SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION MAHIKENG
CASE NO: M440/2023
Not reportable
In the matter between:
BRINK CONSTRUCTION (PTY) LTD FIRST APPLICANT
TLHABEGO DISTRIBUTORS (PTY) LTD SECOND APPLICANT
and
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS FIRST RESPONDENT
THE SOUTH AFRICAN REVENUE
SERVICE CUSTOMS,
RAMATLHABAMA BORDER POST SECOND RESPONDENT
IN RE:
IN THE EX PARTE APPLICATION OF:
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
Coram: Reddy J
Heard: 12 September 2025
Delivered: Judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released to SAFLII. The date and
time for handing down of the judgment are deemed to be 09h00 on 16 January
2026.
Summary: The application of section 53(1) of P revention of Organised Crime
Act 121 of 1998. Condonation principle s restated. The three set rule in respect
of affidavits and the sequence thereof in motion proceedings. The impact and
importance of confirmatory affidavits. The application of the Justice s of the
Peace and Commissioners of Oaths Act 16 of 1963 and its accompany ing
regulations.
________________________________________________________________
ORDER
________________________________________________________________
1. The application for the rescission of the forfeiture order of 16 November
2023 is dismissed.
2. The applicants shall pay the costs of the application jointly and severally,
the one paying the other to be absolved.
________________________________________________________________
JUDGMENT
________________________________________________________________
Reddy J
Introduction
[1] On 16 November 2023, this Court in terms of the provisions of s 53 of the
Prevention of Organised Crime Act1 (POCA) declared forfeited to the
State, (i) a silver V olvo Horse FH460 with registration number B[…], (ii) a
white Tanker Trailer with registration number B […] and (iii) a white
Tanker Trailer with registration number B […]. The applicants now seek
that this order be rescinded within the subset of s 5 of POCA, which the
first respondent opposes.
The parties
[2] The first and second applicants Brink Construction (Pty) Ltd and Tlhabego
Distributors (Pty) Ltd are companies duly registered in terms of the laws of
Botswana and trade within the Transport and Logistic Industry , primarily
transporting fuel within Botswana. For purposes of brevity and ease of
reading, these companies will be referred to as the applicants.
[3] The first respondent is the National Director of Public Prosecutions
(NDPP), cited in her capacity as the designated official relevant to the
provisions of POCA. The second respondent is the Commissioner of the
South African Revenue Services, responsible for oversight of the relevant
provisions of the Customs and Excise Act (the CAEA).2
Background
1 121 of 1998.
2 91 of 1964.
[4] It is common cause that diesel was transported into the Republic of South
from Botswana. The applicants claim that this occurred erroneously as the
driver of a V olvo Horse, Mr Pirukai (Pirukai), had attached full tankers to
the V olvo Horse rather than empty tankers , which were destined for
calibration in Pretoria since the fuel readers were presenting inaccurate
readings.
[5] The applicants posit that the NDPP had not exercised utmost good faith
through non-disclosure of material facts when the relief was sought on an
ex parte basis on 16 November 2023 , in respect of the preservation and
forfeiture orders. The applicants opine that the forfeiture order stands to be
set aside on this ground alone.More pertinently, the applicants claim that
the NDPP had implicit knowledge that the applicants, duly represented ,
were engaged in relevant communication most of which occurred amid the
forfeiture application. Notwithstanding this live communication the
applicants maintain that the NDPP proceeded on an ex parte basis to secure
the preservation order, and ultimately a forfeiture order.
[6] The applicants claim that a day after instructing their attorney of record,
Mr Mokale (Mokale), he brokered communication with the second
respondent. Thi s culminated in a physical meeting at the office s of the
South African Revenue Service (SARS) on 18 October 2023. The
representative of SARS, the applicants contend stated that preceding the
goods being released an application in terms of the provisions of s 91 read
with s 83 of the CAEA had to be launched. The applicants were informed
that the Commissioner of SARS would i n terms of these provisions
determine the monetary penalty that would be payable on the diesel prior
to the release of the applicants’ goods. The applicants state that on their
understanding, a three-prong process was envisaged. First, there would be
the determination of the penalty ; second, the penalty would be paid ; and
third, the goods would be released circumventing an y party enduring
prejudice.
[7] On 25 October 2023 , the applicants in acquiescing in the proposition of
SARS submitted an application as evinced in s 91 and 83 of the CAEA for
the determination of a penalty by the Commissioner of SARS. The
applicants assert that this application is still pending.
