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[2018] ZASCA 86
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National Director of Public Prosecution (Ex parte Application) (905/2017) [2018] ZASCA 86; 2018 (2) SACR 176 (SCA) (31 May 2018)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 905/2017
In
the matter between:
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTION
(EX
PARTE APPLICATION)
APPELLANT
Neutral
citation:
The
National Director of Public Prosecution (Ex
Parte Application),
(
905/2017
)
[2018] ZASCA (86) (31 May 2018)
Coram:
Shongwe
ADP, Seriti and Swain JJA and Plasket and D Pillay AJJA
Heard:
23
May 2018
Delivered:
31
May 2018
Summary:
Prevention
of Organised Crime Act 121 of 1998 (the POCA) - ex parte application
in terms of section 38 for a preservation order
in respect of a
Toyota Prado station wagon motor vehicle - proceedings in respect of
chapter 6 of the POCA constitute civil proceedings
– section 38
ex parte application to be set down as provided for in Uniform rule 6
(4)(a).
ORDER
On
appeal from:
Gauteng
Division, Pretoria functioning as the Mpumalanga Division, Mbombela
(Legodi J sitting as court of first instance);
1
The appeal is allowed.
2
The order of the court a quo is set aside and substituted as follows:
‘
(a)
The appellant may re-enroll with the registrar of the court a quo the
application in terms of
s 38(1)
of the
Prevention of Organised Crime
Act 121 of 1998
in its original form as an ex parte application.
(b)
The application must be set down in accordance with
rule 6(4)(
a
)
of the Uniform Rules of Court.
(c)
A judge of the court a quo as soon as may be
reasonably and practically possible after such re-enrolment
shall
consider and deal with the application as an ex parte application
without need for service and decide the application on
its merits in
accordance with the requirements for the making of the order sought
as laid down in s 38(2) of the POCA.’
JUDGMENT
Seriti
JA (Shongwe ADP, and Swain JA and Plasket and D Pillay AJJA
concurring):
[1]
On 14 October 2016, the appellant lodged an ex parte application with
the Gauteng Division, Pretoria functioning as the Mpumalanga
Division, Mbombela in terms of s 38(1) read with s 74(1) of the
Prevention of Organised Crime Act 121 of 1998 (the POCA) for a
preservation order in respect of a Toyota Prado station wagon motor
vehicle with registration number CV04JK GP. The application
was to be
heard on 20 October 2016 in chambers, however on that date the matter
was stood down to 25 October 2016.
[2]
On 25 October 2016 the matter was heard in open court, judgment was
reserved and on 10 November 2016 the court (per Legodi J)
granted an
order which reads as follows: ‘[t]he application is hereby
struck off from the roll and the applicant (NDDP) is
directed to
serve the application in the event he or she wishes to re-enroll it
as a section 38(1) application’.
[3]
The appellant aggrieved with this order, applied for leave to appeal
which application was dismissed. The appellant with leave
of this
court appeals against the order of the court a quo. An abbreviated
recitation of the factual background relevant to this
judgment will
follow hereunder.
[4]
On 6 March 2016 Sergeant Van der Westhuizen and Sergeant Maluleke,
after receipt of certain information, went to Nkomazi toll
plaza near
Kaapmuiden to intercept a certain 2005 Toyota Land Cruiser Prado
station wagon motor vehicle with registration number
CV04JK GP
(Prado). At about 10h00, Van der Westhuizen saw the Prado passing
through the Nkomazi toll plaza and they stopped the
Prado motor
vehicle. They searched the motor vehicle and noticed a number of
manual modifications to the main rear fuel tank. Van
der Westhuizen
then loosened ten bolts that were holding the top cover intact, and
removed the top cover from the rear fuel tank.
Under the cover, they
found multiple white plastic
s
bags which contained a certain substance. There were 50 bags in
total; and it was later established that these bags contained heroin.
[5]
After discovering the heroin in the rear fuel tank, the driver of the
Prado, Mr Jeronimo Masoio Mateus Matusse (Matusse) who
was alone in
the Prado was arrested. The illicit drugs were later sent to the
SAPS’s Forensic Science Laboratory for analysis
and the
Forensic Science Laboratory determined that the substance in the 50
bags was diacetyl- morphine (heroin) and that the total
mass of the
50 bags of heroin was 50.390 kilograms, which has an approximate
street value of R50 million.
