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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 6227/2020
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 15 September 2025
SIGNATURE:
In the matter between:
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT
-and-
KGANTSHI DAVID MALEPA 1ST RESPONDENT
PAULINA MMAPULE MALEPA 2ND RESPONDENT
Delivered : 15 September 2025
This judgment was handed down electronically by circulati on to
the parties’ legal representatives by e -mail. The date and time
for hand down of the judgment is deemed to be 15 September
2025 at 10:00 am.
Date heard : 5 June 2025
Coram : Bresler AJ
JUDGMENT
BRESLER AJ:
Introduction:
[1] The applicant applies for the forfeiture of a red Mercedes Benz GLE 350d
Coupe motor vehicle (the ‘Vehicle’) in terms of Section 48, read with Section 50 of
the Prevention of Organised Crime Act, Act 121 of 1998 (hereinafter ‘POCA’).
[2] On the 30 th of September 2020, the Applicant obtained a Preservation Order
in terms of Section 38 of POCA in respect of the Vehicle on an ex parte basis. On
the same day a Notice in terms of Section 39(1)(b) of POCA was also issued.
[3] The Preservation Application and Or der, as well as the Notice in terms of
Section 39(1)(b) was served on the First Respondent on 6 October 2020. The
Forfeiture Application was due within 90 (ninety) days from date of publication in the
Government Gazette being 16 October 2020. The Forfeitur e Application was only
served on the 18 th of February 2021 and after the lapse of the Preservation order,
resulting in the Forfeiture Application being moot. The applications were nonetheless
opposed by the Respondents and detailed opposing affidavits were delivered.
[4] On the 6 th of July 2021, a Second Preservation order was granted. The
Second Order and Application was served on the First and Second Respondent on
the 21st of July 2021. The Second Order was published in the Government Gazette
on the 20th of August 2021. A second Forfeiture Application was consequently issued,
relying on the Second Preservation Order. The Second Forfeiture Application is
likewise opposed by the Respondents.
[5] On the 24 th of February 2022, a Forfeiture Order was granted by default
against the Respondents purportedly in reliance to the First Forfeiture Application.
This order was rescinded on the 12th of January 2023.
[6] On the 17th of January 2023, the Applicant delivered a Replying affidavit to
the Second Forfeiture Application.
[7] It is evident that this matter has quite a procedural background. In this Court’s
view, the Second Forfeiture Application stands to be determined as the First
Forfeiture Application was rendered moot by being delivered outside of the 90
(ninety) day period stipulated herein before. The Applicant was aware of the full
extent of the Respondents’ opposition at the time when the Second Preservation
order was obtained and the Second Forfeiture Application was launched.
[8] In justification of the relief prayed for by the Applicant, the following is stated:
8.1 The Vehicle is the proceeds of unlawful activities namely corruption
and extortion. It is common cause that the vehicle is registered in the name of
the Second Respondent.
8.2 The vehicle was purchased from Mercurius Motors with funds obtained
from Lesiba Mokhonoana of Lesibasiba Projects and Elvis Mohuba of Tomele
Business Enterprise.
8.3 Both Lesibasiba Projects and Tomele Business Enterprise were
service providers at Mokgala kwena Municipality during the period 2016 –
2017. During the same period the First Respondent was employed at
Mokgalakwena Municipality as Deputy Manager, Technical Services.
8.4 The Respondents claim that the said amounts were due and payable to
Katlego Internet Convenient Stores (Pty) Ltd and Unlimited Liquor Restaurant
of whom the Second Respondent is the lawful owner.
8.5 Upon investigation of these allegations, the Applicant ascertained from
the employees of Lesibasiba Projects that no training was conducted involving
the Respondents or their related entities. The Applicant furthermore
ascertained from Mr Elvis Mohuba, the owner of Tomele Business Enterprise
that likewise, no agreement was concluded between Tomele Business
Enterprise and the First and / or Second Respondent and / or their related
entities. Neither Lesibasiba Projects nor Tomele Business Enterprise were in
possession of any invoices rendered for these alleged goods and / or services.
8.5 The Respondents have since been charged with th e offences they are
alleged to be involved in.
[9] In opposition to the proceedings, the Respondents submitted the following:
9.1 The Vehicle is not an instrumentality of an offence referred to in
Schedule 1 of the POCA, nor is the Vehicle the proceeds o f unlawful activities.
9.2 The Vehicle was obtained through a bona fide and lawful purchase and
sale transaction between the Second Respondent and Mercurius Motors on or
about the 28th of July 2017.
9.3 The withdrawal of the proceedings under case number : 6227/2020
brings the litigation under the said case number to an end. There is not
remaining lis between the parties. As this application was withdrawn, no
reliance can be placed on any evidence led in those proceedings.
9.4 The Vehicle was paid with mo nies due, owing and payable to the First
and / or Second Respondent as a result of loan accounts held in Katlego
Internet Convenient Stores (Pty) Ltd and / or Unlimited Liquor Restaurant,
alternative monies accruing to them from Lesibasiba Projects and Tom ele
Business Enterprise.
