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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION (MAIN SEAT)

CASE NO:  504/2020

In the ex parte application of:

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS                                              Applicant

and

PHILLIP GUMEDE                                                                                                            Defendant

 

JUDGMENT

 

Roelofse AJ:

 

Introduction

[1] The State wants to lay its hands upon the defendant’s property. The defendant is being accused of rhino poaching in the Kruger National Park (“the KNP”). This court is not going to allow the State to lay its hands upon the defendant’s property. Outraged, some may say that the court’s refusal to deprive the alleged poacher of his property is directly opposed to what society expects. After all, rhino poaching is a grave offence, unnecessary, brutally inhumane and must be stopped at all costs.

[2] I hope that, after this judgment is read, those who may be outraged will appreciate that fundamentally, courts must uphold the law even if the law dictates a result however unjust it may seem. Courts are not there to make popular decisions. I add the following rider: Courts are empowered to develop the common law and to declare what the Legislature enacted and what the Executive does unconstitutional. However, until such development or declaration is made, the law must be applied as it stands. This matter presents me with no opportunity or authority to change the law as it presently stands.

[3] I will briefly explain[1] in a short introduction in this judgment the reasons for my order in this matter before I go into the real intricacies the matter presents. I shall do so in only a few paragraphs. These intricacies relate to court process and the application of legislation, matters only other courts, legal practitioners or law academics may have a real interest in. I also deem it appropriate and necessary to commence with a summary because, due to the nature of the matter, ordinary people may want to know, without needing to go through the entire judgment, why I gave an order that goes against all which society may perceive to be deserving or just - depriving an alleged rhino poacher[2] of property because the State alleges that the defendant benefitted from that alleged crime.

 

Summary

[4] The defendant was employed by SANParks[3] in the world-renowned KNP. The KNP is located in the Mpumalanga Province in the Republic of South Africa.

[5] On 15 February 2109, two fresh white rhino horns were found in the defendant’s vehicle while he was underway in the KNP to one of the KNP’s main entrances. Equipment that is usually associated with rhino poaching was also found in his vehicle.[4] Shortly after the defendant was caught, investigations revealed that the horns belonged to two white rhino that were killed and maimed for their horns in the KNP only a few hours before.

[6] The defendant was immediately arrested and is presently standing trial in the lower court on charges of rhino poaching. Subsequent to the defendant’s arrest, the defendant was dismissed from his employment with SANParks.

[7] Rhino poaching is an organized crime. The Prevention of Organized Crime Act 121 of 1998 (“the POCA Act”) was enacted. The POCA Act came into operation on 21 January 1999. The POCA Act mainly provides for measures to combat organised crime which is threat to society on a Global scale.

[8] In terms of the POCA Act, no one may benefit from unlawful activities. The proceeds of unlawful activities may be seized, restrained, confiscated and realized by the State even if a conviction for such unlawful activity does not follow.

[9] The National Director of Public Prosecutions (“the NDPP”), in terms of the provisions of the POCA Act, approached the court on 18 February 2020[5]on an urgent basis and without notice to the defendant[6] for an order restraining the defendant’s pension fund. The NDPP alleges the pension fund is the defendant’s only realizable property. The NDPP says that it approached the court because the defendant wants his pension fund to be paid out to him and that the relevant pension fund has informed to NDPP that it was obliged to pay to the defendant his pension benefit unless a court order directs the pension fund otherwise.

[10] On 19 February 2020, I ordered that the defendant’s pension benefit shall be kept in the fund and that no moneys whatsoever may be paid from the fund to any person pending final judgment in the matter (“the order”).

[11] I directed a query to the NDPP. In essence, I requested the NDPP to assist the court with submissions over its reliance (or not) upon the decision of the Supreme Court of Appeal in National Director of Public Prosecution 2018 (2) SACR 176 (SCA) (to which I shall refer to as “the SCA decision”) which appears to give the NDPP the right to approach the court on an urgent basis and without notice to a defendant in POCA matters as of right.