[6]
The Electronic National Transport Information System indicated that
Haji Ramadhani, a Tanzanian national, is the owner and title
holder
of the Prado motor vehicle since 31 October 2013. It further
indicated that the Prado is not subject to a hire-purchase
agreement
which suggested that Ramadhani bought the Prado cash or had paid it
off.
[7]
On
7 March 2016 Matusse appeared in the Kaapmuiden district court on
charges of possession and dealing in an illicit substance namely
diacetylmorphine. He applied for bail which was opposed by the state
and dismissed by the court. On 18 May 2016 he appeared in
the
Barberton Regional Court, where he applied to be released on bail
relying on new facts.
[8]
During the renewed bail application Matusse testified that he had no
knowledge of the illegal substance ie heroin which was
found in the
fuel tank of the Prado. He further testified that Ramadhani met him
at a hotel in Johannesburg and Ramadhani requested
him to drive the
Prado to Maputo, Mozambique and back to Johannesburg. Ramadhani
requested him to deliver the Prado to a person
called Sergio who
resided in Maputo.
[9]
According to his evidence, he acceded to the request of Ramadhani,
and drove the Prado to Maputo where he met Sergio and handed
the
Prado over to him. After a few days Sergio returned the Prado to him
and he drove back to Johannesburg in order to return the
motor-vehicle to Ramadhani. He was arrested on his way back to
Johannesburg and the heroin was found by the police in the fuel
tank
of the Prado.
[10]
Matusse who is a Mozambican national was subsequently released on
R5000 bail and his criminal case in the regional court, Barberton
was
postponed to 4 October 2016.
[11]
After the arrest of Matusse, the police attempted to trace Ramadhani.
The police went to the address appearing on the Electronic
National
Transport Information System and to the address appearing on the
affidavit allegedly signed by Ramadhani, however he could
not be
traced as the addresses were incorrect. The police attempted to
contact Ramadhani on his alleged cellular phone number but
this
cellular telephone number turned out to be inactive. Ramadhani did
not contact the police in order to request the return of
the Prado.
[12]
In the supporting affidavit, Constable Thela, stationed at the
Nelspruit Organised Crime Unit in the Asset Forfeiture Section,
stated that the Prado was modified and adapted in order to covertly
transport 50 kilograms of heroin from Mozambique into South
Africa.
In other words the Prado was used as an instrument to smuggle the
heroin through the Mozambique and South Africa border
posts. The
Prado was further used to transport Matusse, the illicit drug
courier, from Gauteng, South Africa to Maputo, Mozambique
and back.
He requested further that the honourable court preserve the Prado
pending the outcome of a forfeiture application.
[13]
In his heads of argument, counsel for the appellant urged this court
to deal with the various reasons advanced by the court
a quo for its
decision or judgment. It is trite that an appeal lies against the
substantive order made by the court and not the
reasons for the
judgment – see
ABSA
Bank Ltd v Van Rensburg & another
[2014] ZASCA 34
;
2014 (4) SA 626
(SCA) at 632F–G and
ABSA
Bank Ltd v Mkhize and Two Similar Cases
[2013]
ZASCA 139
;
2014 (5) SA 16
(SCA) at 37. In this event, I shall
concentrate on the substantive order of the court a quo and deal
cursorily with some of the
reasons of the court quo which in my view
are relevant to the conclusion that I have arrived at hereunder.
[14]
Section 38 of the POCA reads as follows:
‘
(1)
The National Director may by way of an ex parte application apply to
a High Court for an order prohibiting any person, subject
to such
conditions and exceptions as may be specified in the order, from
dealing in any manner with any property.
(2)
The High Court shall make an order referred to in subsection (1) if
there are reasonable grounds to believe that the property
concerned-
(
a
)
is an instrumentality of an offence referred to in Schedule 1;
(
b
)
is the proceeds of unlawful activities; or
(
c
)
is property associated with terrorist and related activities
.’
