IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
NTHABISENG JELLY SELABE
and
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
DINGAAN DAVID SELABE
In re:
Reportable
Case No: M405/2014
Applicant
First Respondent
Second Respondent
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
and
Applicant
DINGAAN DAVID SELABE Respondent
CORAM: HENDRICKS JP
Heard: 28 May 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 set for 1 0h00 on 19 June 2026.
Summary: Rescission application - POCA forfeiture order - applicant not
cited or served in original forfeiture proceedings despite being the
community of property spouse of the respondent therein - whether
rescission available under Rule 42(1 )(a) of the Uniform Rules - whether
section 49 of POCA is available post-judgment - applicant not a party to
original proceedings, section 49 inapplicable - non-joinder of community
of property spouse whose interest was known to the NDPP constitutes
erroneous granting in the absence of an affected party - section 52( 1} of
POCA (innocent owner) - factual dispute on papers cannot be resolved
against applicant on Plascon-Evans - forfeiture order set aside insofar as
it affects the applicant's undivided half-share in the joint estate - matter
referred for further hearing on section 52( 1} innocent owner application -
costs reserved.
JUDGMENT
HENDRICKS JP:
[1] This is an application for the rescission and setting aside of a
forfeiture order granted by this Court on 7 June 2018 in proceedings
brought by the National Director of Public Prosecutions ("the
NDPP") under Chapter 6 of the Prevention of Organised Crime Act
121 of 1998 ("POCA").1 The applicant, Nthabiseng Jelly Selabe, was
not a party to those proceedings. She is the wife of the second
respondent in the original forfeiture proceedings, Dingaan David
1Prevention of Organised Crime Act 121 of 1998 ("POCA").
2
Selabe, and was married to him in community of property at the time
the forfeiture order was granted. The assets forfeited by that order
include a dwelling house in Majemantsho Village and a Land Rover
Range Rover motor vehicle, which formed part of the joint estate.
The forfeiture therefore directly and materially affected her
proprietary interests.
[2] The NDPP opposes the application. It contends, in summary, that
the applicant had constructive knowledge of the forfeiture
proceedings through the publication of the preservation order in the
Government Gazette; that she was not an innocent owner of the
assets but a willing participant in the unlawful activities of her
husband; and that the rescission application is an impermissible
attempt to bring in a late appearance under section 49 of POCA by
the back door, after judgment has already been given. The second
respondent, Dingaan David Selabe, did not participate in the
rescission application and no appearance was entered on his
behalf.
BACKGROUND
[3] On 25 September 2014, Gura J granted an ex parte preservation
order under section 38 of POCA in respect of assets belonging to
the second respondent. The assets preserved included several
motor vehicles and an immovable property, a house built by the
second respondent at Majemantsho Village, Mafikeng, which was
occupied by both the second respondent and the applicant as their
matrimonial home. A curator bonis was appointed under the
preservation order. The preservation order was served on the
second respondent and published in the Government Gazette on 28
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November 2014. The applicant was not cited, served, or otherwise
notified of the preservation order.
[4] On 4 February 2015, the NDPP applied for a final forfeiture order
under section 48 of POCA. The application cited only the second
respondent and sought forfeiture of the dwelling house and of a
Land Rover Range Rover motor vehicle bearing registration number
HW 622 NW, being the two assets remaining under the
preservation order. After numerous postponements, the matter
came before Kgoele J ( as she then was) on 30 November 2017.
Kgoele J postponed the matter to 17 May 2018 and directed the
NDPP to file a supplementary affidavit addressing the ownership of
the land on which the house was built and explaining how the
vehicle, which was still subject to a finance agreement with
WesBank, could be forfeited to the State.