[8] Notwithstanding the Commissioner of SARS acknowledging receipt of
application as aforesaid , the applicants claim that the Commissioner of
SARS despatched a communiqué to the second applicant, stating that on
prima facie consideration of the matter, the goods should be liable for
forfeiture. Despite, this contention, the applicants avow that the body of
this communiqué unmistakeably acknowledges the existence of the
application in terms of s 93 of the CAEA.
[9] On 30 November 2023, Captain Bantseke, the investigating officer in the
parallel criminal investigation informed Mokale that the forfeiture order
had been granted. The applicants state that the existence of this forfeiture
order was astounding given that the applicants were awaiting the outcome
of the pending application. The applicants asseverate that after much effort;
the forfeiture order was emailed to Mokale on 12 April 2024. This then, the
applicants profess is the decisive date that the forfeiture order came to the
knowledge of the applicants.
[10] The applicants claim that SARS on 16 April 2024 , issued letters that the
tankers were seized in terms of s88 (1)(c) of the CAEA. The applicants
assert that the timeline of the various legal processes lead to the ineluctable
conclusion that the first and second respondents secured the perseveration
orders disingenuously. The applicants claim that it was untenable for the
NDPP to have obtained the order on two scores. First, it was the domain of
SARS to consider if such an order was legally permissible, and second, the
application in terms of s 93 of the CAEA was still very much alive.
[11] Moreover, the applicants maintain that the warrantless search and seizure
of the diesel was unlawful. This the applicants propose is underscored by
the fact that, first, the respondents did not consider Pirukai’s explanation;
second, no inventory of the diesel so seized had been provided to Pirukai,
the applicants or Mokale; t hird, no search and seizure warrant had been
obtained; and fourth, Pirukai had not consented to the search.
[12] Resulting from these several alleged irregularities the applicants conclude
that the entire process should be set aside.
Overview
[13] In Hoffman v NDPP 3 the following guidelines were advocated regarding
the application of s 53 (3) of POCA:
“[7] This application is obviously brought in terms of Section 53(3) of the Act which
provides for the rescission or variation of forfeiture orders granted by default. Section
53(4) of the Act provides that the Court may, upon good cause shown, vary or rescind
the default order or give some other direction on such terms as it deems appropriate.
[8] Section 53 falls within Chapter 6 of the Act. Section 37(1) of the Act provides that
all proceedings under Chapter 6 of the Act are civil proceedings. Section 62 of the Act
makes the provision of the Uniform Rules of Court insofar as they are not inconsistent
with the provisions of the Act applicable to proceedings under Chapter 6 of the Act. I
3 [2010] JOL 25001 (Tk) at paragraphs [7] to [9].
can think of no good reason why the phrase ‘upon good cause shown’ as use d in
Section 53(4) of the Act should be interpreted any differently from the way such phrase
has been interpreted in relation to the rescission of default judgments in terms of rule
31(2)(b) of the Uniform Rules of Court.
[9] In Grant v Plumbers (Pt y) Ltd 1949 (2) SA 470 (O) at 476 -7 it was held that the
applicant in an application for rescission must:
(a) give a reasonable explanation of his/her default and that if it is shown that his/her
negligence was wilful or due to gross negligence the Court should not come to his
assistance;
(b) the applicant must be bona fide and not merely intending to delay; and
(c) must show that he/she has a bona fide defence.”
Point in limine
[14] The NDPP raised a point in limine, that the applicants were furnished with
the forfeiture order on 5 December 2023, this then is the date upon which
the applicants through Mokale acquired knowledge of the forfeiture order.
To this end, the NDPP submits that the applicants failed to comply with
the provisions of s 53(3) of POCA by setting the matter down for
recission, variation or to file an application for such recission or
reconsideration within 20 (twenty) days as is peremptory. Therefore, the
NDPP opines that the failure of the applicants to apply for condonation is
fatal to this application.
[15] Additionally, on the assessment of the papers by the Court , there appears
to be a fatal irregularity relating to the sequence of affidavits filed of
record; and the commissioning thereof by the applicants. Conjointly, this
may be dispositive of the application.
The failure to apply for condonation
[16] The forfeiture order was granted on 16 November 2023 . The applicants
were furnished with the forfeiture order on 5 December 2023 . This then is
the date upon which the applicants through Mokale acquired knowledge of
the forfeiture order. To this end, the NDPP submits that the applicants
failed to comply with th e provisions of s 53(3) of POCA by setting the
matter down for recission, variation or to file an application for such
recission or reconsideration within 20 (twenty) days , as is peremptory.
Therefore, the NDPP opines that the failure of the applicants to apply for
condonation is fatal to this application.
