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IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)
CASE NO:187529-2026
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised: No
DATE 7 September 2026
SIGNATURE
In the ex parte application:
THE NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS APPLICANT
Delivered: (This judgment is handed down electronically by uploading to the
electronic file of this matter on CaseLines and by email to the Parties/their legal
representatives by email. The date of this Order is deemed to be 07 September
2026
JUDGMENT
LESO AJ
Introduction
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[1] The Applicant is the National Director of Public Prosecutions (NDPP), which
filed an ex parte application seeking an interim preservation order of a vehicle
described as a White Ford Ranger Sedan with Registration number C[...].
[2] The order aims to preserve a white Ford Ranger sedan vehicle alleged to be
an instrument ality in the trafficking of narcotics , and in the present matter, the
prohibited substance is marijuana / cannabis (dagga) in terms of section 13 of the
Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Trafficking Act).
Factual Background
[3] The South African Police Service (SAPS) seized the vehicle on the day of the
arrest of the accused persons. It is recorded in annexure “SAP13” as:
3.1 Model: White Club Cabb Ford Ranger,
3.2 Registration No: C[...],
3.3 VIN: A[...], with
3.4 Engen No: 1[...] 3[...].
[4] The statement of Sergeant France Mathabela (Mathabela), a member of the
South African Police Service (SAPS), stationed at Kaapmuiden Police Station,
confirms that the vehicle was used to transport dagga. Mathabela's statement and
the supporting affidavit of Tivanani Christian Shivambu (Shivambu) may be
summarised as follows
4.1 The Case Docket Kaapmuiden Cas 01/03/2026 reflects that 56 rolls of
dagga were recovered from inside the vehicle;
4.2 The dagga was found to weigh 111.68kg with an estimated street value
of R330, 000.00;
4.3 The dagga was booked at the Kaapmuiden Police Station (the
Station’s) SAP13 register under entry number SAP13/24/2026; and
4.4 The vehicle was booked in the Station’s SAP13 register under entry
number SAP13/25/2026.
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[5] It is further recorded in “J15” that the accused persons in this matter appeared
on 3 March 2026, and the state refused their release on warning. The case was
postponed to 19 March 2026.
[6] On 4 March 2026, Auto Mduduzi Nkosi (the accused), through his attorney,
brought an application for the release of the motor vehicle. The magistrate recorded
as follows: “The prosecutors do not oppose the release of the motor vehicle in terms
of section 3(1) of the CPA as the state does not intend to use the vehicle as
evidence.”
[7] On 11 March 2026, the magistrate issued a subpoena for W/O Yende and Ms
Mafunyeka to explain why they refused to release the vehicle and the reafter matter
was postponed to 19 August 2026.
[8] On 10 August 2026, the court received an application for preservation of the
motor vehicle described as a ‘White Ford Ranger Sedan with Registration number
C[...].’ The a ffidavits of Thanduxo Bongani Jakavula and Tivanani Christian
Shivambu were filed in support of the application.
[9] On 13 August 2026, the NDPP was directed to provide further information
after the court noted that the motor vehicle subject to the application is different from
the vehicle under the SAPS ’ custody so that the application can be properly
determined as follows.
Why the vehicle sought to be preserved constitutes an ‘instrumentality of an
offence’, rather than merely being property owned or possessed by a suspect.
10] The applicant submit ted before this Court that the criminal court’s order
related has no bearing on these proceedings. The vehicle was not merely owned or
possessed by the suspect, and moreover, the vehicle was found transporting 56 rolls
of dagga with a street value of R330,000.00 in contravention of the Drug Trafficking
Act and the offence mentioned in item 22 of POCA. According to the NDPP, the facts
show a direct nexus: the vehicle was used at the time of the offence to transport the
show a direct nexus: the vehicle was used at the time of the offence to transport the
dagga. That direct link makes it an instrument , not merely property owned or
possessed.