[5] Following argument on 17 May 2018, this Court delivered judgment
on 7 June 2018 and granted the forfeiture order. The order declared
forfeited to the State under section 50(1) of POCA: (a) the Land
Rover Range Rover (HW 622 NW); and (b) the dwelling house at
Majemantsho Village. In view of the fact that the house was situated
on communal land owned by the Barolong Boora Tshidi Traditional
Council, paragraph 5 of the order provided that "the forfeiture of the
house is subject to the exclusion of any interest of the innocent
owner of the land/house" and directed, under section 52(2) of
POCA, that ownership of the land and house shall revert to the
Barolong Boora Tshidi Traditional/Tribal Council, to be utilised for
the benefit of the people of Majemantsho Village. Paragraph 7 of the
order directed that any person whose interest in the forfeited
property is affected by the order may, within 20 calendar days after
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acquiring knowledge of the order, set the matter down for variation
or rescission.
[6] The applicant is an adult female businesswoman residing at
Mosiane View Village, Majemantsho, Mafikeng. She is married to
the second respondent in community of property, the parties having
been married on 20 October 2007. In terms of their marriage in
community of property, the applicant and the second respondent
share equally in all assets and liabilities constituting the joint estate.
Both the house in Majemantsho Village and the Land Rover were
part of that joint estate.
[7] As alluded to, the applicant was not cited as a party to either the
preservation order application or the forfeiture application. She was
neither served with any process in those proceedings nor otherwise
notified of them. She avers that she first learned of the forfeiture
judgment when the second respondent showed her a copy of it on
18 June 2018. The NDPP's own supporting affidavit in the forfeiture
proceedings, however, had identified the applicant by name as the
wife of the second respondent.
[8] The applicant, upon learning of the judgment, consulted the second
respondent, who advised her that he had appointed attorneys to
appeal the matter and that she should not be concerned. She was
nonetheless troubled by the fact that assets forming part of the joint
estate had been forfeited without her knowledge or participation.
She avers that she consulted her own attorneys on 26 July 2018
and instructed them to launch the present rescission application.
The Notice of Motion was filed on 31 August 2018.
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[9] The NDPP filed an answering affidavit on 21 September 2018. The
second respondent filed no papers. The applicant filed a replying
affidavit on 28 November 2024. The matter was set down and
removed from the roll on multiple occasions between 2018 and
2024, and was ultimately heard by me on 28 May 2026. Both parties
filed heads of argument; the NDPP additionally filed supplementary
heads on 6 May 2026.
[1 O] The applicant's case, briefly stated, is that she had a direct and
material proprietary interest in the forfeited assets by virtue of her
marriage in community of property to the second respondent; that
the NDPP knew of her existence and her relationship to the second
respondent when the forfeiture application was brought; that the
failure to cite and serve her in those proceedings deprived her of the
opportunity to oppose the forfeiture and to advance an innocent
owner claim under section 52( 1) of POCA; and that the forfeiture
order, insofar as it affects her share in the joint estate, was
erroneously granted in her absence within the meaning of Rule
42(1 )(a) of the Uniform Rules of Court.
[11] The applicant further contends that the house was built from
legitimate funds accumulated by herself and the second
respondent, including the proceeds of the sale of a previous house
in Ganyesa, her income from importing and selling clothing, and the
second respondent's stipend as a minister of religion and donations
received in that capacity. She states that it took seven years to
complete the house because it was built solely from the couple's
own earnings. She maintains that she is an innocent co-owner
whose interest in the joint estate should be excluded from the
forfeiture order under section 52( 1) of POCA.
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[12] In respect of the vehicle, the applicant avers that although it was
registered in the name of the second respondent, it formed part of
the joint estate and was financed through WesBank with monthly
instalments paid from the joint estate. She further submits that the
order of Kgoele J to the NDPP to explain how a vehicle under
finance could be forfeited to the State was never adequately
addressed.
[13] The NDPP resists the application on the following principal grounds.
