SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 488/2024
In the matter between:
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS APPELLANT
and
SITHEMBISO ADOLPHUS GCABA RESPONDENT
Neutral citation: The National Director of Public Prosecutions v Gcaba (488/2024)
[2026] ZASCA 04 (14 January 2026)
Coram: MAKGOKA and COPPIN JJA and DAWOOD, PHATSHOANE
and HENNEY AJJA
Heard: 26 May 2025
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the judgment is
deemed to be 14 January 2026 at 11h00.
2
Summary: Prevention of Organised Crime Act 121 of 1998 (POCA) – application in
terms of s 48 for forfeiture of property held under a preservation order obtained under
s 38 – whether ‘pending’ in s 40(a) requires that the application for forfeiture of property
to be issued and served within 90 days of publication of preservation order.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: KwaZulu-Natal Division of the High Court, Durban (Kruger J, sitting
as court of first instance):
1 The appeal is upheld.
2 The order of the high court dated 27 October 2023, dismissing the application for
a forfeiture order, is set aside and replaced with the following:
‘1. An order is granted in terms of s 50(1) of the Prevention of Organised Crime
Act 121 of 1998 (POCA) declaring forfeit to the State R46 120 (the property)
held under the reference: SAP13/886/2021 via Durban Central CAS
257/03/2021 at the Durban Central Police Station.
2. After the forfeiture order referred to in paragraph 1 takes effect, the Station
Commander, Durban Central Police Station, is directed to forthwith deposit
the property into the banking account described below:
2.1 Name of Account: Criminal Asset Recovery Account
2.2 Name of Bank: The Reserve Bank of South Africa
2.3 Account number: 8[...]
2.4 Deposit reference number: 1[...]
3. In terms of s 50(5) of POCA, the State Attorney, Durban is directed to
forthwith publish a notice of this Order in the Government Gazette.
4. The Applicant is directed to deliver a copy of this order by hand, or through
email to:
4.1 The Station Commander, Durban Central Police Station, SAPS
3
and
4.2 The SAP13 Exhibit Clerk, Durban Central Police Station.
5. The Applicant is directed to forthwith serve a copy of this judgment on the
Respondent, Sithembiso Adolphus Gcaba, within 20 days of this order.
6. Any person whose interest in the property concerned is affected by the
forfeiture order, may within 20 days after they have acquired knowledge of
such order, in terms of the relevant provisions of POCA, apply for the order
to be varied or rescinded by the high court.
7. Any person affected by the forfeiture order, who was entitled to receive
notice of the forfeiture application under s 48(2) of POCA but who did not
receive such notice, may within 45 days after the publication of the notice
of the forfeiture order in the Government Gazette, apply to the high court for
an order under s 54 of POCA, to exclude his , her or its interest in the
property, or to be part of the operation of the order in respect of the property
8. In terms of s 50(6) of POCA, this forfeiture order shall not take effect before
the period allowed for an application under s 54 of POCA, or an appeal
under s 55 of POCA has expired , or before such application or appeal is
disposed of.’
JUDGMENT
Henney AJA (Coppin JA and Phatshoane AJA concurring):
Introduction
[1] This is an appeal by the National Director of Public Prosecutions (the NDPP)
against an order of the KwaZulu-Natal Division of the High Court, Durban (the high
court), in which its application in terms of s 48 of the Prevention of Organised Crime
Act, 121 of 1998 (POCA), for the forfeiture of property (the application), was dismissed.
The application, as well as this appeal were not opposed by the respondent, Mr
Sithembiso Adolphus Gcaba (Mr Gcaba). The appeal is with the leave of the high court.
4
[2] Mr Gcaba was arrested for allegedly being in unlawful possession of R46 120
(the property). This amount was held by the State under a preservation order obtained
by the NDPP and granted ex parte by the high court in terms of s 38 of POCA on 28
September 2022. In terms of s 40(a) of POCA: ‘[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.’
(My emphasis). By the time the 90 days expired in this matter the application was only
issued but had not been served. The question that arises is whether the application
was ‘pending’ before the high court as contemplated in that section before expiry of
the 90 days. At the heart of this case is, therefore, the meaning of the word ‘pending’
in s 40(a) of POCA.
[3] Given the debate and the difference in interpretation of the word ‘pending’ in
this judgment and the second judgment as will become obvious later, the provisions of
POCA that deal with the preservation and forfeiture procedures are not models of
clarity. This judgment seeks to assign a meaning to the word ‘pending’ in s 40, it does
not seek to resolve anomalies that may arise from that provision.
Factual background
[4] On the evening of 6 March 2021 members of the South African Police Services
observed Mr Gcaba engaged in suspicious and unlawful activity at a petrol service
station’s automatic teller machine (ATM). He had a total number of 69 orange Social
Security Agency ( SASSA) cards in his possession and carried a black bag, which
contained additional SASSA cards and R 7 640 cash.
[5] Mr Gcaba gave an unsatisfactory explanation to the police regarding the cards
and money. He was arrested. A further R39 800 was found in his car. The total amount
and money. He was arrested. A further R39 800 was found in his car. The total amount
of cash recovered was thus R46 120. It was established that these cards had been
dispatched from Bloemfontein to various SASSA offices in KwaZulu-Natal and that an
amount of R118 000 was withdrawn from ATMs in the eThekwini region over a five-
hour period with 62 of the cards that were found in the possession of Mr Gcaba.
5
[6] Following the seizure of the property the NDPP applied for a preservation order,
which the high court granted on 28 September 2022. The high court in terms of s 39(1)
of POCA ordered the NDPP to publish a notice of the preservation order in the
Government Gazette (the Gazette); serve its copy together with the preservation
application on Mr Gcaba through the office of the sheriff of the high court; serve a copy
of the order on any other person who becomes known to the NDPP as having an
interest in the property; and that any person who has an interest in the property and
who intends to oppose the granting of a forfeiture order, must enter an appearance to
oppose and give notice of such an intention in terms of s 39(3) of POCA.
[7] The preservation order was published in the Gazette on 14 October 2022. On
11 January 2023, while the preservation order was still in force, the NDPP, for the first
time, launched the present application for the granting of a forfeiture order in terms of
s 48 of POCA which was set down for hearing on 20 April 2023. The application was
removed from the roll and reinstated on several occasions between the period of 20
April 2023 and 14 August 2023, by which date the service of the preservation order
and the application had not been effected on Mr Gcaba. Only on 17 August 2023 after
cooperation between the State Attorney and the investigating officer, the preservation
order and the forfeiture application were served on Mr Gcaba personally at the
Regional Court for the Regional Division of KwaZulu -Natal, Durban. Mr Gcaba was
appearing in the criminal matter related to this application and was also advised about
the court date.1 This was after numerous unsuccessful attempts by the State Attorney
to get the sheriff to serve the preservation application order as well as the forfeiture
order on Mr Gcaba at his given address.
[8] On 27 October 2023, the application was heard in the high court and dismissed
[8] On 27 October 2023, the application was heard in the high court and dismissed
on the basis that , in terms of s 40(a) of POCA, the preservation order had expired
because ‘…the application [for a forfeiture order] was served on [Mr Gcaba ] way
beyond the expiration of the 90-day period. The preservation order had therefore
lapsed’. In terms of s 48(1) of POCA the NDPP may only apply for a forfeiture order in
respect of property while the preservation order in respect of that property is still in
force.
1 See paragraphs 6-8 of the affidavit of Kenneth Mark Samuel filed in support of the application for
condonation.
6
The NDPP’s submissions
[9] POCA does not prescribe or stipulate a specific time limit for the service of a
preservation order on a respondent. It merely requires, in terms of s 39 (1) and (2),
service of the preservation order, ‘as soon as practicable after the making of the order’,
in the manner in which a summons , whereby civil proceedings in the high court are
commenced, is served . Furthermore, POCA does not expressly provide that a
preservation order would expire in the event that it is not served within 90 days from
the date of the grant thereof. The 90 days commence after the date of the publication
of the notice of the making of the preservation order in the Gazette (s 40). Section
(40)(a) provides for the expiration of the preservation order at the end of the 90 days,
unless an application for the forfeiture order is pending before a high court by such
date.
[10] The obvious purpose of a preservation order is to ensure that the property is
preserved until the grant or refusal of a forfeiture order. It is unclear why the failure to
serve or a delay in the service of a forfeiture order within the 90day period prescribed
by s 40(a) of POCA, would impinge on any of Mr Gcaba’s rights in an unacceptable
manner. This is so because in the absence of service, the preservation order may not
be confirmed, and the forfeitur e may not be granted. This can only happen when the
preservation order and a forfeiture order application are served in the same manner in
which a summons in civil proceedings in the high court are commenced.
