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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not reportable
Case no: M607/2020
In the matter between:
ABRAHAM CHEM BANDA
APPLICANT
And
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
RESPONDENT
Coram: Wessels AJ
Heard: 13 February 2026
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 15h00 on 24 March 2026.
Summary: Rescission of default forfeiture order – Prevention of Organised
Crime Act 121 of 1998, s 53(3) and (4) – Good cause – Applicant served with
preservation order on 2 March 2021 – Applicant filed defective notice of
intention to oppose not accompanied by aff idavit as required by s 39(5) –
Respondent’s attorneys gave applicant opportunity to cure defect – Applicant
failed to do so – Applicant thereafter terminated mandate of his attorneys and
instructed new attorneys – Applicant’s new attorney involved in moto r vehicle
accident – Applicant claimed he only discovered forfeiture order on 3 February
2022 – Held that applicant’s default was wilful – Applicant failed to provide
reasonably satisfactory explanation for failure to comply with s 39(5) –
Applicant also failed to demonstrate bona fide defence to forfeiture application
– Respondent’s founding affidavit set out extensive evidence linking property to
illegal gold dealing – Applicant’s response consisted of general denials without
substantiating evidence – Application dismissed with costs.
JUDGMENT
Wessels AJ
Introduction
[1] This is an application for the rescission of a forfeiture order granted by
this Court on 30 September 2021 under case number M607/2020. The applicant
seeks the return of cash in the sum of R90,434.00 and three motor vehicles,
namely an Isuzu KB LDV (regist ration F[...]), a Mercedes-Benz (registration
B[...]), and a Toyota Hilux (registration H[...]).
[2] The application is brought under Rule 42(1)(a) of the Uniform Rules of
Court, read with s 53(3) of the Prevention of Organised Crime Act1 (‘POCA’).
Background
[3] On 17 August 2020, members of the South African Police Service
conducted a search and seizure operation at the applicant’s residence in Khuma,
Stilfontein, pursuant to search warrants issued by the Stilfontein Magistrate’s
Court on 13 August 2020.
[4] During this operation, the police seized cash totalling R90,434.00 and
three motor vehicles. The applicant was arrested on the same day but was
released on bail on 21 August 2020.
[5] The applicant subse quently brought an urgent spoliation application
under case number UM174/2020, then represented by Kobus Burger Attorneys,
in this Court against the Minister of Police for the return of the seized vehicles.
Lephadi AJ dismissed that application on 17 September 2020.
[6] On 12 November 2020, the respondent obtained a preservation order
against the applicant under the present case number . This order was served on
the applicant on 2 March 2021. On 30 September 2021, the respondent obtained
a final forfeiture order against the applicant. The applicant launched this
rescission application on 28 February 2022.
1 Prevention of Organised Crime Act 121 of 1998.
Basis of the application
[7] The applicant seeks rescission on the grounds that his default in opposing
the forfeiture application was not wilful. He explains that after his spoliation
application was dismissed, he terminated the mandate of Kobus Burger
Attorneys and instructed Makgetha & Molemane Inc.
[8] On 12 November 2020, the respondent obtained a preservation order
against the applicant. This order was served on the applicant’s wife at his
residence on 2 March 2021.
[9] On 17 March 2021, Makgetha & Molemane Inc. filed a notice of
intention to oppose. The applicant states that he was advised by Mr Kenneth
Makgetha (‘Mr Makgetha’) that what the respondent had obtained against him
was an interim order to preserve his properties, and that the respondent would
have to comply with certain condi tions, after which a return date to hear the
granting of a final order would be set. According to the applicant, he understood
that he would have an opportunity to oppose the final order at that stage.
[10] On or about the end of March 2021, the applicant state s that he and Mr
Makgetha travelled to Sandton, Johannesburg, for a consultation with counsel.
He was advised that an affidavit would be settled and that he would be called in
to sign and commission it. He was not given any time frames, and so he waited.
[11] On 14 May 2021, the State Attorney wrote to Mr Makgetha , advising
that the notice of intention to oppose was defective because it was not
accompanied by the affidavit required by s 39(5) of POCA. The letter afforded
the applicant until 28 May 2021 to rectify the defect.