[15]
The fundamental principle in the interpretation of statutes is that
words must be given their ordinary meaning, unless that
construction
would lead to an absurdity. In the event of an ambiguity the court
can examine the apparent purpose of the provision
and the context in
which it appears. In
Cool
Ideas 1186 CC v Hubbard & another
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) at 28,
the court said ‘[a] fundamental tenet of statutory
interpretation is that the words in a statute must be given
their
ordinary grammatical meaning, unless to do so would result in an
absurdity. There are three important interrelated riders
to this
general principle, namely: (
a
)
that statutory provisions should always be interpreted purposively;
(
b
)
the relevant statutory provision must be properly contextualised; and
(
c
)
all statutes must be construed consistently with the Constitution. .
.’. See also
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18. In an attempt to
interpret the provisions of section 38, the fundamental principles of
interpretation mentioned
above will be invoked.
[16]
Section 38, contained in Chapter 6 of the POCA, deals with the civil
recovery of property and the relevant sections thereof
are ss 37 to
62. Section 37 deals with the nature of the proceedings and ss 38 to
47 deal with the preservation of property and
related issues.
[17]
When dealing with the scheme of chapter 6, this court in
National
Director of Public Prosecutions v Van Staden
2007
(1) SACR 338
(SCA) para 3 said, ‘[I]t authorises the NDPP to
apply to a High Court, without notice, for an order that has the
effect of
temporarily depriving a person of property, so as to
preserve the property in anticipation of an order being sought for
its forfeiture.
A court is required to make such an order “if
there are reasonable grounds to believe that the property concerned .
. . is
an instrumentality of an offence referred to in Schedule
1” of the Act’.
[18]
Schedule 1 of the POCA amongst others refers to ‘any offence
referred to in s 13 of the Drugs and Drug Trafficking Act,
1992 (Act
140 of 1992)’. Section 13 of the Drug Trafficking Act read in
conjunction with Part 111 thereof classifies heroin
(diacetylmorphine) as an undesirable dependence producing substance
and dealing in such substance as an offence.
[19]
In
National
Director of Public Prosecutions v Mohamed NO & other
s
2003 (4) SA 1
(CC), the court was dealing with a declaration of
constitutional invalidity made by the Johannesburg High Court in
respect of s
38 of the POCA. At para 27 the court said ‘[f]or
purposes of this case “an ex parte application” in our
practice
is simply an application of which notice was as a fact not
given to the person against whom some relief is claimed in his
absence’.
In para 33 the court stated further that ‘[t]he
phrase in s 38 “[t]he National Director may by way of an ex
parte application
apply” means no more than that, if the
National Director is desirous of obtaining an order under s 38, she
or he may use
an ex parte application above. . .’. The
normal meaning of s 38 is that the DPP may, if she or he so decides,
approach
the high court by way of an ex parte application. The
provisions of s 38 are unequivocal and attaching ordinary meaning to
the
words used in section 38 does not lead to any absurdity.
[20]
In various paragraphs of its judgment, the court a quo indicated that
the NDPP, in order to proceed with an ex parte application
in terms
of s 38 is supposed to show a real possibility that the Prado will be
lost to them if the driver or owner thereof comes
to know about the
application for a preservation order. The court a quo when dealing
with s 38(1) said ‘[i]t is a discretionary
power which is
conferred on the NDPP to approach the court ex parte in terms of
section 38(1) and when that discretionary power
is exercised, NDPP is
required to show prima facie … that by approaching the court
by way of notice of motion, the Prado
will be dissipated or
destroyed’. I do not agree with the views of the court a quo.
In order to obtain a preservation order
in terms of s 38, the NDPP
must comply with the requirements of s 38. The section does not
require the NDPP to show a real possibility
that the property in
question will be lost if the owner thereof comes to know about the
application for a preservation order.
[21]
The NDPP is entitled, if he or she so wishes to launch an application
in terms of s 38 by way of an ex parte application. Chapter
6 deals,
inter alia, with preservation of property orders, forfeiture of
property etc and may be invoked prior to, or in the absence
of a
conviction. The provisions of chapter 6 are not conviction based.
They are civil remedies which the NDPP may invoke even if
a
conviction is lacking.
[22]
The court a quo said further, ‘[s]ection 38(1) gives the NDPP
discretionary power to approach the court on ex parte and
in camera
for preservation of property order. Such discretionary power must be
exercised properly based on the facts of each case.
Abuse of the
section ought to be discouraged. In others words, utilization of an
ex parte application as a matter of must and right
may not get the
pleasure of the court unless there are facts justifying the bringing
of any application on ex parte and or in camera’.