First, the NDPP contends that the applicant had constructive
knowledge of the preservation order by reason of its publication in
the Government Gazette on 28 November 2014. It is submitted that
the applicant's failure to take note of the Gazette publication and to
enter an appearance in terms of section 39(3) of POCA was at her
own risk. Second, the NDPP contends that section 49 of POCA
provided the applicant with the appropriate remedy, an application
for leave to enter a late appearance, and that the rescission
application is in truth a section 49 application brought after
judgment, which is impermissible. In terms of section 49(2), an
application for leave to enter a late appearance must be brought
before judgment is given. Third, the NDPP contends that the
applicant was not an innocent owner but a knowing participant in the
second respondent's criminal enterprise who actively harboured
and abetted him after the commission of the offences. It is further
averred that the applicant has been indicted as a co-accused with
the second respondent in the related criminal trial. The NDPP
submits that the applicant cannot claim an innocent interest in
assets that are the proceeds of unlawful activities.
[14] The issues arising for determination are:
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(a) Whether the correct procedural mechanism for the application
is Rule 42(1 )(a) of the Uniform Rules of Court; section 54 of
POCA; or both, and whether the application is timeously
brought.
(b) Whether the applicant has locus standi to bring the
application.
( c) Whether section 49 of POCA is available to or applicable to
the applicant.
(d) Whether the forfeiture order was erroneously granted in the
absence of the applicant as an affected party.
( e) Whether, on the papers, the applicant can establish that she
is an innocent co-owner of the forfeited assets for the
purposes of section 52( 1) of POCA.
(f) What is the appropriate form of relief.
[15] Rule 42(1 )(a) of the Uniform Rules provides that the court may, in
addition to any other powers it may have, upon application of any
party affected, rescind or vary an order or judgment erroneously
sought or erroneously granted in the absence of any party affected
thereby. It is well established that an order is "erroneously granted
in the absence" of a party when a party who has a direct and material
interest in the subject matter of the proceedings was not before the
court, and the court would not have granted the order in the same
terms, or at all, had that party been present and had an opportunity
to be heard.
[16] Section 54(1) of POCA provides a separate and specific statutory
mechanism for rescission of a forfeiture order. It reads: "A person
whose interest in property is affected by a forfeiture order may apply
8
to the High Court for an order varying or rescinding the forfeiture
order not later than 20 days after the person concerned has
acquired knowledge of the forfeiture order." Paragraph 7 of the
forfeiture order itself replicated this 20-day requirement.
[17] The Notice of Motion in the present application was filed on 31
August 2018. The applicant avers that she first acquired knowledge
of the forfeiture order on 18 June 2018. The Notice of Motton was
therefore filed some 74 days after, well outside the 20-day period in
section 54(1 ). To the extent that the applicant relies on section 54,
the application is out of time and she would require condonation,
which has not been sought in express terms in the founding affidavit.
[18] The applicant is, however, not confined to section 54 and may rely
on Rule 42(1 )(a). POCA does not expressly exclude the general
rescission jurisdiction of the High Court under the Uniform Rules of
Court. POCA proceedings are civil proceedings and the ordinary
rules of civil procedure govern them to the extent not displaced by
POCA. Where a perso~ was never a party to proceedings at all, was
never cited, served, or before the court in any capacity, Rule
42(1 )(a) operates independently of any limitation period that POCA
may impose on those who were parties or who received notice of
the proceedings. The 20-day period in section 54 does not preclude
a Rule 42(1 )(a) application by someone who had no participation in
the original proceedings whatsoever. The delay of approximately 7 4
days before filing, and the longer delay in prosecuting the
application to finality, are nonetheless factors relevant to the
exercise of this Court's discretion.
[19] Section 49(1) of POCA permits a person who did not enter an
appearance in terms of section 39(3), that is, a person served with
9
a preservation order who failed to enter an opposition to the
forfeiture application, to apply for leave to enter a late appearance.
The remedy is expressly confined by section 49(2) to applications
brought before judgment is given. The present application was
launched after judgment.
[20] Section 49 applies to a person who received notice of the
proceedings, (whether by service of the preservation order under
section 39(3) or otherwise), but failed to enter an appearance in
time. The applicant here was never a party; was never served with
the preservation order; and was never placed in a position where
she could have entered an appearance in terms of section 39(3).