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11] In summation, the NDPP submitted that t he vehicle is not merely property
owned or possessed by a suspect. It is property that was actively used in the
commission of a Schedule 1 offence and is therefore liable for preservation in terms
of section 38 of POCA.
The necessity of the preservation order arose after the court on 4 March 2026
ordered the release of the motor vehicle sought to be preserved.
[12] The applicant submitted that, the order of 4 March 2026 is ultra vires and
invalid ab initio . The Magistrate s’ Court that issued that order for release lacked
jurisdiction to do so. Matters relating to the preservation and forfeiture of property
that constitute ‘an instrument’ of a Schedule 1 offence fall exclusively within the
jurisdiction of the High Court in terms of Chapter 6 POCA. A criminal court acting in
terms of the Criminal Procedure Act 51 of 1977 ( the CPA) has no power to make
orders concerning preservation under POCA. Therefore, it is argued that the order is
ultra vires, a nullity, and does not have to be complied with in terms of section 38(1)
of POCA . Ultimately, t he order of 4 March 2026 was made by a criminal court
without jurisdiction over POCA matters and is invalid ab initio insofar as it purports to
release property liable to preservation and forfeiture. The NDPP , so the argument
goes, is therefore entitled to proceed with preservation despite that order.
[13] The applicant further submitted that POCA creates a separate and
independent jurisdiction, and the seizure of a vehicle by SAPS in terms of section 20
of the CPA and the institution of preservation proceedings in terms of s ection 38 of
POCA operate in separate spheres. The fact that a criminal court purported to order
release does not extinguish the NDPP’s statutory duty to institute preservation
proceedings where there are reasonable grounds to believe the property is an
instrument.
[14] According to the applicant , the criminal court that granted the order for the
[14] According to the applicant , the criminal court that granted the order for the
return of the vehicle did so ultra vires. The applicant stated that, In terms of Chapter
6 of POCA, jurisdiction to determine whether property constitutes an instrument, and
is liable to preservation and forfeiture vests exclusively in the High Court and that the
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NDPP, through the Asset Forfeiture Unit, is empowered in terms of section 38 (1) of
POCA to institute preservation proceedings irrespective of the fact that the vehicle
was initially seized by the SAPS in terms of section 20 of the CPA.
Whether or not the order to release the motor vehicle was suspended,
rescinded, varied, or set aside.
[15] The order dated 4 March 2026 has not been suspended, rescinded, varied or
set aside by way of a formal court application. The NDPP submitted that, an order
made ultra vires is a nullity from the beginning , it has no legal force and effect and
that it need not be set aside and, therefore, it can be ignored.
[16] The theory of the applicant’s case is that , because t he release order was
made in terms of the CPA , whereas the preservation application is brought in terms
of POCA, the two operate independently.
[16] In the logic of the NDPP, t he invalid release order does not oust the
jurisdiction of th e High Court to grant a preservation order and therefore, whilst that
order has not been formally set aside , an application for preservation remains
‘necessary’, and this Court is competent to have heard such a matter and make such
an order. Furthermore, the NDPP contends, that it had a statutory duty, upon forming
a reasonable belief that the property is an instrument of a Schedule 1 offence, to
institute preservation proceedings in terms of section 38 of POCA.
[17] I shall deal with the issue of legality and the finality of orders later in this
judgment.
[18] According to the NDPP, releasing the vehicle would have frustrated that
statutory duty and prejudiced the State’s right to apply for forfeiture in terms of
section 50 of POCA. Had the vehicle been released, there was a real risk that it
would be sold, transferred, or damaged, thereby defeating the purpose of
preservation and/or forfeiture.
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[19] In the founding papers, the description of the motor vehicle at issue is as a
Ford Ranger Sedan , which is said to have been made in error. The correct
description of the motor vehicle is that of a white Ford Ranger 4.0 V6 XLT 4x4. It was
the contention of the NDPP that t he erroneous description of the motor vehicle does
not affect the identity of the vehicle that sought to be preserved . I shall deal with this
issue below.