[12] On or about 20 May 2021, the applicant r eceived a telephone call from
Mr Makgetha. According to the applicant, Mr Makgetha advised him to
abandon his opposition to the granting of the final preservation order and to
wait for the respondent to bring a forfeiture order, after which he should oppose
it. The applicant states that he was taken aback by this advice, as there had been
no mention of any affidavit being settled, and he was given no reason for the
change in strategy.
[13] The applicant was evidently dissatisfied with this advice and decided to
seek other attorneys. On 28 May 2021, he appointed Moroenyane M Attorneys
to attend to his matter.
[14] The applicant instructed Mr Tumelo Motjope of Moroenyane M
Attorneys to oppose the preservation order . He states that despite numerous
attempts to obtain th e file from Makgetha & Molemane Inc, the file was only
made available on or about 2 July 2021.
[15] On 14 July 2021, having obtained the file, Mr Motjope addressed a letter
to the State Attorney, advising that Moroenyane M Attorneys would be coming
on record and requesting that the respondent advise on the status of the matter.
The applicant states that the respondent did not respond to this letter.
[16] On 17 July 2021, Mr Motjope was involved in a serious motor vehicle
accident, which resulted in the fatality of a passenger in his vehicle. Mr Motjope
himself was seriously injured and was admitted to hospital with multiple
fractures. He was hospitalised for abo ut three weeks and was wheelchair -bound
for approximately two months thereafter. The applicant states that Mr Motjope
wished not to attach medical records unless the respondent raised the matter.
[17] As a result of Mr Motjope’s accident, the applicant decided to take no
further action against the final preservation order and resolved to wait for the
respondent to bring a forfeiture application, which he would then oppose. The
applicant states that his understanding at all material times was that the
application he was litigating with the respondent related to the final granting of
a preservation order. This understanding, he says, was based on the legal advice
he had received from Mr Makgetha, and he continued with this understanding
when he instructed Moroenyane M Attorneys.
[18] On 30 September 2021, the respondent obtained a final forfeiture order
against the applicant.
[19] On or about 20 December 2021, the applicant, together with Mr Motjope
and another person, visited the Director of Public Prosecutions in Mahikeng t o
learn the status of the matter. They met with an advocate named Manyako, who
informed them that he was unaware of the status and that they should write him
a letter, which he would forward to another advocate directly involved in the
matter.
[20] On or about 24 January 2022, the applicant instructed his corresponden t
attorneys to uplift the court file and make copies. It was only on 3 February
2022, upon receiving the copies, that the applicant learned that a forfeiture order
had been granted against him on 30 September 2021. He states that this was the
first time he learned of the forfeiture order and that the application being
litigated since early 2021 was a forfeiture application, not a final preservation
order. He states categorically that had he been aware that the application against
him was a forfeiture application and, more importantly, when it was set down,
he would have done everything in his power to oppose it.
[21] The applicant contends that the respondent’s conduct in litigation added
to the confusion. He points to the existence of two separate preservation
applications: one under case number UM185/2020 against a co -accused, Fati
Mbambo and one under the present case number against him. He notes that a
preservation order was granted under UM185/2020 on 16 September 2020, but
the respondent again approached the court and obtained another preservation
order under M607/2020 on 12 November 2020. He states that this situation with
parallel applications confused him and his legal representatives.
[22] The applicant further notes that on 22 September 2021, the respondent
filed a practice note under the present case number in preparation for the
hearing of the forfeiture order. He points to practice notes filed by the
respondent on 21 April 2021 and 1 June 2021 under case number UM185/2020,
which he says referred to a ‘preservation application ’ as late as June 2021,
reinforcing his mistaken belief that the proceedings were still at the preservation
stage.
[23] The applicant submits that he has a bona fide defen ce to the forfeiture
application. He claims that the vehicles were purchased with legitimate funds
derived from his nightclub and promotions business, and that his tavern
generated the cash seized . He contends that the allegations against him in the
respondent’s founding papers are unsubstantiated.
Respondent’s case
[24] The respondent opposes the rescission application. The respondent
initially raised a point in limine regarding the applicant’s filing under the
incorrect case number, but the applicant subsequen tly filed a corrected
application under the present case number, which is now before this Court.