[12] The NDPP delayed in their response for reasons that are not important save that this judgment was, as a result thereof, also delayed. The NDPP’s response was that, by virtue of the order I gave, the “….ex parte urgency issue is moot.”; This court cannot “…resurrect the ex parte urgency issue in this matter” and that the order I gave “….implied that it [the court] was satisfied that the pension money could be preserved but that the Honourable court will give reasons for decision later.”  In its response, the NDPP appears to rely upon the SCA decision for its approach to court in this matter.

[13] The issues I therefore must decide are threefold: (1) Does the order preclude this court from deciding the manner in which the NDPP approached the court and the preservability of the defendant’s pension fund (the mootness issue)? (2) Was the NDPP, upon a proper interpretation of the SCA decision, entitled to approach the court on an urgent basis and without notice to the defendant for a preservation order in in terms of POCA as of right (the procedural issue)?; and, (3) Is the defendant’s pension benefit susceptible to restraint in terms of POCA (the restraint issue)?

[14] As to the mootness issue, I find that the order was an interim order and as such not definitive of the issues to be decided. This court remained with the authority to finally determine the issues. This the court now does in this judgment.

[15] As to the procedural issue, I find that the SCA judgment, to the extent that it pronounced that all POCA matters are by their very nature urgent and that the POCA Act provides that the NDPP may approach the court on an urgent ex parte basis, the Supreme Court of Appeal did not intend (and it cannot be interpreted as to have intended) to deprive the court of its power to regulate its own process.

[16] As to the restraint issue, the Supreme Court of Appeal[7] has already pronounced that, because a pension benefit cannot be realised pursuant to a confiscation order, such benefit cannot be restrained in terms of s 26 of the POCA Act.

[17] I find against the NDPP on all three issues. The result of the finding on the procedural issue is that the application must be struck from the roll. The State cannot restraint the defendant’s pension.

[18] This concludes the summary.

 

Background facts and issues

[19] The Kruger is a national treasure and the pride of the Mpumalanga Province. South Africa is most probably best known for the Kruger. The Kruger comprises a vast natural reserve. The KNP is treasured for it is home to the Big Five.[8] Regrettably, rhino faces a serious threat of extinction for they are killed for their horns. Rhino horn is believed, amongst other things, to possess medicinal value. Rhino poaching is a scourge in the Kruger and elsewhere in South Africa. Considerable and due efforts are made, and large sums of money is spent on eradicating the senseless slaughter of rhino. Rhino poaching has led to public outcry with many people and institutions (many of them on voluntary basis) joining forces to eradicate the senseless slaughter of defenceless and vulnerable rhino.

[20] Rhino poaching is an organised crime for which severe punishment is the only appropriate remedy. Despite the risks, the syndicated killings of rhino for their horns continue and is intensifying not only in the KNP but also in other National Parks and Private Game Reserves. Undoubtedly, the sad and ugly scourge of rhino poaching must be eradicated at all cost.

[21] Legislation provides for measures to combat organized crime. Some of these measures are found in the Prevention of Organised Crime Act, 121 of 1998 (the POCA Act”). In Fraser v ABSA Bank Limited [2006] ZACC 24; 2007 (3) SA 484 (CC), at paragraph 1, Van der Westhuizen J said the following about the POCA Act:

“The Prevention of Organized Crime Act 121 of 1998 (POCA) was introduced to combat organised crime, money laundering and criminal gang activities, to prohibit racketeering and to provide for a range of related measures. One of its aims is to prevent criminals benefiting from the proceeds of their crimes. Consistent with that objective, Chapter 5 of POCA provides for the restraint, confiscation and realisation of property.” (Endnotes omitted).

[22] This matter concerns Chapter 5 of the POCA Act, in particular, the provisions of section 26[9] which provides for the restraint of realizable property held by a person against whom the restraint order is made.

[23] This matter principally raises both procedural and substantive issues. The procedural issues relate to the way the NDPP has approached court. The substantial issue deals with the order that is sought by the NDPP in respect of the defendant’s pension fund. In short, I must decide whether the NDPP was entitled to approach the court as it did as a matter of right and I must decide whether the defendant’s pension benefit is susceptible to restraint.