Analysis and Evaluation of The Evidence
[20] The starting point in determining this application is the nature and threshold
of the relief sought. The application is brought in terms of section 38 of the POCA
read together with section 13 of the Drugs Trafficking Act . In terms of section 38(2),
the court is required to grant a preservation order where there are reasonable
grounds to believe that the property concerned is, inter alia, an instrumentality of an
offence referred to in Schedule 1. The enquiry at this stage is therefore not whether
the State has established the commission of the offence on a balance of
probabilities, but whether the evidence establishes reasonable grounds for the
requisite belief.
[21] In terms of section 38(2) (a) of the Prevention of Organised Crime Act 121 of
1998 (POCA), instrumentality means property that was used as an “instrumentality of
an offence” (instrumentality) referred to in Schedule 1 of POCA, not just property that
belongs to the accused. The preservation application is brought in terms of Chapter
6 of POCA, which provides for proceedings in the ‘civil recovery of property.’ The
subject of these proceedings is the vehicle itself, not the person who may be
suspected in the commission of those offences mentioned in Schedule 1.
[22] If this evidence relayed earlier in this judgment as to the nature, content,
weight and monetary (street) value of the narcotics seized is accepted, it establishes
a direct factual nexus between the motor vehicle and the alleged offence. The
a direct factual nexus between the motor vehicle and the alleged offence. The
vehicle was not merely alleged to belong to or to have been in the possession of an
accused person; t he applicant's case is that the vehicle was used to transport the
dagga. That distinction is material because, at the preservation stage, the property
must be shown to have the requisite connection with the commission of the
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Schedule 1 offence. The S upreme Court of Appeal (the SCA) has held that an
instrument must play a real or substantial role in the commission of the offence. 1
[23] 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 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 POCA, the
legislature enacted, inter alia , Chapter 6. As stated earlier, it is not conviction-
based.2
[24] The court in National Director of Public Prosecutions v Van der Merwe and
Another,3 in approval of National Director of Public Prosecutions v RP Cook
Properties (Cook Properties) 4 the court, articulating the nuances entailed in POCA
forfeiture matters, stated that:
“‘The purpose of Chapter 6’s forfeiture provisions is signalled in the part of the
Act’s Preamble that states that ‘no person should benefit from the fruits of
unlawful activities, nor is any person entitled to use property for the
commission of an offence . In the NDPP's argument, releasing the vehicle
would have rendered any subsequent forfeiture order nugatory.
[25] The applicant distinguished the nature of this property/ the vehicle in that the
vehicle was not simply parked at the suspect’s house and unrelated to the crime; it
would be mere property. On the evidence presently before the court, there are
therefore reasonable grounds for believing that the vehicle was used in the alleged
1 See Singh v National Director of Public Prosecutions [2007] ZASCA 82 at para 11 , which relied on Cook
Properties for authority that:
“(a) there must be a reasonably direct link between the property and its criminal use and
(b) the use of the property must be functional to the commission of the crime and that the property must
substantially facilitate,
make possible or be instrumental in, and not incidental to, the commission of the offence”.
2 National Director of Public Prosecution (Ex parte Application) [2018] ZASCA 86 at para 27.
3 National Director of Public Prosecutions v Van der Merwe and Another (A338/2010) [2011] ZAWCHC 8;
2011 (2) SACR 188 (WCC); [2011] 3 All SA 635 (WCC) (24 February 2011) at para 6.
4 National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National Director of Public
Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another; National Director of Public Prosecutions v
Seevnarayan [2004] 2 All SA 491 (SCA) (Cook Properties) at para 14.
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transportation of the dagga. The applicant accordingly establishes, at least in relation
to the statutory threshold contemplated in section 38(2), a basis upon which a
preservation order could ordinarily be considered.
