opposition that requires closer scrutiny.

The “Innocent Owner” Argument

[29] In support of the contention that the respondent’s rights and interest in the

5 At para 52.

8

property under restraint should be excluded from any realisation order made by the
court in terms of section 52 of the POCA, counsel for the defendant and the
respondent sought to rely on a number of judgments. All of these , however, are
matters which deal with f orfeiture orders in terms of the POCA and not with
confiscation or realisation orders.
6

[30] The Applicant, for its part, contended that section 52 of the POCA applies only
to forfeiture orders and not to confiscation or realisation orders.

[31] This issue was not adequately ventilated in either the heads of argument or in
oral argument and accordingly, on 3 September 2024, the Court addressed
correspondence to the parties which stated the following:

“The application is one in terms of sections 30 and 31 of the Prevention of
Organised Crime Act 121 of 1998 (“the POCA”) for an order to realise certain
property and apply the proceeds thereof for the purposes of satisfying a
confiscation order issued by the Regional Court, Johannesburg against the
defendant, Mr Alkpehae, in terms of section 18 of the POCA.

The property sought to be realised is however part of the joint estate of Mr
and Mrs Alkpahae, who are married in community of property, and includes
the matrimonial home, in which Mrs Alkpehae and a minor child born of the
marriage presently reside.

During argument of the matter, counsel for Mr and Mrs Alkpehae submitted
that “in the event that any Order is made, the above Honourable Court will
exclude the rights and interests of [Mrs Alkpehae] from the operation thereof
in terms of section 52 of the POCA.”

Counsel for the State however submitted that section 52 of the POCA is only
relevant to forfeiture orders made in terms of the POCA.


6 For example and most notably: Brooks and Another v NDPP 2017 (2) All SA 690 (SCA).

9

Furthermore, all the case law referred to by counsel for Mr and Mrs Alkpehae
in support of the contention quoted above, are matters which dealt with
forfeiture orders, and not with confiscation orders.

In the circumstances, counsel for both the State and Mr and Mrs Alkpehae are
requested to assist the Court by providing written submissions which address
the following questions:

Whether section 52 of the POCA applies to confiscation orders or may
competently be applied in the context of an application for the realisation of a
confiscation order; and

If the answer to the above is in the negative, what are the legal and
constitutional implications for the rights of an “innocent owner” such as Mrs
Alkpehae in the context of an application for the realisation of a confiscation
order.”


[32] Counsel for both parties submitted supplementary submissions and the Court
is indebted to them for their assistance.

[33] The issue in respect of which supplementary submissions were requested by
the Court is a novel one, as was noted by the Applicant:

“There is currently no known precedent in our law wherein a spouse’s interest
in joint property, by virtue of marriage in community of property, has been
raised and determined in an application for a realisation order.”

[34] The Applicant’s supplementary submissions provided a helpful analysis of the
distinct legal character of forfeiture orders on the one hand and confiscation and
realisation orders on the other. The Applicant submitted that it followed from this, and
from the clear language of the POCA, that section 52 of the POCA applies to
forfeiture orders only.

10

[35] The defendant and the respondent, in their supplementary submissions, made
the following contention:

“It is patently clear in relation to the above matter that the application in terms
of sections 30 and 31 of the POCA, in relation to the wife of the Defendant
who has been married to the Defendant in community of property since 16
May 2022 and that her rights and interests in the property will be excluded
from any Order that the Honourable Court might make in the circumstances.”