Section 49 regulates persons who were, at least constructively,
within the scope of the proceedings. The applicant was entirely
outside those proceedings. The NDPP's submission that this is a
disguised section 49 application conflates two distinct situations and
is, with respect, without merit. Rule 42( 1 )(a) is the appropriate
mechanism.
[21] Insofar as locus standi is concerned, the applicant's standing is
beyond dispute. She is the community of property spouse of the
second respondent. The legal consequence of a marriage in
community of property is the creation of a joint estate in which both
spouses share equally. All assets and liabilities forming part of that
joint estate belong jointly to both spouses, irrespective of in whose
name the asset is registered or whether only one spouse was the
active party to the transaction by which the asset was acquired. The
house in Majemantsho Village and the Land Rover were both
acquired during the subsistence of the marriage in community of
property and accordingly formed part of the joint estate. The
10
forfeiture of these assets therefore directly extinguished the
applicant's undivided half-share interest in them.
[22] Section 39(3) of POCA requires that the applicant for a forfeiture
order give notice of the application to every person known to have
an interest in the property. The NDPP's supporting deponent in the
original proceedings had expressly referred to the applicant as the
wife of the second respondent. The NDPP accordingly knew, or
ought to have known, that the applicant had an interest in the subject
matter of the forfeiture application by virtue of the community of
property marriage. The failure to give her notice as required by
section 39(3) was a breach of the statute and a procedural
irregularity of substance.
[23] Having regard to the applicant's undivided half-share in the joint
estate, and to the statutory obligation on the NDPP to give notice to
all persons with an interest in the forfeited property, I am satisfied
that the forfeiture order was erroneously granted, insofar as it
concerned the applicant's half-share, in her absence. The applicant
was an affected party who had a direct proprietary interest in the
forfeited assets. She was not before the court. She was not afforded
an opportunity to oppose the forfeiture or to claim the protection of
section 52( 1) as an innocent co-owner. The requirements of Rule
42( 1 )(a) are accordingly satisfied.
[24] The question of Government Gazette publication does not assist the
NDPP in this regard. The Gazette publication of the preservation
order may well have been sufficient notice to the second respondent
and to any member of the general public with an interest in the
property. It does not. however, constitute adequate notice to a
specific identified individual who had been named in the NDPP's
11
own papers as the wife of the respondent and who had a legal
interest in the property by reason of a registered marriage in
community of property. The statutory obligation in section 39(3) is
to give notice to "every person known to have an interest in the
property'', a specific, targeted obligation. Gazette publication serves
the purpose of notifying unknown interested parties. It does however
not displace the obligation to notify known ones. I am therefore not
persuaded that the applicant can be fixed with constructive
knowledge sufficient to defeat her Rule 42(1)(a} application.
[25] Section 52( 1) of POCA entitles any person whose interest in
forfeited property is affected, to apply for an order excluding that
interest from the forfeiture order on the grounds that he or she is an
innocent owner. The section provides an important protection for
persons who, although connected to the forfeited property, had no
knowledge of or involvement in the unlawful activities that gave rise
to the forfeiture.
[26] The Constitutional Court confirmed in National Director of Public
Prosecutions v Mohamed NO and Others2 that POCA's Chapter 6
forfeiture regime is constitutional and that the standard of proof in
forfeiture proceedings is a balance of probabilities. 3 The Court
emphasised that the provisions protecting· innocent owners,
including section 52, are integral to the constitutional validity of the
regime, since without them the forfeiture of innocent parties' assets
would constitute an unjustifiable limitation of their property rights.
2 National Director of Public Prosecutions v Mohamed NO and Others 2002 (4) SA 843 (CC).
3Section 50( 1 }(a) of POCA requires the court to make a forfeiture order if the court finds on a
balance of probabilities that the property concerned is the proceeds of unlawful activities, or
that the property was used or is intended to be used in the commission of an offence.