[24] I proceed to set out in the paragraphs which immediately follow what has been said many times before by our courts in relation to the procedural issues which should be trite by now. The NDPP’s response moves me to repeat what was already said. If what has been said many times before were properly understood and appreciated, the NDPP would have realized why more thought and contemplation should have gone into their response to my query. Instead, the NDPP appears to have simply brushed my desire to get the NDPP’s properly considered views because it was important for me in the adjudication of this matter. Well, it is water under the bridge and the NDPP was given an opportunity to participate meaningfully. That I would have appreciated.

 

Urgent applications and ex parte applications generally

[25] The resolution of complex legal issues or concepts must commence with the most basic elements which comprise such legal issues or concepts. I therefore proceed to briefly explain what an ex parte application is, what an urgent application is, the requirements for each of them and how this Division regulates its process with regard thereto. Then I proceed to set out what the Supreme Court of Appeal has said over the issue of notice and urgency in POCA matters.

[26] The first basic tenor to appreciate is that an ex parte application is not always urgent and an urgent application is not always brought without notice. Fundamentally therefore, an ex parte application is one thing and an urgent application is another thing. Each of these applications have their own requirements that must be complied with by a litigant. Ultimately, the circumstances of each matter will dictate whether notice is required to the other party and if the matter is urgent.

[27] The Uniform Rules of Court (“the Rule” or “the Rules”) separately provide for ex parte applications and for urgent applications.

[28] I deal with urgent applications first. Rule 6(12) regulates urgent applications. It provides as follows:

“(12) (a) In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet.

(b) In every affidavit or petition filed in support of any application under paragraph (a) of this subrule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.

(c) A person against whom an order was granted in his absence in an urgent application may by notice set down the matter for reconsideration of the order.”

[29] The entitlement of litigants to approach court on an urgent basis is trite. The applicant must establish urgency and the urgency must be to such a degree that the court is prepared to allow for a relaxation in respect of the normal requirements that are listed in sub-rule 6(12). If an applicant fails to establish urgency, the usual order is to strike the matter from the roll. Urgency must be concisely set out in the affidavit in support of the urgent application. The practice is that a separate heading in the affidavit in support of the application should be devoted to the reasons for urgency. Cogent reasons must be established. Irreparable harm must be apparent should the matter not be heard urgently.

[30] Litigants may take advantage to abuse the urgency procedure in order to get a procedural advantage over other litigants that have to wait in line for their matters to he heard.  In short, urgency and the absence of appropriate relief in due course must be evident from the evidence. In any event, sub-rule 6(12)(c) is clear – an applicant must explicitly set out his/her grounds of urgency.

[31] Rule 6(12)(a) expressly provides that the court “……may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet. This clearly enforces the court’s power and entitlement to regulate its process in dealing with urgent applications.

[32] I proceed with ex parte applications.

[33] First of all, the Rules differentiate between applications on notice and ex parte applications. Rule 6(5)(a) provides:

“Every application other than one brought ex parte (i.e. under Rule 6(4)) shall be brought on notice of motion as near as may be in accordance with Form 2 (a) of the First Schedule and true copies of the notice, and all annexures thereto, shall be served upon every party to whom notice thereof is to be given.”

[34] Secondly, Rule 6(4) provides for parties that may have an interest or who is affected by the order that was granted in their absence has the right to be heard if they wished to do so subsequent to the order. Rightly so because the right to be heard is a sacred and indispensable right in our Constitutional Order. Rule 6(4) provides as follows:

“(4) (a) Every application brought ex parte (whether by way of petition or upon notice to the registrar supported by an affidavit as aforesaid) 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.  If brought upon notice to the registrar, such notice shall set forth the form of order sought, specify the affidavit filed in support thereof, request him to place the matter on the roll for hearing, and be as near as may be in accordance with Form 2 of the First Schedule.

(b) Any person having an interest which may be affected by a decision on an application being brought ex parte, may deliver notice of an application by him for leave to oppose, supported by an affidavit setting forth the nature of such interest and the ground upon which he desires to be heard, whereupon the registrar shall set such application down for hearing at the same time as the application first mentioned.

(c) At the hearing the court may grant or dismiss either of or both such applications as the case may require, or may adjourn the same upon such terms as to the filing of further affidavits by either applicant or otherwise as to it seems meet.”