[36] Their submissions failed, however, to explain how this is “ patently clear. ”
Moreover, the judgments sought to be relied on by the defendant and respondent in
their supplementary submissions still pertained to forfeiture orders under the POCA
and not to confiscation or realisation orders.
7

Analysis

[37] The starting point in the analysis is of course the language of the POCA.
Section 52 of the POCA explicitly provides that a person’s interest may be excluded
from a forfeiture order in certain circumstances. Section 52(1) of the POCA provides
in relevant part as follows:

“Exclusion of interests in property
52 (1) The High Court may, on application –
(a) under section 48(3); or
(b) by a person referred to in section 49(4),
and when it makes a forfeiture order, make an order excluding certain
interests in property which is subject to the order, from the operation thereof.
(2) The High Court may make an order under subsection (1) if it finds on a
balance of probabilities that the applicant for such an order –
(a) had acquired the interest concerned legally; and
(b) neither knew nor had reasonable grounds to suspect that the property in
which the interest is held:

7 Most notably: Mazibuko v NDPP 2009 (3) All SA 538 (SCA).

11

(i) is an instrumentality of an offence referred to in Schedule 1; or
(ii) is the proceeds of unlawful activities.”

[38] There is no similar provision in the POCA in respect of confiscation or
realisation orders. A plain reading of POCA then, does not permit the exclusion of
interests where confiscation or realisation orders are concerned.

[39] In addition to the plain language of the provisions, a proper interpretation of
the POCA must take due cognisance of the distinct legal character of forfeiture
orders on the one hand and confiscation and realisation orders on the other.

Forfeiture Orders

[40] A forfeiture order in terms of the POCA is made against the property itself in
circumstances in which the property was either the proceeds of unlawful activities or
was used as an instrument in the commission of an offence or both.

[41] A forfeiture order is not made against the owner of the property or a person
who has an interest in the property.

[42] In terms of section 52 of the POCA the Court may, on application, and when it
makes a forfeiture order, make an order excluding certain interests therefrom, if it
finds on a balance of probabilities that the applicant:

a. had acquired the interest concerned legally; and
b. neither knew n or had reasonable grounds to suspect that the property
in which the interest is held was an instrumentality of an offence referred to in
Schedule 1 or was the proceeds of unlawful activities.

Realisation Orders

[43] A realisation order is a consequential step following on a confiscation order
and sometimes a restraint order.

12

[44] A confiscation order is a money order granted against a defendant.

[45] The amount of the confiscation order is determined by the court after having
considered the amount of benefit derived by the defendant from the relevant criminal
activities, subject to the value of the realisable property of the defendant.

[46] In this regard, section 18(2) of the POCA , which deals with confiscation
orders, provides as follows:

“(2) The amount which a court may order the defendant to pay to the State
under subsection (1) –
(a) shall not exceed the value of the defendant’s proceeds of the offences or
related criminal activities referred to in that subsection, as determined by the
court in accordance with the provisions of this Chapter; or
(b) if the court is satisfied that the amount which might be realised as
contemplated in section 20(1) is less than the value referred to in paragraph
(a), shall, not exceed the amount which in the opinion of the court might be so
realised.”

[47] As noted above, realisable property need not be the proceeds of crime, nor
instrumental in the commission thereof.

[48] Once granted, a confiscation order has the effect of a civil judgment. Thus
section 23 of the POCA provides as follows:

“Effect of confiscation orders
23(1) A confiscation order made –
(a) by a magistrate’s court, other than a regional court, shall have the
effect of a civil judgment of that court;
(b) by a regional court shall have the effect of a civil judgment of the
magistrate’s court of the district in which the relevant trial took place.
(2) Where a High Court makes a confiscation order –
(a) the confiscation order shall have the effect of a civil judgment of that
court.”

13


[49] It is important to emphasise that the grant of a confiscation order does not
mean that the realisable property itself is being confiscated.

[50] To satisfy a confiscation order a defendant is at liberty to utilise any legitimate
means to pay the amount ordered by the court. It is only in circumstances where a
defendant fails or is unable to pay the ordered amount that an application for
realisation may be brought in terms of sections 30 and 31 of the POCA.

[51] In summary then, unlike a forfeiture order which attaches to the property itself
and not to any person, a confiscation order is a money order against an individual
which has the effect of a civil judgment. If an individual against whom a confiscation
order is made is married in community of property, then the patrimonial
consequences of that marital regime apply.