12
[27] In the present case, the innocent owner question was not
determined in the original forfeiture proceedings because the
applicant was not a party. Paragraph 5 of the forfeiture order,
however, already recognised the problem. It expressly directed that
"the forfeiture of the house is subject to the exclusion of any interest
of the innocent owner of the land/house." The innocent owner
contemplated in paragraph 5 was the Barolong Boora Tshidi
Traditional Council, which owned the land. The order directed,
under section 52(2) of POCA, that ownership of the house shall
revert to the Traditional Council. What the order did not address,
because the applicant was not before the court, was the applicant's
own innocent co-owner claim under section 52( 1) in respect of her
undivided half-share of the joint estate.
[28] The applicant contends that the assets were built and acquired from
legitimate income. Her account is detailed. She provides supporting
documentation and a coherent chronological narrative. The sale of
a previous house in Ganyesa; the purchase of the stand and
building material; the seven-year construction period consistent with
funding from ordinary earned income; and the combined church and
business income of the household. The NDPP's answering affidavit
denies these averments and asserts that the applicant was a
knowing participant in the criminal enterprise, that she harboured
the second respondent, and that she has been indicted as a co
accused in the criminal trial.
[29] This is a genuine factual dispute. In motion proceedings, where the
parties' versions of the facts are irreconcilably in conflict, the court
must decide the matter on the respondent's version of the facts,
unless that version is so far-fetched or clearly untenable that it may
13
be rejected on the papers. Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd.4 On that approach, I must apply the
NDPP's factual version. The NDPP's version is that the applicant
was aware of and complicit in her husband's criminal activities.
[30] However, even on the NDPP's version, the innocent owner question
cannot be resolved on these papers. The applicant's indictment as
a co-accused in the criminal proceedings is not a conviction. An
indictment reflects a decision by the prosecutorial authority that
there is a prima facie case. It does not constitute evidence of guilt
and creates no presumption against the applicant in these civil
proceedings. The innocent owner defence under section 52( 1 ) is a
question of fact that depends upon proof that the applicant had no
knowledge of, or involvement in, the unlawful activities that
produced the proceeds. On the papers before me, the NDPP has
done no more than make a bare assertion that the applicant was
involved, backed by the fact of an indictment. That is insufficient to
establish, on motion papers, that she was not an innocent owner.
[31] The applicant's detailed account of the legitimate sources of funding
for the house and vehicle, supported by annexures, has not been
answered with corresponding documentary evidence by the NDPP.
A bare denial and a reference to an indictment, without more, does
not render the applicant's version "so far-fetched or clearly
untenable" as to be rejected on the papers. It follows that on the
papers as they stand, and applying the principles in P/ascon-Evans,
it has not been established that the applicant lacks an innocent
owner interest in the forfeited assets.
4Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634-635 .
14
(32] Insofar as the delay in launching this application is concerned, the
following. The application was filed on 31 August 2018 and the
matter was heard on 28 May 2026, a period of nearly eight years.
The applicant has not provided a comprehensive explanation for the
delays between the successive set-downs and removals from the
roll. This is a consideration that weighs against her in the exercise
of this Court's discretion.
[33] However, the record shows that the matter has been postponed and
removed from the roll on multiple occasions since 2018, with set
down dates in 2019, 2020, 2021, 2022, 2023, 2024, and finally 2026.
This protracted history of successive postponements is not
attributable solely to the applicant. The NDPP filed supplementary
heads of argument as recently as 6 May 2026, and the applicant
filed a replying affidavit as recently as November 2024, both of
which indicate that both parties have been active in the prosecution
of the matter. The delays, though regrettable, are not of the nature
that would disentitle the applicant to relief in circumstances where
her underlying claim is meritorious. The prejudice to the NDPP from
the delay is primarily the accumulation of curator bonis fees, which
is a consideration that will need to be addressed in any further
proceedings but is not a ground to refuse rescission.
[34] The applicant seeks full rescission of the forfeiture order of 7 June
2018. I do not consider that full rescission is the appropriate relief in
the circumstances. The forfeiture order was properly granted as
regards the second respondent's interests. The second respondent
did not participate in these proceedings and has not sought to
impugn the forfeiture order on his own behalf. The granting of a full
rescission of the order would undo the forfeiture in its entirety,
15
including the portion that affects the second respondent's half
share, which was the subject of contested proceedings in which he
was represented by counsel and had a full opportunity to oppose.