[25] On the merits, the respondent argues that the applicant’s failure to oppose
the forfeiture application was wilful. The applicant was properly served with the
preservation order on 2 March 2021. The order contained clear instructions
regarding the steps required to oppose a forfeiture order.
[26] The respondent further notes that on 14 May 2021, its attorneys wrote to
Makgetha & Molemane Inc, advising that the notice of intention to oppose was
defective because it was not accompanied by the affidavit required by s 39(5) of
POCA. The applicant was given until 28 May 2021 to rectify the defect. He
failed to do so.
[27] The respondent submits that the applicant’s explanation r egarding the
alleged confusion between case numbers is unpersuasive. The preservation
order was served under the case number of the present application
(M607/2020), and the applicant’s own notice of intention to oppose was filed
under that case number. The applicant had a clear obligation to respond to the
pending forfeiture application.
[28] The respondent further submits that the applicant has not demonstrated a
bona fide defence, pointing to extensive evidence of his involvement in illegal
gold dealing and money laundering.
Issues for Determination
[29] The following issues fall for determination: whether the applicant has
established that his default was not wilful ; whether the applicant has
demonstrated a bona fide defence; whether the application was brought within a
reasonable time.
Legal principles
[30] The forfeiture order against the applicant was granted by default under s
53 of POCA. Section 53(1) provides that where the National Director of Public
Prosecutions applies for a forfeiture order by defaul t and the court is satisfied
that no person has appeared on the date of the hearing and that all persons who
entered appearances have knowledge of the notices given, the court may make
an order by default which it could have made under ss 50(1) and (2).
[31] Section 53(3) of POCA provides the mechanism for rescission of such a
default order:
‘Any person whose interest in the property concerned is affected by the forfeiture order or
other order made by the Court under subsection (1) may, within 20 days after he or she has
acquired knowledge of such order or direction, set the matter down for variation or rescission
by the court.’
[32] Section 53(4) provides that the court may, upon good cause shown, vary
or rescind the default order or give some other direction on suc h terms as it
deems appropriate.
[33] The concept of ‘good cause’ in s 53(4) of POCA must be interpreted in
light of the common law principles applicable to rescission applications. In De
Wet and Others v Western Bank Ltd 2 the Supreme Court of Appeal undertook a
comprehensive review of the common law powers of a court to rescind default
judgments. It established the principles that govern the exercise of this
discretion.
[34] The Court then set out the requirements that an applicant for rescission
must satisfy3:
‘The onus of showing the existence of sufficient cause for relief was on the applicant in each
case, and he had to satisfy the Court, inter alia, that there was some reasonably satisfactory
explanation why the judgment was allowed to go by default.’
[35] The court further emphasised 4 that applicants who are ‘the author s of
their own problems’ will not be granted relief. The court endorsed the finding
that ‘it would be inequitable to visit the other party to the action with the
prejudice and inconvenience flowing from such conduct.’
[36] Applying th e principles enunciated in De Wet to the present case, the
applicant bears the onus of showing a reasonably satisfactory explanation for
his default. He must satisfy the Court that his default was not wilful and that
there are considerations of justice and fairness that warrant the rescission of the
forfeiture order. The Court must also have regard to the prejudice that the
respondent would suffer if the order were to be set aside, and to the principle
that finality in litigation is an important consideration.
2 De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A).
3 Ibid 1042 H.
4 Ibid 1044 D.
[37] In interpreting the provisions of Chapter 6 of POCA, the Constitutional
Court in National Director of Public Prosecutions v Mohamed NO and Others 5
provided crucial guidance. The court described the purpose of Chapter 6 at
paragraph 15 as follows:
‘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.’
[38] In Mohamed6 the court explained the distinction between Chapter 5 and
Chapter 6 as follows:
‘Chapter 5 (comprising sections 21 to 36) 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
instrumentalities used in crime, but is not conviction -based; it may be invoked even when
there is no prosecution.’