[17] Extrapolating from this order, any person whose interest in the property
concerned is affected by this order may within twenty (20) days after
acquiring knowledge of the order set the matter down for variation or
recission by the court. On 30 November 2023, the applicants on their own
version became aware that a forfeiture order had been granted.
Notwithstanding the peremptory time frame set out in the forfeiture order
which mirrors the provisions of s 53 (3) of POCA, the applicants served
this application on 8 May 2024. Given these timelines it is incontestable
that this application is out of time as prescribed by s 53 (3) of POCA. To
this end, it is obligatory for the applicants to make out a substantive
application for condonation. It would be opportune to make a sweeping
synopsis of our law on condonation.
[18] In Melane v Santam Insurance Co Ltd4 the principles that underscore
condonation were adumbrated as follows:
‘In deciding whether sufficient cause has been shown, the basic principle is that the
Court has a discretion, to be exercised judicially upon a consideration of all the facts,
and in essence it is a matter of fairness to both sides. Among the facts usually relevant
are the degree of lateness, the explanation therefore, the prospects of success and the
importance of the case. Ordinarily these facts are interrelated, they are not individually
decisive, save of course that if there are no prospects of success there would be no point
in granting condonation. Any attempt to formulate a rule of thumb would only serve to
harden the arteries of what should be a flexible discretion. What is needed is an
objective conspectus of all the facts. Thus a slight dela y and a good explanation may
help to compensate prospects which are not strong. Or the importance of the issue and
strong prospects of success may tend to compensate for a long delay. And the
respondent's interests in finality must not be overlooked.’
[19] In United Plant Hire (Pty) Ltd v Hills 5, the law on condonation was
expressed as follows:
‘It is well settled that, in considering applications for condonation, the Court has a
discretion to be exercised judicially upon a consideration of all the facts; and that in
essence it is a question of fairness to both sides. In this enquiry, relevant considerations
may include the degree of non -compliance with the relevant Rules, the explanation
therefore, the prospects of success on appeal, the importance of the case, the
respondent's interest in the finality of his judgment, the convenience of the Court, and
the avoidance of unnecessary delay in the administration of justice. The list is not
exhaustive. These factors are not individually decisive but are i nterrelated and must be
weighed one against the other; thus a slight delay and a good explanation may help to
weighed one against the other; thus a slight delay and a good explanation may help to
compensate for prospects of success which are not strong.’
4 1962(4) SA 531 (A).
5 1990 (1) SA 717 (A) at 720 E-G.
[20] The Melane factors must be considered within the prism of the interests of
justice. In City of Ekurhuleni Metropolitan Municipality In re: Unlawful
Occupiers 1 Argyl Street and Others v Rohlandt Holdings CC and
Others6 the Constitutional Court, postulated factors that a co urt will
consider in deciding whether the grant of condonation is in the interests of
justice include:
“…the nature of the relief sought; the extent and cause of the delay; the effect of the
delay on the administration of justice and other litigants; the reasonableness of
the explanation for the delay; the importance of the issue to be raised in the intended
appeal; and the prospects of success. It is crucial to reiterate that
both Brummer and Van Wyk emphasise that the ultimate determinatio n of what is in the
interests of justice must reflect due regard to all the relevant factors but it is not
necessarily limited to those mentioned above. The particular circumstances of each
case will determine which of these factors are relevant.” (Footnotes omitted)
[21] Need I daresay that it is trite that a party seeking condonation must make
out a proper case for the court’s indulgence with reference to these
jurisdictional factors. The explanation for the delay must be full and
“reasonable enough to excuse the default.”7
[22] In this instance , and on the application of the deep-rooted condonation
principles, the applicants have failed to provide a substantive application
for condonation, notwithstanding missing the peremptory twenty (20) day
window period by several months. It is relevant to point out that the delay
is substantial. The applicants claim that the court order was only received
via email in April 2024 . This does not negate the irrefutable fact that they
had actual knowledge of the existence of the court order on 30 November
6 [2024] ZACC 10.
7 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye &
7 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye &
Lazer Institute [2014] ZACC 6; 2014 (3) SA 481 (CC); 2014 (5) BCLR 547 (CC) at para 82.
2023. This then, to my mind is the decisive date and from whence the
applicants were required to give a full and frank explanation for the
inordinate delay.
The sequence of affidavits
[23] Beyond the issue of the delay, the application suffers from a fatal
procedural irregularity regarding the sequence of the filing of affidavits
and the commissioning of same. Indispensable to the accentuation of this
procedural irregularity is the timeline of the applicants’ affidavits.