[52] As the Applicant pointed out in its supplementary submissions, this issue was
dealt with by the High Court in the restraint application which preceded this once.
There, the Court held as follows:

“Spouses married in community of property become co- debtors in respect of
debts incurred by each prior to the marriage and are co- debtors in respect of
debts incurred during the marriage. Such debts are payable from the joint
estate and may be enforced through litigation proceedings against the spouse
who incurred common liability or both spouses jointly.”
8

“Although the confiscation order was granted against the defendant only, the
liability to satisfy the order is not that of the defendant separately from the
respondent. The defendant and the respondent are co- debtors and the order
stands against the joint estate.”
9

[53] This is undoubtedly correct, and the same logic must apply in respect of
realisation application s under the POCA. It follows , in my view, that the present

8 At para 9 of the Judgment.
9 At para 11 of the Judgment.

14

realisation order stands to be granted against the joint estate of the defendant and
the respondent and that there is no scope for the application of section 52 of the
POCA which applies to forfeiture orders only.

[54] Despite my invitation to do so, t he parties did not deal in their supplementary
submissions with the legal and constitutional implications for the rights of the
defendant and/or the respondent of granting a realisation order in the present
context.

[55] There is, in my view, an issue that must be addressed in this context and that
is the impact of the realisation order on the defendant and the respondent in relation
to the immovable property that they jointly own.

[56] As I have noted above, a confiscation order is a money order which has the
effect of a civil judgment. A realisation order, then, permits property to be sold in
execution to satisfy that order. It can be understood as effectively granting leave to
execute because it authorises enforcement of a confiscation order by converting
assets into monetary value.

[57] In my view, when immovable property that is a primary residence is the
subject of a realisation order, leave to execute against that property is subject to it
being declared specially executable. Section 26(1) of the Constitution of the Republic
of South Africa, 1996 guarantees the right to have access to adequate housing. Any
measure that may result in the loss of a primary residence requires judicial scrutiny
to ensure that the process is fair and does not disproportionately affect this
fundamental right. Our courts, in cases such as Jaftha v Schoeman; Van Rooyen v
Stoltz 2005 (2) SA 140 (CC) and subsequent decisions,
10 have emphasized that
judicial oversight is mandatory when immovable property, particularly a primary
residence, is at risk of being sold in execution. In my view, the POCA must be read
subject to these constitutional principles and protections.

subject to these constitutional principles and protections.

[58] The Applicant did not ask for an order that the immovable property be

10 See also Gundwana v Steko Development CC 2011 (3) SA 608 (CC).

15

declared specially executable. Accordingly, while there is some information before
me, including, importantly, the fact that a minor child resides in the residence, certain
of the key considerations that must necessarily be canvassed in applications to
declare a primary residence specially executable have not been addressed by the
parties. These include inter alia:

a. whether the defendant and the respondent are able to find alternative
accommodation before the property is realised; and
b. whether there are less invasive means of satisfying the confiscation
order such as a payment arrangement, perhaps with the respondent, who as I
have noted above is a co-debtor.

[59] This is not intended to be an exhaustive list of matters that would ordinarily
have to be dealt with. It is common cause that the immovable property that is
referred to in my order is the primary residence of the defendant and the respondent.
During argument, t he Applicant submitted that it would be amenable to an order
granting the defendant and the respondent reasonable time to seek alternative
accommodation before the property is realised. While this is appreciated, I am of the
view that this is not sufficient to ensure compliance with the constitutional protections
demanded by section 26 of the Constitution.

[60] In my view, this can only be done if a proper application to declare the
immovable property specially executable is made. I intend to make provision for this
in my order.

[61] In the circumstances, I make the following order:

Order

1. The application for the variation of the confiscation order made by the
Regional Court is dismissed, with costs.
2. The application in terms of sections 30 and 31 of the Prevention of
Organised Crime Act 121 of 1998, as amended (“the POCA”) is granted, with
costs, subject to the conditions set out below.