[11] It is a frequent occurrence in litigation that the service of papers is sometimes
delayed. The reasons for the delay in this matter do not appear from the record and
there is nothing in the record to indicate that the delay in service was deliberate. In an
affidavit filed in support of the condonation application in this Court, Mr Kenneth Mark
Samuel, a Deput y Director of Public Prosecutions with personal knowledge of the
Samuel, a Deput y Director of Public Prosecutions with personal knowledge of the
facts, explains that there were efforts to serve the relevant documents pers onally at
Mr Gcaba’s place of residence, but the delays were essenti ally due to lack of
coordination. It is only after the staff of his office, the State Attorney and the
investigating officer coordinated their efforts, that the sheriff managed to serve the
preservation application , its order and the forfeiture application personally on Mr
Gcaba on 17 August 2023. Accordingly, the NDPP submitted, that Mr Gcaba had been
7
served and his entitlement to resist the confirmation of the preservation order and the
grant of the forfeiture order remain ed unaffected. The fact that Mr Gcaba elected not
to contest those processes, was entirely his prerogative.
[12] There is no ambiguity in the word ‘pending’ as contemplated by s 40 (a) of
POCA. Additionally, t here is no absurdity which results from interpreting the word
‘pending’ as meaning that the papers in the forfeiture application have been issued
and that the application has accordingly commenced or launched and awaiting a final
decision as contemplated in Malebane v Dykema.2
[13] Chapter 6 proceedings under POCA are proceedings in rem because their
focus is on property that is used to commit an offence, or which constitutes the
proceeds of unlawful activit y. In advancing this argument the NDPP rely on National
Director of Public Prosecutions and Another v Mohamed N O and Others,3 which held
that ‘Chapter 6 is therefore focused, not on wrongdoers, but on property that has been
used to commit an offence, or which constitutes the proceeds of crime’. The NDPP
also relies on MV Jute Express v Owners of the Cargo Lately Laden on Board the MV
Jute Express4 where this Court dealt with an action in rem and held ‘…that in the case
of an action in rem the moment of commencement is deemed to be the issue of
process and, in case of an action in personam, the service of process.’ (Emphasis
added.)
[14] Based on these authorities, Chapter 6 of POCA encapsulates the preservation
and forfeiture provisions which are in rem, by parity of reasoning, the issue and not the
service of the application is required to avert the expiration of the preservation order.
This interpretation does not result in any absurdity. The NDPP submits that it is feasible
for an application for a forfeiture order in respect of property co-owned by two or more
persons to be considered ‘pending ’ where the papers in the preceding preservation
persons to be considered ‘pending ’ where the papers in the preceding preservation
application have been issued and the forfeiture application is served on only one of
the co -owners within the 90-day period but not on the others. Such an application
2 Malebane v Dykema [2018] ZASCA 174; [2019] 1 All SA 316 (SCA); 2018 JDR 2116 (SCA) paras
14-16.
3 National Director of Public Prosecutions and Another v Mohamed N O and Others 2002 (9) BCLR 970
(CC); 2002 (4) SA 843 (CC); 2002 (2) SACR 196 (CC) para 17.
4 MV Jute Express v Owners of the Cargo Lately Laden on Board the MV Jute Express 1992 (3) SA 9
(A) at 17A-C; [1992] 2 All SA 95 (A).
8
would be ‘pending’ against that co-owner but not on others. And that an interpretation
that service is required in such circumstances would result in absurdity.
[15] It is also feasible that a preservation order is not directed at a reasonably
identifiable respondent. In such circumstances, it is submitted, it may materialise that
upon the grant and publication of a preservation order no person delivers a notice in
terms of s 39(3) to oppose the grant thereof, nor an affidavit in terms of s 39(5) setting
out the requisite particulars and grounds of opposition. In such an instance they would
accordingly not be obliged to deliver a s 48 (3) notice to any person . In such
circumstances, according to the NDPP, the service requirement would be meaningless
and would serve as an impediment to the grant of a forfeiture order.
[16] If due regard is to be had to the text, context and purpose of the word ‘pending’
in s 40(a) of POCA and the ordinary grammatical sense thereof , the requirement of
service, ie, to render the forfeiture application ‘pending’, would clearly result in an
absurdity. Lastly, the high courts’ decisions, which held that service within 90 days is
a necessary requirement in order to preserve the validity of the preservation order ,
were clearly wrong and ought not to be endorsed by this Court.
Discussion
[17] Our jurisprudence on interpretation emphasises a contextual and purposive
approach. This Court in Natal Joint Municipal Pension Fund v Endumeni Municipality
(Endumeni) 5 said that interpretation requires a holistic consideration of the text,
context and purpose of legislation, with preference given to sensible, and businesslike
meanings, over rigid formalism.6
[18] The key issue for consideration is whether the high court was correct to
conclude, relying on Levy v National Director of Public Prosecutions (Levy)7 and in
National Director of Public Prosecutions v Moolla (Moolla),8 that the matter was not
National Director of Public Prosecutions v Moolla (Moolla),8 that the matter was not
‘pending’ because the preservation order had expired due to non -service of the
5 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) (Endumeni).
6 Endumeni para 18.
7 Levy v National Director of Public Prosecutions 2002 (1) SACR 162 (W) para 9.
8 National Director of Public Prosecutions v Moolla [2010] ZAGPJHC 56; 2010 (2) SACR 429 (GSJ)
(Moolla).
9
forfeiture application on Mr Gcaba within 90 days of the publication of the preservation
order. And whether the interpretation of the term ‘pending’ by the court in Levy, and
the other courts that relied on that interpretation, was correct. And, similarly, whether
the finding to the contrary in NDPP v Hilda van der Burg and Another (Van der Burg),9
was correct.
[19] This Court in Knoop NO and Others v National Director of Public Prosecutions
(Knoop),10 where it dealt with appealability of preservation orders , stated that ‘if the
NDPP does not institute that application (forfeiture) within a period of 90 days of
publication of the notice of the preservation order, the preservation order expires’. 11
This Court also stated that inherent in ch apter 6 of POCA is that forfeiture should
proceed without delay and it explains the 14 -day time limit for a person to enter an
appearance after notice of the preservation order, as well as the cutoff of 90 days for
the institution of a forfeiture application. It is however not apparent from this judgment
what is meant by the word ‘institution’ of a forfeiture application , could it have meant
only the issuance of the application and not service . It bears repeating that o n 11
January 2023, while the preservation order was still in force, that is within the
prescribed 90 days period, the NDPP launched the forfeiture application. In Knoop this
Court was not called to specifically deal with the meaning of ‘pending’ in s 40 as we
are enjoined to do.12
[20] The court in Levy concluded that whilst the interpretation of the word ‘pending’
is ambiguous, it can either mean that service of an application is required or not
required. It concluded that for the proceedings to be ‘pending’ and for the preservation
order not to be considered to have lapsed, not only the issue of the forfeiture
application but also service thereof was required within the period of 90 days. It held
application but also service thereof was required within the period of 90 days. It held
that it preferred that interpretation, because POCA is impactful on individuals’ rights.
[21] The court in Levy applied Mahlangu and Another v Van Eeden and Another
(Mahlangu)13 where Dodson J stated that he was of the view ‘…that when pending
9 NDPP v Hilda van der Burg and Another (5576/06) CPD (22 December 2008) (Van der Burg).
10 Knoop NO and Others v National Director of Public Prosecutions 2024 (1) SACR 121 (SCA).
11 Para 40.
12 Ibid para 42.
13 Mahlangu and Another v Van Eeden and Another (LCC53/99) [2000] ZALCC 17; [2000] 3 All SA 321
(LCC) (2 June 2000) para 27.
10
proceedings are referred to at common law, they are proceedings which have
commenced by the service and not mere issue of summons’. In Levy the court also
took into account a number of decisions14 dealing with the question when a matter is
considered to be ‘pending’ before a court, including what was said by Eloff J in Noah
v Union National South British Insurance Co Ltd (Noah)15, namely, that ‘. . . the word
‘‘pending’’ has different meanings in different contexts . . .’.16
[22] Mahlangu referred to the decision of the Constitutional Court in S v M hlungu
and Others (Mhlungu)17 where the Constituti onal Court, relying on the decisions of
Noah and Arab Monetary Fund v Hashim and Others (Arab Monetary Fund),18 stated
that ‘…[t]he term ‘‘pending’’ in relation to proceedings may have different connotations
according to its context’ 19. The Constitutional Court in Mhlungu further stated the
following with reference to what was said in Arab Monetary Fund:
‘As Hoffmann J said in the latter case at 558 (at 649j All ER), in the normal meaning of the
term proceedings “are pending if they have begun but not yet finished”. It is clear enough that
a ‘ ‘pending’’ proceeding is one not yet decided . … What is not so clear is when a legal
proceeding may be said to have begun.’20
[23] It seems that in several decisions of the different divisions, reliance was placed
on Levy as to what is considered to be the proper interpretation of the term ‘pending’21.