[24] To appreciate the import and sequence of affidavits in motion proceedings
a few observations are necessary. Affidavits in motion proceedings serve as
a primary medium for the placing of evidence before a court. Logically the
affidavits follow a sequence. Settled in our motion culture is the three set
rule pertinent to affidavits. Sequ entially, no further affidavits may be filed
without the leave of the court.
[25] In Hano Trading Hano Trading v J R 209 Investments (Pty) Ltd8, the court
stated that rule 6 of the Uniform Rules of Court:
‘“…sets out the sequence and timing for the filing of the affidavits by the respective
parties” and that “[u]unlike actions, in application proceedings the affidavits take the
place not only of the pleadings, but also of the essential evidence which would be led at
a trial. It is accepted that the affidavits are limited to three sets”.’
[26] The gateway of the motion procedure is the founding affidavit. The
reasoning that underscores the need for con firmatory affidavits to follow a
founding affidavit is sound. To properly understand the import of a
8 2013 (1) SA 161 (SCA) para 10. Zarug v Parvathie N.O. 1962 (3) SA 872 (D) at page 873.
founding affidavit when juxtaposed with confirmatory affidavits the
following is relevant. In motion proceedings, the founding affidavit is
primary evidenc e. Confirmatory affidavits follow a founding affidavit as
same are intended to confirm the accuracy of facts deposed to in the
founding affidavit and to avoid hearsay. It axiomatically follows that a
confirmatory affidavit must follow or be contemporaneous with a founding
affidavit.
[27] Applying these salutary principles to the present application, the following
evinces. The founding affidavit, by the sole director of the first applicant
was deposed to and commissioned on 30 April 2024 . The director of the
second applicant’s confirmatory affidavit was signed on 25 April 2024 and
commissioned on 30 April 2024 . Mokale’s confirmatory affidavit was
signed on 24 April 2024 and commissioned on 30 April 2024. No
plausible explanation is provided for these dates not coinciding. Our law is
replete with precedent which underscores the importance of litigants
exercising due care in the preparation and presentation of affidavits in
motion proceedings.
[28] Ex facie the papers there appears to be a glaring irregularity as regards the
commissioning of the affidavits which effects its cogency and impacts the
sequence of the filing of same. In our law it is impermissible for an
affidavit to be signed on one day and commissioned on another. The
signing and commissioning must occur as a single continuous event, which
amongst others requires that the deponent must sign the declaration in the
physical presence of the commissioner of oaths. These conflicting
timelines unexplained leads to the ineluctable conclusion that the
confirmatory affidavits were signed by the deponents and then
commissioned in the ir absence. Self-contained, the dates on which the
confirmatory affidavits were signed precede that of the founding affidavit.
[29] To put it simply , at the time the confirmatory affidavits were signed the
founding affidavit did not exist. Moreover, the regulatory procedure for the
commissioning of affidavits was not followed, which makes it questionable
whether the confirmatory affidavits c an be regarded as evidence.
Regulation 4(1) of the Regulations Governing the Administration of an
Oath or Affirmation makes it obligatory for the commissioner to certify the
document “below the deponent’s signature” confirming the manner, place
and date of declaration was taken. This date must coincide with the date
the deponent signed. In this instance this has not occurred. Crucially, there
is no affidavit of Pirukai who is best placed to provide factual affidavit
evidence relevant to the purported unlawfulness of the search and seizure.
[30] In the present instance, the sequence of affidavits was inverted which is
borne out by the dates. It is legally unsound for a deponent to confirm the
facts in the body of a founding affidavit that did not exist when the
confirmatory affidavit was so deposed. The inverted sequence of the
affidavits offends the three -set rule. Besides, the confirmatory affidavits
are meaningless legally as it leaves the core averments of the founding
affidavit as inadmissible hearsay. In the alternative the affidavits can
simply be disregarded as being non-compliant with Regulations Governing
the Administration of Oath or Affirmation. On both scores these
confirmatory affidavits have no evidential weight.
[31] Resulting from the applicant’s failure to seek formal condonation for a
significant delay and the fatal procedural irregularities in the affidavits, the
application must fail.
Costs
[32] Whilst costs are at the discretion of the court, the general principle is that
costs follow the result. I am unpersuaded that there exi sts any basis to
deviate from this principle.
Order
[33] Accordingly, I make the following order:
1. The application for the rescission of the forfeiture order of 16
November 2023 is dismissed.
2. The applicants shall pay the costs of the application jointly and
severally, the one paying the other to be absolved.
A REDDY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the applicants: Advocate H J Scholtz
Instructed by: Moshidi Inc.
Mahikeng
For first respondent: Advocate M R Mahlafore
Instructed by: The State Attorney,
Mahikeng