16

3. The endorsement on the title deed of the immovable property is
uplifted.
4. The need for a curator bonis to be appointed is dispensed with.
5. Ms Telani Shabangu ( “Shabangu”) of Rihlazana Auctions or her
delegated representative or any authorised official of Rihlazana Auctions is
authorised to assume control of the following property into her custody:
a. A silver Toyota Fortuna 4.0 V6 A/T vehicle with registration number
Y[…], 2009 model, chassis number A[…] and engine number 1[…], registered
in the name of the defendant as both the owner and titleholder;
b. Household contents of value, jewellery , valuables, any other realisable
property of the defendant or property in which the defendant has an interest.
6. The defendant and respondent and any other person who holds such
realisable property listed above are directed to surrender the said property
into the custody of Shabangu or her delegated representative or any
authorised official of Rihlazana Auctions.
7. Shabangu or her delegated representative or any authorised official of
Rihlazana Auctions is authorised and directed to:
a. realise the property in such manner as will, in her discretion, yield the
highest market-related returns in the most cost-effective way;
b. deduct from the amount realised, any expenses incurred in the
realisation of the property and her reasonable fees as agreed between
Shabangu and/or Rihlazana Auctions and the Applicant;
c. thereafter, pay the amount realised into the Criminal Assets Recovery
Account ( “CARA”) number 803033056 held at the South African Reserve
Bank with branch code 900145, established in terms of section 63 of the
POCA, with reference "Alkpehae P – JAFU 242/2015," in satisfaction of the
confiscation order made against the defendant on 16 July 2019 by Magistrate
Twele, sitting at the Johannesburg Regional Court (“the confiscation order”);
d. perform any ancillary acts which, in the opinion of Shabangu or her

d. perform any ancillary acts which, in the opinion of Shabangu or her
delegated representative or authorised official of Rihlazana Auctions, subject
to the direction by the Applicant, are necessary;
e. in the event of sums of money remaining from the realised amount
after deduction of expenses incurred, auctioneer fees and payment into CARA
as directed above, return such excess amount to the defendant and the

17

respondent in the manner in which the defendant and the respondent will
direct;
f. inform the relevant parties in writing by email or registered post or by
delivering a letter to them personally of the value of sums of money that
remained in her hands after the amount payable in terms of the confiscation
order has been fully paid.
8. Shabangu or her delegated representative or authorised official of
Rihlazana Auctions shall, as soon as possible but no later than a period of
within 30 days after payment of the realised amount into CARA , file a report
with the Applicant and this court, indicating the manner in which:
a. she conducted the administration and realisation of the assets
mentioned above;
b. the manner in which she complied with the terms of this order; and
c. whether the confiscation order has been satisfied and if not, what the
shortfall is.
9. Shabangu or her delegated representative or any authorised official of
Rihlazana Auctions shall as soon as possible provide a copy of the
confiscation order and proof of all payments in satisfaction of the order to the
clerk of the Johannesburg Magistrate’s Court.
10. In the event of the confiscation order not being satisfied, the Applicant
may, within 20 days of filing of the report referred to in paragraph 8 above,
apply to the High Court for an order declaring the following immovable
property specially executable with a view to satisfying the balance of the
amount owing in terms of the confiscation order: Erf 5 […], Alberton, with the
physical address Number 1[ …], B[…]Street, S[…], A[…], Gauteng, registered
in the names of the respondent and the defendant, each holding a 50% share.
11. Should such an application not be made or should it be made but be
refused, the defendant may apply to the High Court for the variation of the
confiscation order in terms of section 34 of the POCA.

H BARNES
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG

18

Heard: 12 February 2024

Supplementary submissions received: 17 September 2024

Judgment: 19 December 2024

Appearances:

Applicant:

Adv M Mbatha

Instructed by the State Attorney, Johannesburg

Defendant and Respondent:

Adv M Witz

Instructed by Witz Incorporated