The Western Cape Division of the High Court, in Van der Burg,22 relied on Noah and
stated: ‘…s 40 of POCA merely requires that an application for a forfeiture order mu st be
“pending” within ninety days after the date on which notice of a preservation order is published
in the Government Gazette . That does not presuppose the service of the application , but
merely the issuing thereof. I accordingly find that there has been proper compliance with the
provisions of s 48(1 ) as read with s 40 of POCA’ . In National Director of Public
provisions of s 48(1 ) as read with s 40 of POCA’ . In National Director of Public
14 Noah v Union National South British Insurance Co Ltd 1979 (1) SA 330 (T) ( Noah); Bienenstein v
Bienenstein 1965 (4) SA 449 (T).
15 Noah ibid.
16 Levy para 7.
17 S v Mhlungu and Others 1995 (2) SACR 277(CC); 1995 (3) SA 867 (CC); 1995 BCLR 793 (CC)
18 Arab Monetary Fund v Hashim and Others [1992] 1 WLR 553 ([1992] 1 All ER 645 (Ch)).
19 Mhlungu para 51.
20 Mhlungu para 51.
21 Moolla; NDPP v Jansen van Vuuren 2010 JDR 1358 (GNP); NDPP v Landomax (Pty) Ltd and Others
(M194/2015) [2017] ZANWHC (4 May 2017); National Director of Public Prosecutions v Bacela and
Another (FB 09/2020) [2022] ZANWHC (28 October 2022); Quantoi v NDPP & Others ZAECDG
(657/2022) 20 August 2024.
22 Van der Burg para 26.
11
Prosecutions v Pule23 the high court relied on Van der Burg and concluded that where
the application for a forfeiture order was issued on a date that ‘preceded the lapse of
the 90-day period. That to me is the date on which the wheels of justice in the forfeiture
application could be said to have begun rolling. Service of the application took place
at later stage, beyond the lapse of the period of 90 days’. The court also did not state
why it preferred the interpretation followed in Van der Burg but simply stated tha t:
‘…The argument that the preservation order has become lapsed is not persuasive. I have no
doubt that the issuing of the application satisfied the provisions of section 40 of POCA in that,
by the date on which the preservation order would have lapsed, there was already a pending
application for forfeiture’.24
[24] In my view, t he interpretation followed by the court in Levy to conclude that a
forfeiture application is not ‘pending’, unless service thereof had been effected within
90 days from the date of the publication of a preservation order, did not follow a
purposive and contextual approach in the interpretation of the relevant provision of
POCA. Such an approach was also not followed in Van Der Burg, although the court
there came to a different conclusion. In Van Der Burg the court simply relied on Noah
for its conclusion, that on the mere issue of summons a matter becomes ‘pending’.
[25] The decisions seem not to have had sufficient regard for the purpose and
overall context of POCA, which is to combat organised crime, which includes the
recovery of the proceeds of unlawful activity; and the civil forfeiture of criminal property
that has been used to commit an offence or of property that constitutes the proceeds
of unlawful activity.
[26] In dealing with the interpretation of these provisions, and especially with the
term ‘pending’, the courts have stressed that the term ‘pending’ is dependent on the
term ‘pending’, the courts have stressed that the term ‘pending’ is dependent on the
context in which it is used. It may have a normal or extended meaning. In Noah25 the
court said that ‘interpretation of “pending” is therefore conditioned by the context in
which it [was] used’. This stance was confirmed by the Constitutional Court in Mhlungu
where it was stated that the term ‘pending’ in relation to proceedings may have
23 National Director of Public Prosecutions v Pule (M321/2023) [2024] ZANWHC 234 (16 September
2024) para 41.
24 Ibid para 42.
25 Noah at 332G.
12
different connotations according to its context. 26 The Constitutional Court also stated
that in the ordinary meaning of this term, the proceedings are ‘pending’ if they have
begun but not yet finished. In Arab Monetary Fund the court stated that ‘…There
seems no doubt that in modern English procedure a personal action is begun when
the writ is issued. It follows that as a matter of ordinary language; it must thereafter be
pending.’27
[27] The interpretation advanced by the NDPP is consistent with the statutory
framework and the overall purpose of POCA. It bears repeating that t he purpose, as
stated by the Constitutional Court in Mohamed,28 is this:
‘[14] … The law has also failed to keep pace with international measures aimed at dealing
effectively with organised crime, money laundering and criminal gang activities. Hence the
need for the measures embodied in the Act.
[15] It is common cause that conventional criminal penalties are inadequate as measures of
deterrence when organised crime leaders are able to retain the considerable gains derived
from organised crime, even on those occasions when they are brought to justice. The above
problems make a severe impact on the young South African democracy, where resources are
strained to meet urgent and extensive hu man needs. Various international instruments deal
with the problem of international crime in this regard, and it is now widely accepted in the
international community that criminals should be stripped of the proceeds of their crimes, the
purpose being to remove the incentive for crime, not to punish them. This approach has
similarly been adopted by our Legislature.
[16] The present Act (and particularly Chaps 5 and 6 thereof) represents the culmination of a
protracted process of law reform which has sought to give effect to South Africa’s international
obligation to ensure that criminals do not benefit from their crimes. The Act uses two
obligation to ensure that criminals do not benefit from their crimes. The Act uses two
mechanisms to ensure that property derived from crime or used in the commission of crime is
forfeited to the State. These mechanisms are set forth in Chap 5 (comprising ss 12 to 36) and
Chap 6 (comprising ss 37 to 62). Chapter 5 provides for the forfeiture of the benefits derived
from crime, but its confiscation machinery may only be invoked when the “defendant” is
convicted of an offence. Chapter 6 provides for forfeiture of the proceeds of, and
26 Mhlungu para 51.
27 Arab Monetary Fund at 558H.
28 National Director of Public Prosecutions and Another v Mohamed N O and Others 2002 (9) BCLR
970 (CC); 2002 (4) SA 843 (CC) paras 14-16.
13
instrumentalities used in crime but is not conviction-based; it may be invoked even when there
is no prosecution.’ (Footnotes omitted.)
[28] It is for these reasons that POCA makes use not only of conventional
procedures in terms of criminal and procedural law, to curb the scourge of organised
crime, but draws on the law in civil proceedings relating to service and the giving of
notice to persons in the Gazette, which is a rather extraordinary measure of informing
persons of what would happen to their property that was either prima facie found to
be the proceeds of crime or used in the commission of a criminal offence.
[29] The question whether the preservation order was served in terms of s 39(2) on
Mr Gcaba before the expiry of the 90 days, is not central to the inquiry whether the
forfeiture application was pending in terms of s 40 (a) of POCA . The fact that the
preservation order was only served after the 90-day period cannot in my view disqualify
the NDPP from seeking a forfeiture application, which is the second stage of a two -
stage process. The only question which needs to be considered is whether the
preservation order was still in force, and the forfeiture application was still ‘pending’.
[30] I am of the view that in order for a forfei ture application to be regarded as
‘pending’ for the purposes of s 40(a), it is not a requirement that there should be service
of that application within the period of 90 days. There are principally four reasons that
compellingly show that the word pending” in s 40(a) means ‘issue’ and not ‘issue and
serve’. Firstly, service is not a requirement because, as stated in Mohamed,29 the focus
of the proceedings is not on the alleged wrongdoers, but on the property that has been
used to commit an offence, or which constitutes the proceeds of crime, after it has
been shown, during the preservation proceedings, that reasonable grounds exist to
come to such a conclusion. It is for this reason also that s 50(3) states that the absence
come to such a conclusion. It is for this reason also that s 50(3) states that the absence
of a person whose interest in the property may be affected by a forfeiture order does
not prevent the high court from making the order. The guilt of the owners, possessors
or persons that may have an interest in the property is not relevant to the proceedings
and it does not affect the validity of the forfeiture proceedings in terms of s 50(4).