[39] In National Director of Public Prosecutions v R O Cook Properti es (Pty)
Ltd7 the Supreme Court of Appeal provided further guidance in stating the
following8:
‘It follows that we endorse broadly the conclusion in those cases, following the first -instance
decision in NDPP v Carolus and others, where a narrow rather than a wide interpretation of
the definition of ‘instrumentality’ was held appropriate. Here, despi te its different (and pre -
constitutional) context, we find practical assistance in S v Bissessue, where a magistrate
5 National Director of Public Prosecutions v Mohamed NO and Others (CCT44/02) [2003] ZACC 4; 2003 (1)
SACR 561; 2003 (5) BCLR 476; 2003 (4) SA 1 (CC) (3 April 2003) para 15.
6 Para 16.
7 National Director of Public Prosecutions v R O Cook Properties (Pty) Ltd (260/03) [2004] ZAS CA 36 (13 May
2004).
8 Para 32.
declared forfeit a motor vehicle and fishing rods used in fishing without a licence under an
ordinance that, in addition to a criminal pena lty, required the court to declare any article used
‘in, for the purpose of, or in connection with the commission of the offence’ forfeit. On
appeal the forfeiture of the fishing rods was upheld, but that of the vehicle was set aside. The
Court held that ‘ to qualify for forfeiture the thing must play a part, in a reasonably direct
sense, in those acts which constitute the actual commission of the offence in question’. The
same in our view applies to ‘instrumentality of an offence’. As suggested in NDPP v
Prophet, the determining question is whether there is a sufficiently close link between
the property and its criminal use, and whether the property has a close enough
relationship to the actual commission of the offence to render it an instrumentality.
Every case will of course have to be decided on its own facts. ’ (footnotes omitted and own
emphasis applied)
[40] Furthermore, in Cook Properties9, the Court emphasised:
‘Mohamed (1) pointed out that chapter 6’s primary focus is not on wrongdoers, ‘but on
property that has been used to commit an offence’ or which constitutes the proceeds of crime.
A criminal conviction is not a condition precedent to forfeiture, and property may be forfeited
even where no charge is pending.’
[41] These authorities establish two principles fundamental to the present
application: First, that the forfeiture under Chapter 6 is independent of criminal
proceedings, and that the withdrawal of criminal charges against the applicant in
September 2021 did not automatically entitle him to the rescission of the
forfeiture order. Second, the focus o f Chapter 6 is on the property itself, not on
the owner’s culpability.
Wilful default
9 Para 20.
[42] The applicant bears the onus of providing a reasonable and credible
explanation for his failure to oppose the forfeiture application.
[43] The preservation stage and the forfeiture stage are not independent
proceedings. They are part of a single, integrated scheme. A party that fails to
participate properly at the preservation stage, by not entering a valid appearance
in terms of s 39(5), cannot later claim that the forfeiture stage caught them by
surprise.
[44] The preservation order served on the applicant on 2 March 2021 was not
a mere preliminary step. Section 39 of POCA required any person with an
interest in the property to enter an appearance within 14 days of service,
accompanied by an affidavit setting out the basis of their defence. This was the
applicant’s statutory opportunity to place his case before the court.
[45] The applicant filed a notice of intention to oppose on 17 March 2021,
under t he correct case number. This demonstrates that he was aware of the
proceedings and understood his obligation to respond. However, his notice was
defective because it was not accompanied by the affidavit required by s 39(5).
[46] On 14 May 2021, the respondent’s attorneys wrote to Makgetha &
Molemane Inc, advising that the notice was defective and giving the applicant
until 28 May 2021 to cure it. The applicant did not respond. Instead, he
terminated his mandate and instructed new attorneys.
[47] The applicant’s expla nation that Mr Makgetha advised him to abandon
opposition and wait for a forfeiture application is difficult to reconcile with the
fact that his own notice of intention to oppose had already been filed. Moreover,
the respondent’s attorneys’ letter put him on notice that his opposition was
defective and required attention.
[48] Regarding Mr Motjope’s accident in July 2021, the applicant was not
personally incapacitated. By that time, the 14 -day period for entering an
appearance in terms of s 39(4) had long expire d. The preservation order had
been in force for more than four months. The applicant had already failed to
take the necessary steps to place his defence before this Court.
[49] The applicant has provided no medical records or other corroborating
evidence regarding Mr Motjope’s injuries. The respondent put him to the proof
of his allegations, and his failure to provide supporting evidence is a significant
omission.