Furthermore,
the court a quo went on to say ‘[a]s I said, bringing the
present application in terms of s 38 for possible
forfeiture under s
48 read with section 50 of the POCA without giving notice, amounts to
an abuse’. I do not agree with the
views of the court a quo
mentioned in this paragraph. This is so because s 38 allows the
National Director of Public Prosecutions
if he or she so wishes to
launch an ex parte application.
[23]
In
National
Director of Public Prosecutions v Alexander & others
2001 (2) SACR 1
(T), the applicant brought an application to court in
terms of s 26(1) of the POCA. Section 26 deals with restraint orders
and
subsection 1 thereof reads partly as follows: ‘[t]he
National Director may by way of an ex parte application apply to a
competent
high court. . .’. The court in
Alexander
stated that, in addition, ‘[t]he Act clearly and expressly
allows an applicant to apply ex parte . . . [b]ut to require an
applicant to convince a court of some special circumstances to
justify an ex parte application, would be to ignore the wording
of s
26(1), or to render it meaningless . . . [b]ut the clear intention of
the Legislature that applications of this kind may be
brought ex
parte is unavoidable. Presumably the Legislature regarded these
proceedings as inherently sufficiently urgent’.
I am in full
agreement with the views of the court expressed herein.
[24]
It is not an abuse of s 38 if the National Director of Public
Prosecutions decides to approach the court, in terms of this
section
by way of an ex parte application. Section 39 makes provision for
giving notice of the preservation order to affected persons.
In terms
of s 47, the high court which made a preservation of property order
may on application by a person affected by that order
vary or rescind
the preservation of property order or an order authorising the
seizure of the property concerned. The preservation
orders precede
the granting of a forfeiture order in term of s 48. Prior to the
application for a forfeiture order in terms of
s 48, the National
Director would have given notice of the preservation of property
order to all persons known to the National
Director that have an
interest in property which is the subject of the order. Prior to the
granting of a forfeiture order, people
with an interest in the
relevant property would have been given sufficient opportunity to do
what they deem necessary in order
to protect their interest if they
so wish.
[25]
As stated in the previous paragraph, s 39 makes provision for the
giving of notice of the preservation of property order so
that those
with an interest in the said property can do what they deem necessary
to protect their interest. Furthermore, the high
court can, after
hearing a preservation application ex parte and in camera, grant a
rule nisi together with an interim preservation
order pending the
return day of the rule. See
NDPP
v Mohamed
above paras 32 and 51.
[26]
The audi alteram partem rule is not excluded. Parties who have an
interest in the affected property have ample opportunity
to do what
is necessary to protect their interest prior to the granting of an
order forfeiting to the State the property that is
the subject of a
preservation of property order or if a rule nisi is granted, on the
return date or they can anticipate the return
date.
[27]
The preamble of the POCA reads partly as follows: ‘no person
should benefit from the fruits of unlawful activities, nor
is any
person entitled to use property for the commission of an offence . .
. legislation
s
is necessary to provide for a civil remedy for the preservation and
seizure, and forfeiture of property . . . concerned in the
commission
or suspected commission of an offence’. In order to achieve the
objectives of the POCA, the legislature enacted,
inter alia chapter
6. As stated earlier, it is not conviction based.
[28]
There are other provisions in the
Criminal Procedure Act 51 of 1977
which deal with the forfeiture of property. The court a quo in this
respect stated that ‘[t]he NDPP can resort to
section 35
of the
Criminal Procedure Act by
instructing the prosecutor in criminal
proceedings to invoke the provisions either of subsection (1) or
subsection 2’. The
legislature when it passed the POCA was
aware of the provisions of
s 35
of the
Criminal Procedure Act and
in
its wisdom in order to achieve the objects of the POCA, enacted
chapter 6 of the POCA. The National Director of Public Prosecutions
is entitled to utilize the provisions of chapter 6 of the POCA
despite the fact that the
Criminal Procedure Act makes
provision for
forfeiture proceedings. The State’s counsel, in his heads of
argument, correctly so in my view, submitted that
where more than one
potential forfeiture process exists in a given instance it must be
left up to the relevant State entities to
determine which process
would be the most appropriate to adopt in the particular
circumstances. It is not competent for the court
to interfere with
the decision of the State to follow a particular forfeiture process.