29 Mohamed para 17.
14
[31] In this regard it was stated in MV Jute Express that an action in rem commence
with the issue of summons, unlike an action in personam which commence with the
service of process. 30 Whilst that case was concerned with an Admiralty Jurisdiction
Regulation Act 105 of 1983 (AJRA), it is of equal application here where the focus is
not on the person, but on the property which the State seeks to declare forfeited. This
was confirmed by this Court in Knoop with reference to what the Constitutional Court
stated in Mohamed.31
[32] In my view, mere issue and not service of the application within the 90 days
would not unduly infringe upon an individual’s rights. The person’s property rights, if
any, are at best only limited, for the period of the duration of the preservation order,
after judicial sanction, at the time when the preservation order was granted. I therefore
disagree with the finding in Levy that the term ‘pending’ should be interpreted to include
the issue and service of a forfeiture application on account that ‘ . . .a statute makes
serious inroads on the rights of an individual . . . ’.32 There are sufficient safeguards in
POCA33 to prevent an abuse of process and to protect the rights of affected persons,
after the issue of the application, whilst the proceedings are pending and unduly
delayed, and the preservation order is still in force.
[33] Secondly, and more significantly, is that if the word ‘pending’ is assigned the
meaning ascribed to it in Levy it would imply that every forfeiture application would
have to be issued and served, within the 90 days even though there might be no one
to serve it upon, thereby undermining the other provisions of POCA. As already
discussed, it may occur that no one with an interest in the property is known to the
NDPP, or those with an interest in the property have not entered an appearance as
required in terms of ss 39(3), (4) and (5) of POCA, or are unwilling to participate in the
required in terms of ss 39(3), (4) and (5) of POCA, or are unwilling to participate in the
proceedings or may not wish to be associated with the property that was seized or is
under preservation.
30 MV Jute Express at 17A–C.
31 Paras 33 and 34.
32 Levy para 9.
33 See, inter alia, ss 47 and 49 regarding the rights of a person affected by a preservation order. See
also Knoop para 38.
15
[34] Thirdly, s 48(2) allows the NDPP to apply for a forfeiture order in respect of
property while a preservation order in respect of that property is in force. On a proper
construction of s 40, a preservation order is in force for a period of ‘90 days after the
date on which notice of the making of the [preservation] order is published in the
Gazette’. It might happen that while the issue of the forfeiture application in that time
is possible, for various reasons, service of that application may not be possible within
that period. Such a forfeiture application would be rendered futile if ‘pending’ means
‘issue and serve’ because the application would not be ‘pending’ and thus result in an
extension of the duration of the preservation order which is legally impermissible. That
is not a sensible outcome.
[35] The absurdity of such an outcome is further illustrated with reference to the
following realistic, albeit hypothetical , set of facts. The NDPP has published a
preservation order that it obtained in respect of certain property. It only manages,
despite reasonable effort to do so, to serve the notice of the preservation order as
contemplated in terms of s 39(1) of POCA shortly before the expiry of the 90 days
since publication of the preservation order. Because the NDPP wants to bring a
forfeiture application in respect of the property, it is forced to issue th at application
while the preservation order is still in force. Notice of the forfeiture application must be
given to everyone who entered an appearance in terms of s 39(3). Persons on whom
the preservation notice were served has 14 days to enter an appearance. The 14 days
only expire after the expiry of the 90 days. Service of the forfeiture order must only be
effected on those who enter such appearance, and it is only possible to know at the
end of the 14 days which persons must be served. Technically it means that the
forfeiture application cannot be launched because the preservation order ceased to be
forfeiture application cannot be launched because the preservation order ceased to be
in force on the 90th day, since it was not ‘pending’ during that period for lack of service.
There are other examples with the resultant anomalies.
[36] Fourthly, in MV Jute Express it was said that as matter of settled procedural
law, in all matters that:34 ‘this Court had long since held that all actions commence with
the issue of summons: Marine and Trade Insurance Co Ltd v Reddinger 1966 (2) SA
407(A) at 413D and Labuschagne v Labuschagne ; Labuschagne v Minister van
Justisie 1967 (2) SA 575(A) at 584 .There was therefore no need for the lawgiver to
34 MV Jute Express at 16 H-I.
16
say anything in s 3(5) about when action would commence. It was a matter of settled
procedural law.’ (Emphasis added.) In Seaspan Holdco 1 Ltd and Others v MS Mare
Tracer Schiffahrts and Another (Seaspan)35 this Court dealt with the provisions of the
Admiralty Jurisdiction Regulation Act 105 of 1983 ( ARJA) in a different context and
confirmed what was stated in MV Jute Express regarding the commencement of a n
action in rem. The upshot of what was stated in that case in the context of the ARJA
was that, MV Jute Express did not decide that an arrest of a vessel actual or deemed
was unnecessary in order to institute an action in rem.36 It confirmed what was stated
in MV Jute Express that actions in general start with the issue of process and not only
confined to actions in rem in Admiralty matters. It did not change what was said in MV
Jute Express about the settled procedural law in civil proceed ings in South Africa.
[37] On the aforegoing exposition, the established jurisprudence in civil
proceedings, which would include application proceedings, is that the proceedings are
commenced by the issue of the initiating process, eg. summons. A priori, proceedings
which have commenced are certainly ‘pending’. Accordingly, proper ly construed, the
word ‘pending’ can only mean that the forfeiture application has been issued. Service
is not required in addition, to render it ‘pending’.
[38] The word ‘pending’ cannot be given two meanings. Stated otherwise, it cannot
mean ‘issue and service’ and ‘issue’ at the same time. It is one or the other. Unless
that is so, the uncertainty that the second judgment purports to avoid will prevail. The
second judgment seems to suggest that this judgment has not said when the forfeiture
application ought to be served. That is not correct. It is clear that the commencement
of the 90 days is not tied to the service referred to in s 39(1)(a), but to the publication
referred to in s 39(1)(b). By so doing, the legislature clearly seems to have accepted
referred to in s 39(1)(b). By so doing, the legislature clearly seems to have accepted
that service may not be required or may involve practical difficulties resulting in delay.
POCA does not provide that the service of the preservation order or forfeiture
application be effected within 90 days. In terms of s 39(1) the preservation order should
be served ‘as soon as practicable after the making of the order.’ In terms of s 48(2) 14
days’ notice of the forfeiture application must be given to everyone who entered an
35 The Seaspan Grouse
Seaspan Holdco 1 Ltd and Others v Ms Mare Tracer Schiffahrts and Another 2019 (4) SA 483 (SCA)
para 29.
36 Ibid para 30.
17
appearance in terms of s 39(3). I have alluded to examples where service legitimately
might not be possible within the 90 days, and the debilitating consequences that may
follow if there is a hard rule that service of the preservation order and of the forfeiture
application be made within the 90 days.
[39] In the present matter, at the time of the hearing of the application, despite the
expiration of the 90 day period on 27 October 2023, the preservation order was still in
force, because the forfeiture application was ‘pending’ in terms of s 40(a) of POCA, ie
even though service of that application only took place on 17 August 2023. The NDPP
complied with the provisions of s 48(2) by serving the application on Mr Gcaba more
than 14 days before the application was heard . The high court, therefore, effectively,
erred in finding that the application was futile because the 90-day period, from the date
of the publication in the Gazette the preservation order had lapsed; and the forfeiture
application was not ‘pending’ within that period.
[40] The NDPP submitted that the order of the high court refusing the application of
the forfeiture order ought to be set aside on the basis of the undisputed facts and the
merits of the case . It urged us to replace the order of the high court with an order
granting the forfeiture application.
[41] The evidence establishes on a balance of probabilities that the R46 120 is the
proceeds of crime and that Mr Gcaba can hardly make any lawful claim to it. Despite
being served with relevant papers, including the preservation order and the forfeiture
application, and having had 14 days to respond , Mr Gcaba did not oppose the relief
sought. He also took no other steps, including those contemplated in ss 47(1) and (3)
of POCA to rescind the preservation order. In any event, as stated before, even if he
has an interest in the property, in terms s 50(3) of POCA, his absence could not have
has an interest in the property, in terms s 50(3) of POCA, his absence could not have
prevented the high court or prevent this Court from making the forfeiture order sought.
The NDPP has made out a case for the forfeiture of the property in terms of s 50(1)(b)
of POCA and the high court ought to have concluded accordingly. Out of an abundance
of caution, in addition to publication of the forfeiture order in the Gazette, service of the
forfeiture order, made by this Court in substitution of the high court’s order, would have
to be served on Mr Gcaba.