[50] I find that the applicant’s default was wilful. His failure to comply with s
39(5) was not due to any confusion or misfortune, but to a deliberate decision to
abandon his opposition based on advice that, if given, was plainly inconsistent
with the statutory scheme.
Bona fide defence
[51] Even if the applicant had established that his default w as not wilful, he
must still demonstrate a bona fide defence.
[52] The respondent’s founding affidavit in the forfeiture application set out
extensive evidence linking the property to illegal gold dealing, including two
controlled purchases of state gold by th e applicant, the discovery of gold
wrappings and refining equipment at his properties, cash payments for vehicles
made from different bank branches, and a bank statement analysis showing that
only 10% of his expenditure related to his legitimate business.
[53] The applicant’s response in his rescission affidavit is largely a general
denial. He does not provide documentary evidence to explain the cash payments
for the vehicles, nor does he account for the items found during the search that
are associated with gold refining. He has not demonstrated that his income from
legitimate sources was sufficient to fund the purchase of the vehicles.
[54] The principles established in Mohamed10 and Cook Properties 11 are
directly relevant to the facts of the present application. The focus of Chapter 6 is
on the property itself, not the owner’s culpability. The applicant cannot resist
forfeiture merely by asserting his innocence. He must adduce evidence to rebut
the respondent’s case that the property constitutes the p roceeds of unlawful
activities or an instrumentality of an offence.
[55] I therefore find that the applicant has failed to demonstrate a bona fide
defence.
Whether the application was brought within a reasonable time
[56] The applicant claims he only became aware of the forfeiture order on 3
February 2022, when his attorneys uplifted the court file. His rescission
application was filed on 28 February 2022. Section 53(3) requires that an
application for rescission be brought within 20 days after the applicant has
acquired knowledge of such an order.
10 Ibid fn5.
11 Ibid fn7.
[57] On the applicant’s own version, his rescission application was filed
within the 20 -day period prescribed by s 53(3). The application was therefore
brought within a reasonable time. However, the significance thereof must be
assessed in light of the two-stage structure of Chapter 6 and the applicant’s prior
conduct. The forfeiture order did not emerge in a vacuum. It was the logical
conclusion of a process that had been underway for ov er a year, and in which
the applicant had been given clear notice and multiple opportunities to
participate.
[58] Affected parties are entitled to a full hearing at the forfeiture stage if they
have entered an appearance at the preservation stage. Section 39(3) and (4) of
POCA make this explicit. The applicant’s failure to comply with s 39(5) meant
that he was not entitled to notice of the forfeiture application under s 48(2), and
the court was entitled to grant a default forfeiture order under s 53(1).
[59] The 20-day period in s 53(3) is clearly designed to protect persons who,
through no fault of their own, did not receive notice of the forfeiture
application. It is not intended to allow a person who deliberately failed to
participate at the preservation stage to b elatedly resurrect opposition after a
forfeiture order has been granted.
[60] In this case, even if it is accepted that the applicant had knowledge of the
forfeiture order only on 3 February 2022 , it does not cure his earlier failure to
comply with the statutory requirements at the preservation stage. The forfeiture
order was lawfully granted by default because the applicant had not validly
entered an appearance in terms of s 39.
[61] While the application was formally brought within the 20 -day period, the
weight to be attached to this fact is diminished by the applicant’s prior conduct.
The applicant cannot ignore the preservation stage, fail to cure a defective
notice, and then claim that the forfeiture order came as a surprise. The forfeiture
order was the predictable consequence of the applicant’s own inaction.
[62] Given my finding that the applicant’s default was wilful and that he has
failed to demonstrate a bona fide defence, his compliance with the 20 -day
period does not, on its own, establish good cause for rescission.
Conclusion
[63] The applicant has failed to establish that his default was not wilful and
has failed to demonstrate a bona fide defence. There is no good cause shown for
the rescission of the forfeiture order.
Order
[64] Accordingly, I make the following order:
1. The application for rescission of the forfeiture order granted
under case number M607/2020 on 30 September 2021 is
dismissed.
2. The applicant is to pay the costs of this application on the party -
and-party Scale B.
____________________________
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
For applicant :Mr T Motjope
Instructed by :Moroenyane M Attorney
:Mahikeng
For respondent :Adv Mr Mahlafore
Instructed by :State Attorney
:Mahikeng