IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-110053
DATE: 21 APRIL 2026
In the matter between:
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant
and
NOMSA WELHERMINA MBALATI First Respondent
WOMEN AGAINST POVERTY AND HUNGER (PTY) LTD Second Respondent
KELEBOGILE PRECIOUS PHUMO Third Respondent
ITUMELENG THAI Fourth Respondent
THULISILE MILDREND MBAMBO Fifth Respondent
BUSISIWE PRIMROSE HORACIO Sixth Respondent
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: ___ 21 April 2026
Signature:_
N T R
2
NOMAKHOSI ZWANE Seventh Respondent
GUGU PRINCESS CELE Eighth Respondent
MPHO HAZEL PATSA MOKOENA Ninth Respondent
AGNES MOFOKENG Tenth Respondent
JUDGMENT
NYATHI, J:
Introduction
[1] This is an opposed application for leave to appeal against the whole of the
judgment and order handed down by this Court on 26 November 2025. In that
judgment, a preservation of property order granted ex parte on 30 September
2024 in terms of section 38 of the Prevention of Organised Crime Act 121 of
1998 (“POCA”) was reconsidered and set aside; the preservation of the
Respondents’ bank accounts was lifted; and the Applicant was ordered to pay
costs on an attorney and client scale.
[2] The Applicant seeks leave to appeal to the Supreme Court of Appeal,
alternatively to the Full Court. The Respondents oppose the application and
contend that the Applicant has failed to satisfy the elevated threshold prescribed
by section 17(1) of the Superior Courts Act 10 of 2013.
3
The statutory test
[3] Section 17(1)(a) of the Superior Courts Act provides that leave to appeal
may only be granted where the court is of the opinion that—
(a) the appeal would have reasonable prospects of success; or
(b) there is some other compelling reason why the appeal should be heard.
[4] It is now settled that this test is more stringent than the pre-existing
standard. An applicant must demonstrate a sound, rational basis for concluding
that another court will, not merely might, come to a different conclusion. A mere
disagreement with the reasoning or outcome does not suffice. In MEC for
Health, Eastern Cape v Mkhitha and Another [2016] ZASCA 176; 2017 (5) SA
44 (SCA) The SCA authoritatively stated:
“An applicant for leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic chance of success on appeal. A mere possibility of
success, or an arguable case, is not enough.”
Background (briefly)
[5] The preservation order of 30 September 2024 was obtained ex parte. It
was published in the Government Gazette only on 1 November 2024. Service
on the Respondents was effected months later, in piecemeal fashion, and in
several instances not at all.
4
[6] A reconsideration application brought by the Second and Third
Respondents was previously heard by Bam J, who issued procedural directives
but did not finally determine the status of the preservation order vis-à-vis all
affected parties.
[7] A further reconsideration application was thereafter brought by
respondents who had not been properly served and who had not been heard at
all. That application served before this Court and culminated in the judgment
now sought to be appealed.
The grounds of appeal
[8] The Applicant advances, in essence, the following grounds:
• that this Court applied an incorrect test under Rule 6(12)(c);
• that it impermissibly entertained a second reconsideration application;
• that it misapplied sections 39 and 40 of POCA;
• that it incorrectly found that no forfeiture application was pending;
• that it violated the principle of res judicata; and
• that it wrongly granted a punitive costs order.
I deal with these contentions collectively in determining whether the statutory
threshold has been met.
5
Rule 6(12)(c) and the reconsideration jurisdiction
[9] Rule 6(12)(c) exists to protect persons against whom orders are granted in
their absence. It permits such parties to approach the court urgently for
reconsideration. The underlying pivot of the rule is the absence of the affected
party when the order was granted. (See ISDN Solutions (Pty) Ltd v CSDN
Solutions CC 1996 (4) SA 484 (W) at 486I–487A; Kirpal v Peters In Re: Peters
v Kirpal (unreported, GP case no 32823/2021 dated 23 June 2022) at
paragraph [13].)
[10] In the present matter, several of the Respondents were neither served
with the preservation order nor afforded an opportunity to be heard prior to the
intervention sought from this Court. The contention that they were bound by
proceedings to which they were not party is unsustainable.