9.5 The Vehicle was not obtained as a gratuitous benefit or as proceeds of
crime, nor was the Vehicle utilised in the commission of a crime.
9.6 Floyd Nakeng at all material times represented to the First Respondent
that he is a representative of Tomele Business Enterprise and he signed a
Memorandum of Agreement on behalf of Tomele Business Enterprise in terms
whereof Unlimited Liquor Restaurant was to provide conference services to
the sum of R801,000.00.
9.7 Lesiba Mokhonwana signed a Memorandum of Agreement on behalf of
Lesibasiba Projects in respect of the provision of specialised building and
construction material including training of workers and personnel with Katlego
Internet Convenient Stores (Pty) Ltd to the value of R1,200,000.00.
Issues that require determination:
[10] This Court is only called upon to determine if the Vehicle should be forfeited in
accordance with POCA.
The Applicable Legal Principles:
Was the Applicant prohibited from issuing a second Preservation application
and subsequent Forfeiture Application?
[11] Before dealing with the merits of the matter, this Court finds it apposite to
determine if the Applicant was, procedurally, entitled to proceed with the Second
Preservation and Forfeiture Application.
[12] S 40 of POCA provides:
‘Duration of preservation of property orders
A preservation of property order 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;
(b) there is an unsatisfied forfeiture order in force in relation to the property
subject to the preservation of property order; or
(c) the order is rescinded before the expiry of that period.”
[13] The first order was published in the Government Gazette on 26 July 2013.
None of the exceptions contained in s 40 (a), (b) or (c) applied and the order
therefore expired on 24 October 2013.
[14] The following was stated in National Director of Public Prosecutions v
Camel Rock Social Housing Institution and Others:1
‘[10] There is no express provision in POCA which prevents the granting of
further preservation orders where an earlier one has expired. Mr. Cole
submitted that s 40 of POCA was enacted to protect respondents in
preservation applications, and that the word “expire” should be interpreted
leniently, in other words once the order expires, no further order can be
granted.
[11] I do not agree. Such an interpretation would negate the important social
purpose of POCA and in theory render those entrusted with its
implementation powerless to prevent, for example, the dissipation of proceeds
of unlawful activities. The present case concerns vast public funds provided
for the benefit of low and middle income groups. The applicant has made out
1 2015 (1) SACR 546 (ECG)
a case for the present ord er and the reason for the expiry of the first order
was fully and satisfactorily explained.’
[15] And further:
‘[13] It follows that I am of the view that s 40 of POCA does not prohibit a
further application for a preservation order where a previous orde r in respect
of the same property has expired.’
[16] This Court agrees with the submissions made in the aforesaid case. If the
purpose of POCA can be defied simply because of an administrative oversight, it
would lead to catastrophic results. The oppositi on of the Respondents on this basis
should therefore fail.
[17] In am further fortified in my view insofar as Section 58 of POCA states the
following:
‘The fact that a preservation of property order or a forfeiture order has been
made on the basis of an offence referred in Schedule 1 in which a specific
person has been involved does not prevent the making of another or other
preservation of property orders or forfeiture orders on the basis of the same
offence.’
[18] If further orders can be made on the s ame offence, I see no reason why a
further preservation order cannot be made if a previous order has expired. It follows
that a further forfeiture application on the same facts and against the same property
on the same offence, in the event of the first ap plication being dismissed on the
merits, will however in all probability be subject to res iudicata. This is however not
the current issue before court and therefore need not be determined.
[19] The Respondents’ objection along these lines must therefore fail.
Notice of Withdrawal:
[20] In this Court’s view, to determine the procedural consequences of the Notice
of Withdrawal, one must take a holistic view of the exchange of pleadings and
documents to date. The Notice of Withdrawal was delivered simultan eously with the
current Forfeiture Application. By no stretch of imagination could it mean that the
Application is simultaneously issued and withdrawn.
[21] The Court is therefore in agreement with the Applicants that, at the time of the
Notice of Withdra wal, the First Preservation Order, which was the precursor of the
First Forfeiture Application, had lapsed. The order having lapsed, there could be no
Forfeiture Application.
[22] The objection against the continuance of the matter on the premise that sam e
was finally withdrawn, can thus not succeed.
Preservation and Forfeiture Applications in general:
[23] What remains to be determined is if the Applicant has shown, on a balance of
probabilities, that the Vehicle is the proceeds of unlawful activities. Section 38 of
POCA provides that the High Court shall make an order
‘if there are reasonable grounds to believe that the property concerned –
(a) Is an instrumentality of an offence referred to in Schedule 1; or
(b) Is the proceeds of unlawful activities.’
[24] As pointed out by the Constitutional Court in National Director of Public
Prosecutions v Mohamed N O and Others2 :
‘Section 38 forms part of a complex, two stage procedure, whereby property
which is the instrumentality of a criminal offence or the proceeds of unlawful
activities is forfeited". In contrast to chap ter 5 of the Act, which deals with
2 2002 (4) SA 843 (CC) at 85 par [17]
confiscation of property following upon a conviction, "the guilt or wrongdoing
of the owners or possessors of property is, therefore, not primarily relevant to
the proceedings”.’