18
[42] From the second judgment it appears that there is a concern with the fact that
the high court had initially granted an order without reasons. Unfortunately, the NDPP
never raised this issue and all the facts in that regard are not before us. In the high
court, unopposed motion court matters (which this one was) are usually disposed of
without reasons and reasons are requested in which event they must be promptly
provided. Due to the paucity of information on the record before us, we cannot find that
there has been a departure from the norm that requires censure by this Court.
[43] The following order is made:
1. The appeal is upheld.
2. The order of the high court dated 27 October 2023, dismissing the application for
a forfeiture order, is set aside and replaced with the following:
‘1. An order is granted in terms of s 50(1) of the Prevention of Organised Crime
Act 121 of 1998 (POCA) declaring forfeit to the State R46 120 (the property)
held under the reference: SAP13/886/2021 via Durban Central CAS
257/03/2021 at the Durban Central Police Station.
2. After the forfeiture order referred to in paragraph 1 takes effect, the
Station Commander, Durban Central Police Station, is directed to
forthwith deposit the property into the banking account described below:
2.1 Name of Account: Criminal Asset Recovery Account
2.2 Name of Bank: The Reserve Bank of South Africa
2.3 Account number: 8[...]
2.4 Deposit reference number: 1[...]
3. In terms of s 50(5) of POCA, the State Attorney, Durban is directed to
forthwith publish a notice of this Order in the Government Gazette.
4. The Applicant is directed to deliver a copy of this order by hand, or
through email to:
4.1 The Station Commander, Durban Central Police Station, SAPS
and
19
4.2 The SAP13 Exhibit Clerk, Durban Central Police Station.
5. The Applicant is directed to forthwith serve a copy of this judgment on
the Respondent, Sithembiso Adolphus Gcaba , within 20 days of th is
order.
6. Any person whose interest in the property concerned is affected by the
forfeiture order, may within 20 days after they have acquired knowledge
of such order, in terms of the relevant provisions of POCA, apply for the
order to be varied or rescinded by the high court.
7. Any person affected by the forfeiture order, who was entitled to receive
notice of the forfeiture application under s 48(2) of POCA but who did
not receive such notice, may within 45 days after the publication of the
notice of the forfeiture order in the Government Gazette, apply to the
high court for an order under s 54 of POCA, to exclude his, her or its
interest in the property, or to be part of the operation of the order in
respect of the property
8. In terms of s 50(6) of POCA, this forfeiture order shall not take effect
before the period allowed for an application under s 54 of POCA, or an
appeal under s 55 of POCA has expired, or before such application or
appeal is disposed of.’
_____________________________
R C A HENNEY
ACTING JUDGE OF APPEAL
Makgoka JA (Dawood AJA concurring):
[44] I have read the judgment prepared by my colleague, Henney AJA (the first
judgment). I disagree with its interpretation of s 40(a) and its conclusion to uphold the
appeal. In my view, a proper interpretation of that provision means that the NDPP is
required to issue and serve the forfeiture application within 90 days . Failing to do so,
the preservation order lapses. My core disagreement with the interpretation of the first
judgment is the uncertainty it will create in the proceedings under Chapter 6 of POCA.
Facts
20
[45] The basic facts relevant to the appeal are these. The NDPP obtained a
preservation order against the respondent ex parte on 28 September 2022 . Section
39(1)(a) provides that a preservation order must be served ‘as soon as practicable’
after being obtained. The NDPP did not comply with this provision. It only served it
after 11 months. The NDPP published the preservation order in the Gazette on 14
October 2022. On 11 January 2023 , the NDPP issued the forfeiture application in
terms of s 48. This was well within the 90-day period envisaged in s 40(a). However,
the NDPP failed to serve the application until 17 August 2023, ie after 11 months, when
it served it together with the preservation order.
In the high court
[46] The forfeiture application came before the high court on 27 October 2023 after
several failed attempts. The respondent did not oppose the application. The high court
had to interpret s 40(a), which in relevant part reads:
‘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.’
[47] The high court held that to avert the lapsing of a preservation order, and make
it pending as envisaged in s 40 (a), both the issue and service of the forfeiture
application should take place within 90 days of the preservation order being published
in the Gazette. It thus dismissed the application. The high court relied on Levy. In turn,
Levy relied, among others, upon Mahlangu. In the latter case, the Land Claims Court,
in the context of the Extension of Security of Tenure Act 62 of 1997, held that legal
proceedings are commenced by the issue and service of summons.
[48] Levy rested on two premises. The first is that in adversarial proceedings, they
cannot be said to be ‘pending’ where one of the parties was unaware of such
cannot be said to be ‘pending’ where one of the parties was unaware of such
proceedings. The second is that the word ‘pending’ is ambiguous and thus may be
interpreted as requiring service of the application on a respondent or not doing
so. POCA, the court said, ‘ . . .ma[d]e serious inroads on the rights of an individual . .
.’37, and as such, its provisions had to be restrictively construed to limit violation of
37 Levy para 9.
21
rights. The high court, relying on Levy, dismissed the forfeiture application brought by
the NDPP but subsequently granted it leave to appeal to this Court.
In this Court
[49] The NDPP asserted that it can serve the forfeiture application after the 90day
period referred to in s 40(a), as long as the application was issued within that period.
The first judgment comprehensively sets out the NDPP’s submissions. It is therefore
not necessary to regurgitate them here.
An overview of the interrelated provisions
[50] The contextual setting of s 40 (a) is that it is part of interrelated provisions of
POCA, together with ss 38, 39, 40, 48 and 50. Thus, s 40 (a) cannot be interpreted in
isolation from these provisions. Sections 38, 39 and 40 all fall under Chapter 6, Part 2
of the POCA, titled Preservation of Property Orders, while ss 48 and 50 fall under Part
3, titled Forfeiture of Property. The provisions therefore provide for a seamless three-
step procedure from the obtaining of a preservation order until the property is forfeited.
The first is the obtaining of a preservation order in terms of s 38. It is sought, and
granted, by the high court on ex parte application, prohibiting any person from dealing
in any manner with the property referred to in the order. For the pre servation order to
be granted, the court must, in terms of s 38(2), be satisfied that there are reasonable
grounds to believe, among others, that the property concerned is the proceeds of
unlawful activities.
[51] The second is the notification of the existence of a preservation order. Section
39(1) requires the NDPP to do two things after the granting of the preservation order:
Service of the notice of the preservation order (s 39(1)(a)) and publication of the notice
in the Gazette (s 39(1)(b)). The sub -sections are joined by ‘and’, which means they
must be read conjunctively, ie both must be satisfied. The structure of s 39 seems to
must be read conjunctively, ie both must be satisfied. The structure of s 39 seems to
suggest that service of the preservation order must precede publication in the Gazette.
This is because s 39(1) decrees that service has to take place ‘as soon as practicable’
and ‘shall be served in the manner in which a summons whereby civil proceedings in
the high court are commenced, is served’, ie service through the sheriff, which can
take place within a few weeks.
22
[52] The situation is different when it comes to publication in the Gazette. One must
overcome administrative hurdles to have a document published there. In this context,
publication in the Gazette is usually the final step of the two requirements. This, in my
view, explains why s 40(a) links the duration of the preservation order to its publication
in the Gazette rather than its service, setting a 90day expiry period unless a forfeiture
application is pending before the high court.
[53] Section 39(3) provides for the entering of an appearance to defend by the two
categories of persons mentioned above, ie those who receive the notice of a
preservation order by way of service by the sheriff and those who receive it through
publication in the Gazette. In terms of s 39(4), those who were notified of it by service
must deliver their appearance to defend within 14 days after service, while those who
received notice through publication in the Gazette must do so within 14 days of such
publication. In each instance, the appearance to defend serves to give ‘notice of [the
person’s] intention to oppose the making of a forfeiture order or to apply for an order
excluding his or her interest in the property concerned from the operation thereof’ .
(Emphasis added.)
[54] Section 39(5) provides that the appearance to defend shall be accompanied by
an affidavit stating: ( a) full particulars of the identity of the person entering the
appearance; (b) the nature and extent of his or her interest in the property concerned;
and (c) the basis of the defence upon which he or she intends to rely in opposing a
forfeiture application or applying for the exclusion of his or her interests from the
operation thereof. This provision is significant because it creates procedural rights as
set out in (a)–(c) above.
[55] The third and final step is an application for a forfeiture order in terms of s 48,
read with s 50. Section 48(1) allows the NDPP to apply to the high court for forfeiture
read with s 50. Section 48(1) allows the NDPP to apply to the high court for forfeiture
of the property which is subject to a preservation order. In terms of s 48(1 ), ‘ if a
preservation of property order is in force’, the NDPP may apply to the high court for an
order forfeiting to the State all or any of the property that is subject to the preservation
of property order. In terms of s 48(2), the NDPP shall give 14 days’ notice of such
application, ‘…to every person who entered an appearance in terms of section 39(3)’.