[11] The Applicant’s submission that reconsideration was confined strictly to
the four corners of the papers before Motha J is incorrect. The authorities make
it plain that a court hearing a reconsideration may consider whether the order
can lawfully stand in light of all relevant facts placed before it, including whether
statutory safeguards were complied with and whether constitutional prejudice
persists. (See The Fonarun Naree: Afgri Grain Marketing (Pty) Ltd v Trustees,
Copenship Bulkers A/S (In Liquidation) 2024 (1) SA 373 (SCA)
[12] The complaint is, in truth, directed not at the test applied, but at the
outcome reached. That does not constitute a misdirection.
6
Alleged second reconsideration and res judicata
[13] The argument that this Court impermissibly entertained a second
reconsideration is misconceived. The earlier proceedings did not involve all the
Respondents now before court, nor did they result in a final determination of
their rights.
[14] The requirements for res judicata — same parties, same cause of action,
and a final judgment — were not met. In any event, the doctrine cannot be
invoked to shield procedural irregularity or unconstitutional conduct, particularly
where affected parties were denied a hearing through defective service.
Sections 39 and 40 of POCA
[15] Section 39 of POCA obliges the NDPP to give notice of a preservation
order “as soon as practicable”. This requirement is not ornamental. It is a critical
statutory safeguard designed to limit the intrusive effect of an ex parte order and
to enable affected persons to exercise their rights.
[16] In this matter, publication of the order occurred more than a month after it
was granted. Service occurred several months later, sporadically, and, for some
Respondents, not at all. No satisfactory explanation was provided for these
delays.
7
[17] Section 40 provides that a preservation order expires 90 days after
publication unless there is a forfeiture application pending before court. Proper
institution of forfeiture proceedings necessarily entails both filing and service.
[18] This Court found, on the facts, that no forfeiture application had been
properly instituted within the statutory period. That conclusion was grounded in
the record and in the Applicant’s own concessions regarding service.
[19] The expiry of a preservation order in terms of section 40 is an objective
statutory consequence. Once the order had lapsed, it could not be resuscitated
by belated procedural steps.
Prospects of success and compelling reasons
[20] The issues raised by the Applicant are predominantly factual and
discretionary. Appellate courts are slow to interfere with findings of fact or the
exercise of a discretion unless a material misdirection is shown.
[21] No such misdirection has been demonstrated. On the contrary, the
judgment accords with other decisions of this Division, on materially similar
facts, in which delays in service and publication were held to render
preservation orders unsustainable and constitutionally infirm.
[22] The Applicant has also failed to identify any novel legal issue, conflicting
authority, or broader public interest consideration that would constitute a
compelling reason for the appeal to be heard.
8
Costs
[23] The award of costs on an attorney and client scale was an exercise of a
true discretion. It was informed by the Applicant’s persistent non-compliance
with statutory duties, its failure to provide frank explanations in an ex parte
setting, and the resultant infringement of the Respondents’ constitutional rights.
[24] No basis has been shown for appellate interference with that discretion.
(Public Protector v South African Reserve Bank 2019 (6) SA 253 (SCA).)
Conclusion
[25] The Applicant has failed to demonstrate that the appeal would have
reasonable prospects of success or that there exists any compelling reason for
leave to be granted, as contemplated in section 17(1) of the Superior Courts
Act.
Order
The following order is made:
1. The application for leave to appeal is dismissed.
2. The Applicant is ordered to pay the costs of the application for leave to
appeal on a party and party scale B, including the costs of counsel.
9
JS NYATHI
Judge of the High Court
Gauteng Division, Pretoria
HEARD ON: 10 April 2026
JUDGMENT DATE: 21 April 2026
FOR THE APPLICANT: Adv. S.
Chikuni; with Adv M. Mawelela
INSTRUCTED BY: State Attorney, Pretoria
FOR THE RESPONDENTS:
Adv A. Kotze
INSTRUCTED BY:
Maseya Attorneys,
Pretoria
10
Delivery: This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand-down is deemed to be 21 April 2026.