The NDPP legitimately chose to proceed in
terms of Chapter 6 of the
POCA, and such a decision must be respected by the court.
[29]
The court a quo dealt with some of the provisions of the Practice
Directives of the Mpumalanga Division of the High Court 1
of 2016 and
said: ‘[p]aragraph 2.5.5.2 of Mpumalanga Division of the High
Court provides that; “ex parte applications,
that is
applications enrolled without notice being given to the affected
party or parties; will not be enrolled and heard; except
where such
notice is not required by and will not adversely affect any person”.
In addition paragraph 2.5.5.3 provides that
“any ex parte
application will only be enrolled and heard in exceptional
circumstances, which must clearly and concisely
be set out in the
founding affidavit”’. The court a quo was of the view
that the
s 38
application must comply with the provisions of the
Mpumalanga Division of the High Court practice directives.
[30]
Rule 6(4)(
a
)
of the Uniform Rules of Court reads as follows; ‘[e]very
application brought ex parte shall be filed with the registrar
and
set down before noon on the court day but one preceding the day upon
which it is to be heard’. It is clear that paragraph
2.5.5.2 is
inconsistent with Uniform rule (6)(4)(
a
).
Furthermore, the provisions of paragraphs 2.5.5.2 and 2.5.5.3 are
inconsistent with the provisions of s 38 in so far as they
suggest
that an ex parte application will not be heard except where notice of
the application is not required by and will not adversely
affect any
person and that any other ex parte application will only be enrolled
and heard in exceptional circumstances. Paragraph
8.1 of the Practice
Manual of the KwaZulu-Natal Provincial Division correctly states that
ex parte applications are catered for
in rule 6(4)(
a
)
read with Form 2 of the First Schedule. Section 38 stipulates the
requirements that must be complied with before the high court
can
grant a preservation of property order. The section makes no mention
of exceptional circumstances.
[31]
The practice directive is subordinate to any relevant statute, the
common law and the Uniform rules and it cannot be applied
to restrict
or undermine any piece of legislation, the Uniform Rules of Court or
the common law. Practice directives deal essentially
with the daily
functioning of the courts and, their purpose is to supplement the
rules of court. In this case, the court a quo
afforded the practice
directive statutory force overriding both s 38 of the POCA and rule
6(4)(
a
)
of the Uniform rules which is impermissible. The practice directive
should not negate the provisions of s 38 and rule 6(4)(
a
)
of the Uniform rules. In my view the portion of the practice
directive dealing with ex parte applications is not applicable to
ex
parte applications brought in terms of s 38.
[32]
Ex parte applications in terms of s 38 are by their nature urgent.
The purpose of the preservation order is to protect the
property from
being disposed of or removed or dissipated. Proceedings in terms of
chapter 6 of the POCA constitute civil proceedings
aimed at ensuring,
amongst others that property used to commit an offence mentioned in
Schedule 1 is preserved and in appropriate
cases, ultimately
forfeited to the State. The purpose of chapter 6 is to combat crime
and for that reason the proceedings for obtaining
a preservation
order are urgent.
[33]
The appellant’s counsel submitted that the approach to an ex
parte application brought in terms of s 38(1) should be
that as soon
as is reasonably and practically possible after such an application
has been filed with the registrar, a judge in
chambers ought to
consider the application and make the appropriate order. I agree with
this submission.
[34]
In the result, I make the following order:
1
The appeal is allowed.
2
The order of the court a quo is set aside and substituted as follows:
‘
(a)
The appellant may re-enroll with the registrar of the court a quo the
application in terms of
s 38(1)
of the
Prevention of Organised Crime
Act 121 of 1998
in its original form as an ex parte application.
(b)
The application must be set down in accordance with
rule 6(4)(
a
)
of the Uniform Rules of Court.
(c)
A judge of the court a quo as soon as may be
reasonably and practically possible after such re-enrolment
shall
consider and deal with the application as an ex parte application
without need for service and decide the application on
its merits in
accordance with the requirements for the making of the order sought
as laid down in s 38(2) of the POCA.’
__________________
WL
SERITI
JUDGE
OF APPEAL
APPEARANCES
:
For Appellant:
W A Coetzer and S J van der Walt
Instructed
by: The State Attorney,
Pretoria
The
State Attorney, Bloemfontein