[26] That, however, does not dispose of the application. A material and anterior
issue arises from the order granted by the Magistrates ’ Court on 4 March 2026. It is
common cause from the applicant’s own subsequent response that an application for
the release of the vehicle had been brought in the criminal proceedings and that the
magistrate ordered its release. The applicant further concedes that the order has not
been suspended, rescinded, varied or set aside.
[27] The applicant nevertheless contends that the order was made without
jurisdiction and was therefore invalid ab initio. It follows from the applicant ’s
argument that it considered itself entitled to disregard the order and to approach this
Court for preservation of the same property without first obtaining an order from a
competent court setting aside, suspending or otherwise rendering ineffective the
magistrate’s order.
[28] In my view, that approach cannot be accepted without qualification. The
principle that a court order must be obeyed unless and until it is set aside by a
competent court is fundamental to the rule of law and the administration of justice.5
[27] A party cannot ordinarily assume the power to determine for itself that an
order of another court is a nullity and, on that basis, simply disregard it.
[28] After all, the NDPP ought to know the position articulated in the seminal
judgment, Department of Transport and Others v Tasima (Tasima), which already
affirmed that, irrespective of their flaws, under section 165(5) of the Constitution,
court orders are binding until set aside. 6 Whether the Magistrates ’ Court ultimately
had jurisdiction to make the release order, and whether that order was legally
competent, are questions which cannot simply be determined by the applicant and
competent, are questions which cannot simply be determined by the applicant and
treated as having no legal consequence. If the NDPP considered the order to be
5 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [2014] ZACC 6
6 Department of Transport and Others v Tasima (Pty) Limited [2016] ZACC 39 paras 179 – 182.
9
invalid, the appropriate course was to place that issue before a competent court and
seek appropriate relief.
[29] In S v Vorster en 'n Ander,7 the court held that “in an application sought for an
order for the return of a motor vehicle seized in terms of section 20 of the CPA, the
court determined that dealing with property during trial would necessitate some or
other kind of finding as to the merits and, further, the decisive reason for the court’s
refusal of that application was, namely that section 35 of the CPA provided that the
State could apply at the end of a trial for an article used in connection with the
commission of an offence to be declared forfeit to the State. Any order for the return
of the vehicle would deprive the State of the right to bring such an application.
[30] This conclusion does not amount to a finding that the magistrate’s order was
legally correct. It means only that the NDPP was not entitled, on the basis of its own
characterisation of the order, to treat it as non -existent. This distinction is important,
categorical, if not dispositive.
[31] The issue before this Court is whether the applicant has established a proper
basis for the relief sought notwithstanding the existence of an extant court order
directing the release of the very property which it now seeks to preserve.
[32] A further difficulty arises from the NDPP’s failure to disclose the release order
in the application. The NDPP, too, ought to know that it was required to place before
this Court all material facts in the utmost good faith or uberrima fides, including those
facts which might operate against the relief sought.8
[33] In Herbstein and Van Winsen: The Civil Practice of the Superior Courts of
South Africa, 9 the authors discuss the locus classicus, Schlesinger v Schlesinger,
7 S v Vorster en 'n Ander 2006 (1) SACR 611 (T) at para 617C -F. See also Phillips and Others v National
Director of Public Prosecutions 2003 (6) SA 447 (SCA).
Director of Public Prosecutions 2003 (6) SA 447 (SCA).
8 See Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348E - 349B; Thint (Pty) Ltd v National Director of
Public Prosecutions and Others; Zuma and Another v National Director of Public Prosecutions and Others
2009 (1) SA 1 (CC) per Ngcobo J at para [296].