23
Such a notice must be served by a sheriff (s 48(3)). Thus, the forfeiture application
comes at the tail-end of the process.
Analysis
[56] Section 40 (a) must be interpreted in a unitary exercise, simultaneously
considering the text, purpose and context of POCA. 38 In addition, the provision must
be considered through the prism of s 39(2) of the Constitution, which enjoins us to
construe it in accordance with the spirit, purport and objects of the Bill of Rights. The
inevitable starting point is the language of the provision. It seeks to limit the duration
of a preservation order. It will lapse within 90 days, unless within that period, an
application for forfeiture is ‘pending’. As to its purpose, s 40(a) is meant to ensure that
the preservation order is either confirmed by a forfeiture order or is discharged without
delay.
[57] It is so that s 40 (a) does not prescribe a time frame within which a forfeiture
application should be served. If a statute decrees for something to be done without
providing a time frame within which it has to be done, it is usually interpreted to mean
that it has to be done within a reasonable period.39 I consider a period of 90 days after
publication of the preservation order in the Gazette, to be more than reasonable for
the NDPP to serve the forfeiture application. The first judgment does not disagree with
the general proposition that the forfeiture application must be served within a
reasonable time after publication of the preservation o rder. Yet, it is silent on either:
(a) what it deems to be a reasonable period within which a forfeiture application should
be served; and (b) whether it considers a period of 90 days to be a reasonable period
within which the forfeiture application must be served.
[58] The essence of the NDPP’s argument is that once it applies for a forfeiture
order, it can delay serving it for as long as it wishes. Considering s 40(a), either on its
order, it can delay serving it for as long as it wishes. Considering s 40(a), either on its
own or in conjunction with the related provisions, there are no textual or contextual
indicators for that proposition. On the contrary, there are strong indicators in the related
38 Endumeni para 18.
39 S v Mohamed 1977 (2) SA 531 (A) at 543C; Titus v Union & SWA Insurance Co Ltd 1980 (2) SA 701
(TKS); Cadac (Pty) Ltd v Weber-Stephen Products Co and Others [2010] ZASCA 105; [2011] 1 All SA
343 (SCA); 2011 (3) SA 570 (SCA) ; 2010 BIP 307 (SCA) para 23 ; Camps Bay Rate Payers and
Residents Association and Others v Minister of Planning, Culture and Administration, Western Cape,
And Others 2001 (4) SA 294 (C) at 306H-307G.
24
provisions against it. That time is of the essence is clear from s 39(1). The provision
sets the tone by commanding the NDPP to serve and publish the preservation order
‘as soon as practicable after the making of the order’. In terms of s 39(4)(a), a person
who is served with a preservation order must deliver his or her appearance to defend
within 14 days of service.
[59] In Knoop, this Court described the relationship between the preservation and
forfeiture stages of proceedings as ‘closely intertwined and symbiotic’.40 It also made
this trenchant observation:
‘Inherent in Chapter 6 of POCA is the recognition that forfeiture should proceed without undue
delay. This explains the fourteen-day limit for a person to enter an appearance after receipt of
notice of the preservation order, as well as the cut -off of ninety days for the institution of a
forfeiture application. The aim is to progress towards the forfeiture stage as soon as
possible’. 41 (Emphasis added.)
[60] These obiter dicta put paid to the notion that the NDPP is entitled to delay the
service of the forfeiture application. This should be the end of the debate. Although the
interpretation of s 40(a) was not in issue there, its dic ta about the need for a speedy
disposal of preservation and forfeiture proceedings are apt in the interpretative
exercise for that provision. We are , in any event, bound by the Knoop dicta that
‘forfeiture should proceed without undue delay’ , and that ‘[t]he aim is to progress
towards the forfeiture stage as soon as possible’.
[61] The first judgment can only depart from the se dicta if it concludes either that
they are clearly wrong42 or that they were expressed without any reasoned analysis.43
But none of these can be said about the Knoop dicta. In Steenkamp v South African
Broadcasting Corporation (Steenkamp),44 this Court held that it will not lightly depart
from a view previously expressed by it, particularly by five of its members sitting
from a view previously expressed by it, particularly by five of its members sitting
together, even if expressed obiter.45 Knoop is a unanimous judgment of five members
40 Knoop para 44.
41 Knoop para 42.
42 Patmar Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and Others [2018]
ZASCA 19; 2018 (4) SA 107 (SCA) para 7.
43 Richman v Ben-Tovim [2006] ZASCA 121; 2007 (2) SA 283 (SCA); [2007] 2 All SA 234 (SCA) para
8.
44 Steenkamp v South African Broadcasting Corporation [2002] 2 All SA 180 (A); 2002 (1) SA 625 (SCA)
(Steenkamp).
45 Ibid para 12.
25
of this Court, and its dicta should not be lightly departed from or ignored. By ignoring
its dicta, the first judgment goes against the authority of this Court as expressed in
Steenkamp.
[62] The NDPP has 90 days after the publication of the preservation order during
which it could serve the forfeiture application. That period, in my view, is more than
reasonable to serve a court process. Failure to do so leads to u nreasonable delays,
which, in turn, adversely affect the administration of justice. The fate of the property
that is the subject of a preservation order must be determined within a reasonable
time. The Legislature deemed 90 days a reasonable period for notifying all interested
persons of the preservation order, thereby making it ripe for a forfeiture application.
[63] When viewed against these considerations, the interpretation asserted by the
NDPP runs into difficulties. On the architecture of the interrelated provisions, the lapse
of the 90day period is the penultimate step towards the forfeiture application. In other
words, it is envisaged that once the 90 days expire, and the period for entering an
appearance to defend in terms of s 39(2) has expired, the path would have been
cleared for the forfeiture application in terms of s 48 to be considered by the court.
[64] On the interpretation asserted by the NDPP, if it has issued the forfeiture
application within 90 days of publication in the Gazette, the application is pending, and
it is entitled to sit idly and not serve it on a respondent. The potential for abuse of
preservation orders is inherent in that interpretation. The NDPP could unduly prolong
the duration of a preservation order by simply issuing a forfeiture application and then
delaying serving it. The present case illustrates that. As mentioned, the preservation
order was only served 11 months after it was issued.
[65] According to the NDPP, there is no time limit for serving the forfeiture
[65] According to the NDPP, there is no time limit for serving the forfeiture
application. Thus, a preservation order could go on indefinitely, as long as the forfeiture
application has been issued. This is obviously untenable. As cautioned in Endumeni,
we must avoid an interpretation that leads to impractical, unbusinesslike or oppressive
consequences or that will stultify the broader operation of the legislation.46
46 Endumeni para 26.
26
Constitutional values
[66] The interpretation preferred by the NDPP and accepted by the first judgment is
at odds with both constitutional values and the common law. As regards the former,
the Constitutional Court pointed out in Fraser v ABSA ,47 that while POCA plays a
legitimate and vital role in combating crime, it could also have potentially far-reaching
and abusive effects. The Court made a similar observation in Mohunram v National
Director of Public Prosecutions.48 It said that statutory civil forfeiture of assets is meant
to pursue worthy and noble objectives aimed at curbing serious crime. And yet, ‘there
is no gainsaying that, in effect, it is draconian’.49
[67] The above remarks were made in the context that forfeiture applications under
POCA invariably implicate property rights of respondents. The effect of a preservation
order is that it prohibits any person from dealing in any manner with the property
referred to in the order. T here is therefore no question that the preservation and
forfeiture provisions of POCA limit the right to enjoy property fully. For that reason, we
must construe s 40(a) and related provisions in accordance with the rights and values
protected in the Constitution, as commanded in s 39(2) of the Constitution. The
Constitutional Court explained this in Makate v Vodacom:50
‘[I]f the provision under construction implicates or affects rights in the Bill of Rights, then the
obligation in section 39(2) is activated. The court is duty-bound to promote the purport, spirit
and objects of the Bill of Rights in the process of interpreting the provision in question.
The objects of the Bill of Rights are promoted by, where the provision is capable of more than
one meaning, adopting a meaning that does not limit a right in the Bill of Rights. If the provision
is not only capable of a construction that avoids limiting r ights in the Bill of Rights but also
bears a meaning that promotes those rights, the court is obliged to prefer the latter meaning.
bears a meaning that promotes those rights, the court is obliged to prefer the latter meaning.