[35] The appropriate relief is more limited. The forfeiture order must be
set aside only to the extent that it forfeits the applicant's undivided
half-share in the joint estate without affording her the opportunity to
advance an innocent owner claim under section 52( 1) of POCA. To
achieve this, the matter must be referred for a further hearing at
which the NDPP is to bring a formal application under section 52 of
POCA, joined by the applicant, for a determination of the applicant's
interest in the forfeited assets and whether that interest is to be
excluded from the forfeiture on the grounds that she is an innocent
co-owner.
[36] In this regard, paragraph 5 of the forfeiture order itself already
contemplated an innocent owner exclusion in respect of the
immovable property. That exclusion was directed in favour of the
Barolong Boora Tshidi Traditional Council and addressed the
question of land ownership under section 52(2). What was not
addressed was the applicant's own section 52(1) claim. The further
hearing directed by this order will address that gap.
[37] Pending the outcome of the section 52 hearing, it is appropriate that
the existing preservation order and such portions of the forfeiture
order as remain operative be kept in place, in order to prevent
dissipation of the assets. The curator bonis accordingly continues to
hold and administer the forfeited assets pending the finalisation of
the section 52(1) proceedings. I record, however, that the matter of
the vehicle (HW 622 NW) requires particular attention in those
16
proceedings in light of the question raised by Kgoele J and the
finance position addressed at the time of the original hearing.
COSTS
[38] The question of costs is not straightforward. The applicant has
succeeded in obtaining the limited relief of rescission as to her half
share and a referral for a section 52(1) hearing. The NDPP has
partially succeeded in defeating the claim for full rescission. The
success is therefore not wholly on either side. In the circumstances,
I consider it appropriate to reserve the question of costs to the
section 52(1) hearing, where the costs of both these proceedings
and the further hearing may be dealt with in a consolidated manner.
ORDER
[39] Resultantly, the following order is made:
1. The judgment and order of this Court dated 7 June 2018 in
case number M405/2014 ("the forfeiture order"), insofar as it
declares the forfeited assets to be forfeited to the State without
recognition of and without affording the applicant an
opportunity to advance a claim under section 52(1) of the
Prevention of Organised Crime Act 121 of 1998 in respect of
her undivided half-share in the joint estate arising from the
community of property marriage between the applicant and
the second respondent, is rescinded and set aside.
2. The National Director of Public Prosecutions is directed, within
60 days of the date of this order, to enroll a hearing under
17
section 52 of the Prevention of Organised Crime Act 121 of
1998 in which:
2.1 the applicant, Nthabiseng Jelly Selabe, is cited and duly
served as a party; and
2.2 the Court is to make a determination as to whether and
to what extent the applicant's interest in the forfeited
assets is to be excluded from the operation of the
forfeiture order on the grounds that she is an innocent
owner within the meaning of section 52( 1) of POCA.
3. Pending the finalisation of the section 52 proceedings
contemplated in paragraph 2 above, the preservation order
granted by this Court on 25 September 2014 under section 38
of POCA shall remain operative in its terms, and the curator
bonis appointed thereunder shall continue to hold and
administer the forfeited assets in accordance with the
preservation and forfeiture orders, subject to any direction this
Court may give in the section 52 proceedings.
4. The question of costs, including the costs of this application
and the section 52 proceedings directed in paragraph 2, is
reserved for determination by the Court seized with the
ction 52 hearing.
ICKS
JUDGE PRESIDENT
NORTH WEST DIVISION, MAHIKENG
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APPEARANCES
For the Applicant:
Instructed by:
For the First Respondent:
Instructed by:
For the Second Respondent:
Adv. T Moloto
Mothusi Marumo Attorneys,
Mahikeng
Ms. Mahlafore
State Attorney, Mahikeng
No appearance
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