9 Herbstein and Van Winsen: The Civil Practice of the Superior Courts of South Africa RS 4, 2026 p13-31.
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where the following principles applicable to the uberrima fides rule were extracted
from the relevant authorities:10
“(1) in ex parte applications all material facts must be disclosed which might
influence a court in coming to a decision;
(2) the non-disclosure or suppression of facts need not be wilful or mala
fide to incur the penalty of rescission [of the order obtained ex parte;
and
(3) the court, apprised of the true facts, has a discretion to set aside the
former order or to preserve it.11”
[34] The existence of the release order was plainly material. It concerned the very
vehicle which is the subject of the preservation application and directly affected the
circumstances in which this Court was being asked to grant relief.
[35] The subsequent disclosure of the order does not render the omission
immaterial. In an ex parte application the duty of disclosure is exacting because the
affected party is absent and the court is dependent upon the applicant for a balanced
presentation of the material facts. The question is therefore not merely whether the
applicant eventually disclosed the order, but whether the Court, when first
approached, was placed in possession of all facts material to the exercise of its
discretion.
[36] I am accordingly unable to accept the proposition that the existence of the
release order could properly be treated as irrelevant to the present proceedings. The
applicant’s own subsequent explanation demonstrates its significance: the
preservation application is advanced, in part, on the basis that releasing the vehicle
would prejudice the State’s ability to pursue forfeiture proceedings.
10 Op. cit., fn 17.
11 Ibid. The text makes the following notation: “the non-disclosure does not have to be wilful or mala fide:
Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental Affairs 2019
(3) SA 251 (SCA), [2019] 2 All SA 1 para 45 at 267C-D (SA), 15c-d (All SA) (per Cachalia JA), with reference
to Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 349A-B.”
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[37] The explanation advanced by the NDPP for not complying with the release
order is also material. The NDPP contends, as stated earlier, that the investigating
authority was obliged to maintain the status quo because the matter had already
been referred to the Asset Forfeiture Unit and because preservation proceedings
were contemplated. That contention, however, does not itself provide a legal basis
upon which a State organ may disregard an existing court order. The fact that
preservation proceedings were contemplated could have justified an application for
appropriate interim relief; it did not, without more, extinguish or suspend the existing
order.
[38] I turn finally to the discrepancy in the description of the motor vehicle. The
vehicle is described in the application as a “White Ford Ranger Sedan”, whereas the
NDPP subsequently sought to correct the description to a “White Ford Ranger 4.0
V6 XLT 4x4. ” The NDPP contends that this was an error which did not affect the
identity of the vehicle.
[39] The court accepts that the applicant made a mistake in the description of the
motor vehicle but that does not assist the NDPP because the description is still
incorrect and no substantive amendment has been sought before this Court.
[40] In the circumstances, the difficulty with the application is not that the evidence
is incapable of establishing the requisite nexus between the vehicle and the alleged
offence. Rather, it is that the applicant approached the Court for ex parte relief
without making full disclosure of a material existing court order and , thereafter,
sought to justify non -compliance with that order by unilaterally narratively
characterising it as invalid.
[41] In an ex parte application for preservation of property, the court must be
satisfied not only that the statutory threshold in section 38 has been met, but also
that the applicant has approached the court with the requisite candour and has
that the applicant has approached the court with the requisite candour and has
placed all material facts before it. Where a material existing court order affecting the
very property in dispute is not disclosed, and where the applicant seeks relief which
has the practical effect of undermining that order, the court is entitled to regard the
omission as material to the exercise of its discretion.
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Conclusion
[42] For these reasons, although the evidence establishes a sufficient factual basis
for the alleged ‘instrumentality’ of the vehicle, I am not persuaded that the applicant
has established a proper basis upon which this Court should grant the preservation
order in the circumstances in which the application was brought. The application
must accordingly fail.
The Order
[43] Wherefore, the following order is made:
1. Application is dismissed.
2. No order as to costs.
_____________________________________
J T LESO
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Appearances
For the Applicant:
National Director of Public Prosecutions
Counsel: Adv N. Pisane
103 101 3722
NPisane@npa.gov.za
Heard: 20 August 2026
Delivered: 7 September 2026
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