. . .’51
47 Fraser v ABSA Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) [2006] ZACC
24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) para 46.
48 Mohunram and Another v National Director of Public Prosecutions and Another (Law Review Project
as Amicus Curiae) [2007] ZACC 4; 2007 (4) SA 222 (CC); 2007 (6) BCLR 575 (CC); 2007 (2) SACR
145 (CC).
49 Ibid para 118.
50 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (6) BCLR 709 (CC); 2016 (4) SA 121 (CC).
51 Ibid paras 88 and 89.
27
[68] Following the above principles, we are enjoined to adopt a construction that
minimally interferes with the constitutional right affected by the provisions. Interpreting
s 40(a) to mean that the NDPP has an unlimited right to delay the determination of a
forfeiture application by failing to serve it within 90 days does not achieve that purpose.
It conflicts with what s 39(2) of the Constitution dictates. Section 39(2) is not a judicial
expedience that a court can dispense with when convenient. It is a constitutional
injunction which binds all courts to apply it. The first judgment accepts that a
preservation order has the effect of limiting a person’s right to their property. Des pite
this, the first judgment does not consider at all how this intersects with the injunction
of s 39(2).
[69] The NDPP has not suggested that it would suffer any hardship, inconvenience
or prejudice if required to serve the forfeiture application within 90 days after the
publication of the preservation order. As mentioned, the application must be served by
a sheriff. It does not take much to do so. On the contrary, the prejudice to a person
whose property is the subject of a preservation order is evident if a forfeiture
application is not timeously adjudicated on. And it cannot be finally adjudicated upon
until it is served. There is no provision in POCA by which a respondent can expedite
the adjudication of the forfeiture application.
Failure to notify respondent of proceedings
[70] The NDPP’s case is further weakened by the fact that the preservation order
was not served ‘as soon as practicable’ as commanded in s 39(1). It was served
simultaneously with the forfeiture application, 11 months after it was granted. In such
circumstances, it is difficult to accept how the application could be said to be ‘pending’.
Thus, for Mr Gcaba, until both the forfeiture application and the preservation order
were served simultaneously, he would have been oblivious to the fact that the NDPP
were served simultaneously, he would have been oblivious to the fact that the NDPP
was pursui ng any POCA proceedings against him. As aptly remarked in Union
Government v Willemse:52
‘A demand cannot be considered to be made until it is communicated to the person who is
required to comply with it. Nor can any summons have any effect as a summons until it is
served on the party who is called upon to obey it’53
52 Union Government v Willemse 1922 OPD 14 at 17.
53 Ibid at 17.
28
[71] In the circumstances, it cannot be said that the forfeiture application is ‘pending’
between the NDPP and the respondent where the latter is unaware of such
proceedings. As I see it, until at least the preservation order is served under s 39(1), a
forfeiture application cannot be considered by the court. Therefore, the forfeiture
application in the present case could not have been pending, because the preservation
order had not been s erved as envisaged in s 39(1). Consequently, on this basis, the
NDPP’s application could not succeed.
[72] As already observed, ss 39(1)( a) and ( b), which provide for service and
publication respectively, are linked by the word ‘and’, indicating that both must be
fulfilled. This is because they target two different groups of persons. First, those on
whom the NDPP must serve the preservation order, i dentified as ‘persons known to
[the NDPP] to have an interest in property which is subject to the order’. Second, those
who must be notified of the preservation order by publication in the Gazette, namely,
the general public, including potential interested parties in the preserved property.
[73] In the scheme of the relevant provisions, the only category of people who would
be ‘deemed’ to have been notified are those envisaged in s 39(1)(b), who would obtain
knowledge of the preservation order by publication in the Gazette. But the category of
persons envisaged in s 39(1)( a), upon whom it is mandatory to serve, cannot be
‘deemed’ to have obtained knowledge because they would have, as a matter of fact,
been served with the preservation order.
The first judgment
[74] The first judgment postulates that ‘it may also not be possible to direct a
preservation order to an identifiable person because the ownership of the property
may be unknown’ . The first judgment further states that ‘[t]his would render the
requirement of service nugatory where people do not deliver notice in terms of s 39(3)
requirement of service nugatory where people do not deliver notice in terms of s 39(3)
to oppose the application after the publication of the order’.
[75] It is unclear how any of the above has a bearing on the interpretative exercise
of s 40(a), or how s 39(3) would be rendered nugatory. If, at the preservation order
stage, the NDPP does not have an identifiable person to associate the preserved
29
property with, it is not required to serve the preservation order under s 39(1)( a). This
is because, as that section explicitly states, the NDPP must ‘give notice of the order to
all persons known to [it] to have an interest in property subject to the order’. It follows
that if the NDPP is unaware of such persons, it bears no obligation to give notice under
s 39(1)(a). In such cases, the NDPP only needs to publish the preservation order in
the Gazette in accordance with s 39(1)(b).
[76] The central thesis of the first judgment is that because proceedings in terms of
Chapter 6 of POCA are in rem, it suffices for the forfeiture application to be ‘pending’
if the NDPP merely issued the application without serving it. For this proposition, the
first judgment relies on MV Jute Express. The first judgment also relies on the obiter
remarks in MV Jute Express that all civil proceedings commence with the issuance of
a summons. In Seaspan, this Court departed from MV Jute Express, and held that an
action in rem is commenced by service of a writ. This put paid to the central thesis of
the first judgment that all civil proceedings commence on the issue of summons.
[77] That notwithstanding, both MV Jute Express and Seaspan concerned the
interpretation of s 1(2) and related provisions of the Admiralty Jurisdiction Regulation
Act, which concern a highly technical field of the law. It is thus not helpful as an
interpretative aid in construing the word ‘pending’ in the specific context of s 40(a).
[78] This underscores the importance of context when interpreting a provision with
reference to an unrelated statutory provision. The Constitutional Court pointed out in
Mhlungu that in the normal meaning of the term ‘pending’, proceedings ‘are pending if
they have begun but not yet finished, but the term may have different connotations
according to its context. Dodson J also correctly observed in Mahlangu that
‘generalised statements that proceedings commence on the issue of summons, on
‘generalised statements that proceedings commence on the issue of summons, on
closer analysis, relate to a particular context’ . He further point ed out that the
statements are not valid in all instances. He cite d as an example the law on
prescription, where the proceedings only become pending between the parties when
the running of prescription is interrupted by the issue and service of summons, as held
by this Court in Kleynhans v Yorkshire Insurance Company .54 There are statutory
exceptions as well, for example, s 1(4) of the Institution of Legal Proceedings Against
54 Kleynhans v Yorkshire Insurance Co Ltd 1957 (3) SA 544 (A) at 552B.
30
Certain Organs of State Act 40 of 2002, which provides that legal proceedings under
that Act are instituted by service of process on an organ of State.
[79] As part of its reasoning for its preferred interpretation of s 40( a), the first
judgment invokes the post-forfeiture provisions, such as rescission of the preservation
order, as ‘safeguards’. This is unhelpful. The issue we have to determine is the
pathway to obtaining a forfeiture order. If, on a proper construction of s 40(a), the
forfeiture application must be issued and served within 90 days of the publication of
the preservation order, it is irrelevant that the order can be rescinded later.
[80] The first judgment holds that s 40( a) does not require the NDPP to serve the
forfeiture application within 90 days of the publication of the preservation order in the
Gazette. But the first judgment provides no guidance as to when the forfeiture
application must be served. This, in my view, is a significant weakness in the first
judgment. The absence of such guidance leaves it to the NDPP's whims when to serve
the forfeiture a pplication. This creates uncertainty. The first judgment offers no
reflection on this aspect.
Uncertainty in the law
[81] Recently, this Court held in Schoeman v Director of Public Prosecutions
(Schoeman)55 that every judgment must ‘account for the systemic consequences of its
decision’. By offering no insights about the uncertainty its order is likely to create, the
first judgment fails this critical injunction. Writing for the majority in Schoeman, and
commenting on the uncertainty likely to result from the first judgment in that case,
Unterhalter JA asked:56
‘The first judgment offers no reflection upon the consequences of its decision. What is the law
after the first judgment is handed down?’