[25] Both parties were ad idem that in pr ocedures of this nature, the established
rules of resolving factual disputes in motion proceedings will apply. This Court is
therefore obliged to apply the well-known Plascon-Evans rule.
[26] Counsel for the Applicant correctly stated in his Heads of Argu ment that the
effect of the Plascon-Evans rule is that the Court must determine if a case has been
made out on a balance of probabilities having regard to the facts as stated in the
Applicant’s affidavits which was admitted by the Respondents, together with the facts
alleged by the Respondents. Regard must also be had to allegations that cannot
reasonably be disputed.
[27] Having regard to the evidence led by both parties, this Court is in the dark as
to the exact nature and extent of the services allegedl y provided to the juristic
entities in which the Respondents purportedly holds an interest. This Court is also
not privy to the full extent of the relationship between the Respondents and the
related entities. This is information that should be wholly with in the knowledge of the
Respondents and should have been fully disclosed to the Court.
[28] One would assume that, in an application of this nature, at the very least a full
disclosure would have been made as to entitlement to appropriate business funds ( if
the Respondents’ version is to be accepted) to the acquisition of property in their
personal capacities although the alleged agreements were concluded in the related
entities.
[29] The evident lack of knowledge of the respective service providers pert aining
to these alleged arrangements, also casts serious doubt on the Respondents’
version.
[30] Having a holistic view of the evidence presented by the respective parties, this
court is satisfied that the Applicants were able to show, on a balance of probabilities,
that they are entitled to the relief prayed for.
Costs:
[31] The Applicant has issue d a previous preservation application as well as a
previous Forfeiture Application. Due to an administrative oversight, they could not
continue with these proceedings, rendering the said proceedings moot.
[32] In this Court’s view, had those proceedings c ontinued, the Applicant would, in
any event, be successful on the merits thereof. It is trite law that once proceedings
are rendered moot by subsequent circumstances, the Court must still determine if
those proceedings would have been successful to determi ne the appropriate cost
order. It cannot be ignored however that the duplication of the proceedings was
brought about because of the first preservation order lapsing prior to the issuing of
the first forfeiture application. This oversight must be laid at the door of the Applicant.
On this basis the, the Applicant should be deprived of the costs of the first
preservation application and the first forfeiture order. A more just and reasonable
order would be that each party is to pay its own costs pertaining to the previous
proceedings.
Order:
[33] In the result the following order is made:
33.1 An order is granted in terms of the provisions of the Prevention of
Organised Crime Act 121 of 1998 (the POCA) declaring forfeit to the
state a Hyacinth red Mercedes Benz GLE 350d Coupe motor vehicle with
registration number DTG473L, chassis number W[...] and engine number
6[...] (described as a white Mercedes Benz GLE 350d Coupe on Enatis)
(the property), which property is presently subject to the p reservation of
the property order granted by the Honourable Court under the same
case number on 6 July 2021.
33.2 In terms of Section 56(2) of POCA, the property shall vest in the
state upon granting of this order.
33.3 Subject to paragraph 33.4 below, t he property shall remain in
South Africa Police Services at Seshego SAP13 Pound.
33.4 Upon expiration of a 45 -day period after notice of this order is
published in the Government Gazette, Hlamarisa Simon Rikhotso, a
Financial Investigator in the employ of the Applicant is authorised to:
33.4.1 assume control of the property on behalf of the Applicant,
which property must, subject to paragraph 33.4.2 below, remain in
the South African Police Services at Seshego SAP13 Pound;
33.4.2 sell the motor vehicle at best, either by public auction or
private treaty;
33.4.3 sign all documentation necessary to affect the sale, transfer
and registration of the motor vehicle; and
33.4.4 deposit the proceeds of the sale into the Criminal Asset
Recovery Account established under section 63 of POCA,
Account number 8[...] held at the South African Reserve Bank,
Vermeulen Street, Pretoria (CARA).
33.5 Hlamarisa Simon Rikhotso shall as soon as possible, but not later
than within a period of 90 (ninety) days of this order coming into effect,
file a report with the Applicant indicati ng the matter in which she
complied with the terms of this order.
33.6 Any person whose interest in the property concerned in affected
by the forfeiture order, may within 20 (twenty) days after he or she has
acquired knowledge of such order, set the matte r down for variation or
rescission by the Court.
33.7 The First and Second Respondent, jointly and severally, the one
paying the other to be absolved is ordered to pay the costs of the
Applicant on party and party scale, inclusive of the costs to counsel on
Scale A.
33.8 The aforesaid costs shall exclude the costs pertaining to the First
Preservation application (dated 30 September 2020) and the First
Forfeiture Application (dated 14 January 2021).
M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPLICANTS : Mr. K Moabelo
INSTRUCTED BY : State Attorney Polokwane
FOR THE FIRST AND : Adv. JHF le Roux
SECOND RESPONDENTS
INSTRUCTED BY : Herman Potgieter Attorneys
Mokopane
lpp@potprok.co.za
etienne@potprok.co.za
jhleroux@clubadvocates.co.za