[82] I ask the same question here. Having determined that the NDPP is not obliged
to serve the forfeiture application within 90 days of the publication in the Gazette, what
to serve the forfeiture application within 90 days of the publication in the Gazette, what
is the law as to when the NDPP is required to serve the forfeiture application after the
publication of the preservation order? Can it, in its discretion, serve it after a month,
55 Schoeman v Director of Public Prosecutions [2025] ZASCA 124; 2025 (2) SACR 561 (SCA) para 88.
56 Ibid para 87.
31
six months, a year, two years, five years, or even ten years? As was the case here,
the NDPP served the application after 11 months. How should Judges in the various
divisions of the high court approach forfeiture applications served inordinately long
after publication of the preservation orders? Should they insist that the NDPP apply for
condonation for such delays, even though there is no provision for condonation
application in POCA? If there has to be condonation, what is the cut -off point beyond
which such condonation should be sought? These are pertinent questions that require
clarity. The first judgment offers none.
[83] Two related principles of statutory interpretation are apposite here. The first is
that, if possible, a statute must be interpreted to avoid a lacuna, as held by this Court
in Davehill v Community Development Board 57 relying on Koller, N O v Steyn, N O En
’n Ander’58 This was recently affirmed by the Constitutional Court in Shiva Uranium v
Tayob.59 The second is a need for statutory interpretation to achieve reasonable
certainty, as recognised by the Constitutional Court in Abahlali Basemjondolo
Movement SA v Premier of the Province of KwaZulu -Natal60 and in Affordable
Medicines Trust v Minister of Health.61
[84] What these decisions entail is that the law must indicate to those affected, what
is required of them, so that they may regulate their conduct accordingly. Stated in a
different but relevant context of the need to follow precedent in Ruta v Minister of Home
Affairs,62 the Constitutional Court emphasised that without certainty, predictability and
coherence, ‘[t]he courts would operate without map or navigation, vulnerable to whim
and fancy’.63 This is how courts are likely to operate in the absence of any guidance
or a time frame for when the NDPP is required to serve the forfeiture application.
57 Davehill (Pty) Ltd and Others v Community Development Board 1988 (1) SA 290 (A) at 300C-D.
57 Davehill (Pty) Ltd and Others v Community Development Board 1988 (1) SA 290 (A) at 300C-D.
58 Koller, N O v Steyn, N O En ’n Ander 1961 (1) SA 422 (A) at 429B-C.
59 Shiva Uranium (Pty) Limited (In Business Rescue) and Another v Tayob and Others [2021] ZACC 40;
2022 (2) BCLR 197 (CC); 2022 (3) SA 432 (CC) para 38.
60 Abahlali Basemjondolo Movement SA v Premier of the Province of Kwa-Zulu Natal [2009] ZACC 31;
2010 (2) BCLR 99 (CC) para 87.
61 Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3; 2006 (3) SA
247 (CC); 2005 (6) BCLR 529 (CC) para 108.
62 Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (3) BCLR 383 (CC); 2019 (2) SA 329 (CC).
63 Ibid para 21.
32
[85] In my view, the NDPP's interpretation of s 40( a) faces formidable difficulties.
These, in turn, weaken the foundational thesis of the first judgment. By contrast, the
interpretation requiring the NDPP to issue and serve the forfeiture application within
90 days of the publication of the preservation order provides certainty to the forfeiture
procedure. It permits a harmonious interpretation of s 40(a) with its related provisions,
and presents no anomalies, absurdities, or difficulties. Considering the language,
purpose, and context of s 40( a) and related provisions, it is the more preferable
construction.
The specific facts of the present matter
[86] The appeal should fail for the simple reason that the NDPP flouted the relevant
provisions of the POCA . As mentioned, s 39(1)( a) requires the NDPP to serve the
preservation order on the respondent ‘as soon as practicable’ after it has been granted.
The NDPP failed to serve the preservation order as envisaged in that section. It served
the preservation order on 17 August 2023, some 11 months after it was granted. It was
served together with the forfeiture application. I have already alluded to Knoop, in
which this Court addressed the close relationship between preservation and forfeiture
proceedings, and the need for the NDPP to apply for the forfeiture order as soon as
the preservation order has been published.
[87] The question is simply whether the NDPP complied with the Knoop dicta where
it failed for 11 months to: (a) serve the preservation order ‘as soon as practicable’ after
obtaining it; (b) serve a forfeiture application after issuing it. The ineluctable answer is
No. The NDPP failed to observe the Knoop dicta, and for that reason, its appeal should
fail.
[88] It must also be borne in mind that the notice of application for a forfeiture order
is not required to be served personally upon a respondent. Section 48(3) provides that
is not required to be served personally upon a respondent. Section 48(3) provides that
it ‘shall be served in the manner in which a summons whereby civil proceedings in the
High Court are commenced, is served’ . Apart from personal service, rule 4(1) of the
Uniform Rules of Court provides the various other manners in which a document may
be served, which do not entail personal service. Therefore, the NDPP cannot complain
that it had difficulty in effecting person al service on the respondent because he was
evading service.
33
[89] The question that remains unanswered by the NDPP is why there would be a
need to issue a forfeiture application and delay serving it for more than three months.
If there had been any legitimate reasons for this, the NDPP would have disclosed
them. It has not, and I find none. The NDPP’s failure to serve the forfeiture application
timeously is not adequately explained. The NDPP says that the failure was due to ‘lack
of coordination between it and the State Attorney’. It is not clear what this is supposed
to mean. The NDPP does not say that it attempted to serve the application but was
unsuccessful.
[90] In the absence of a proper explanation, I attribute its failure to serve the
forfeiture application for 11 months to sheer ineptitude. The NDPP is an organ of the
State and must conduct itself as a model litigant. To borrow from Cameron J in MEC
for Health, Eastern Cape v Kirland Investments:
‘Government is not an indigent or bewildered litigant, adrift on a sea of litigious uncertainty, to
whom the courts must extend a procedure -circumventing lifeline. It is the Constitution’s
primary agent. It must do right, and it must do it properly’. 64
[91] The procedural lapses by the NDPP in this application demonstrate how its
preferred interpretation of s 40( a) would lead to uncertainty, unpredictability and
incoherence in our law. A court, especially an appellate court like ours, can ill afford to
condone such an outcome. The high court was correct in its conclusion.
Order without reasons
[92] The high court dismissed the application without reasons on 27 October 2023
and only furnished reasons upon request. The first judgment states that we should not
comment on this issue as the NDPP did not raise it. This misses the point because
this Court does not require a complaint by any of the parties for it to pronounce on
matters of judicial accountability, of which an order without reasons is. The practice of
matters of judicial accountability, of which an order without reasons is. The practice of
64 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Laser
Institute [2014] ZACC 6; 2014 (5) BCLR 547 (CC); 2014 (3) SA 481 (CC) para 82.
34
issuing orders without reasons has been deprecated by both this Court and the
Constitutional Court,65 even though none of the parties had raised it.
[93] Although the application was unopposed, it was not a typical unopposed
motion. A complex question of interpretation was debated before the Judge, with
different divisions of the high court holding divergent views on the matter. Significantly,
there is no case from Kwazulu-Natal on the issue . Therefore, this was a significant
case because whatever the outcome, it bound all Judges in that division. Moreover,
since the order issued was one of dismissal of the NDPP’s application, it had far -
reaching implications, not only for the NDPP but also for Judges within the division.
Between the time the order was made and the reasons provided, the Judges in
KwaZulu-Natal were bound by the order without reasons behind it. For these reasons,
it was inappropriate for the Judge to grant an order without giving reasons.
[94] Commenting on a similar situation recently, this Court in MEC for Health,
Gauteng Provincial Government v AAS obo CMMS remarked:
‘Although the high court subsequently furnished reasons upon request, its failure to do so
when it made the order remains unexplained. It often happens that a court, due to reasons of
urgency or expediency, makes an order without reasons. But, in those cir cumstances, the
salutary practice is to inform the parties that the reasons for the order would follow in due
course. There is no indication in its subsequently furnished reasons that any of the above
circumstances necessitated the high court to grant an o rder without reasons, or that it had
intended to give them later’. 66
These remarks are worth reiterating here.
Conclusion
[95] In all the circumstances, had I commanded the majority, I would dismiss the
appeal.
65 Botes and Another v Nedbank Ltd 1983 (3) SA 27 (A) at 27D; Strategic Liquor Services v Mvumbi
NO and Others [2009] ZACC 17; (2009) 30 ILJ 1526 (CC); 2010 (2) SA 92 (CC); 2009 (10) BCLR 1046
(CC); [2009] 9 BLLR 847 (CC) para 14.
66 MEC for Health, Gauteng Provincial Government v AAS obo CMMS [2025] ZASCA 91; 2025 (6) SA
152 (SCA) para 160.
35
___________________
T MAKGOKA
JUDGE OF APPEAL
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Appearances:
For appellant: V Gajoo SC (with V Ngqasa)
Instructed by: State Attorney, Durban
State Attorney, Bloemfontein.