[35] The requirements for a party to satisfy in order to be heard ex parte and the issues the court must consider are trite. A litigant must say why notice to the other party is unnecessary or not required or must be dispensed of. This the applicant must say in the evidence (usually an affidavit) in support of the ex parte application. If no other person will be affected by the order sought on an ex parte basis, the court may grant a final order. If the order may or will impact upon the rights of another person or another person may have a legal interest in the order, the court usually grants an interim order with a return day in order to give all those affected by, or interested in, the order an opportunity to be heard. This supports what sub-rules 6(4)(b) and (c) provide for.

[36] The instances where ex parte applications are normally utilized are conveniently summarised by Erasmus, Superior Court Practice at RS 9, 2019, D1-61 of the electronic version of the publication and the authorities the learned authors refer to as follows:

“The phrase ex parte in this subrule contemplates the situation in which an application is brought without notice to anyone, either because no relief of a final nature is sought against any person, or because it is not necessary to give notice to the respondent.

An ex parte application is used:

(i) when the applicant is the only person who is interested in the relief which is being claimed;

(ii) where the relief sought is a preliminary step in the proceedings, e g applications to sue by edictal citation, for substituted service, to attach to found or confirm jurisdiction;

(iii) where the nature of the relief sought is such that the giving of notice may defeat the purpose of the application, e g an Anton Piller-type order;

(iv) where immediate relief, even though it may be temporary in nature, is essential because harm is imminent. In such cases the applicant will often seek a rule nisi, the application then being in the nature of an ex parte application in terms of this subrule;

(v) where certain kinds of applications are customarily brought ex parte. In this regard the local practice of the various divisions of the High Court differ….”

[37] In addition, in Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental Affairs [10], at paragraphs 80 and 81, it was said as follows over the use of ex parte procedures:

[80] It is a fundamental principle of the administration of justice that relief should not be granted against a person without allowing such person to be heard. Very rarely is a case so urgent that there is no time to give notice. In other cases, there may be a reasonable and substantiated apprehension that giving notice would defeat the applicant’s legitimate purpose in seeking relief, for example because the respondent would dispose of property or evidence that the applicant wishes to claim or have preserved. In cases of this kind a court may be willing to dispense with the need to give notice but this power should be exercised with great caution and only in exceptional circumstances. The procedure adopted is even more objectionable if the applicant's case rests largely on untested hearsay, which it was in this case.

[81] This approach also accords with the way in which English courts deal with ex parte applications. In Re First Express Ltd Hoffmann J said the following of the claimant’s use of ex parte proceedings:

‘I am firmly of the view that it was wrong for the application to be made ex parte. It is a basic principle of justice that an order should not be made against a party without giving him an opportunity to be heard. The only exception is when two conditions are satisfied. First, that giving him such an opportunity appears likely to cause injustice to the applicant, by reason either of the delay involved or the action which it appears likely that the respondent or others would take before the order can be made. Secondly, when the court is satisfied that any damage which the respondent may suffer through having to comply with the order is compensatable under the cross-undertaking or that the risk of uncompensatable loss is clearly outweighed by the risk of injustice to the applicant if the order is not made.

There is, I think, a tendency among applicants to think that a calculation of the balance of advantage and disadvantage in accordance with the second condition is sufficient to justify an ex parte order. In my view, this attitude should be discouraged. One does not reach any balancing of advantage and disadvantage unless the first condition has been satisfied. The principle audi alteram partem does not yield to a mere utilitarian calculation. It can be displaced only by invoking the overriding principle of justice which enables the court to act at once when it appears likely that otherwise injustice will be caused.’”(Footnotes omitted).

 

This Court’s Practice Directive

[38] This court’s Practice Directives (“the directive”)[11] separately provides for ex parte applications and urgent applications.

[39] The directive provides as follows in respect urgent applications:

“20. URGENT APPLICATIONS

20.1. Urgent applications will be heard at 10:00 on Tuesdays of each week.

20.2 Matters to be enrolled for hearing on Tuesdays at 10:00 in terms of 20.1 above must be filed with the Registrar on the preceding Wednesday not later than 12:00 to enable the Registrar to prepare the files and prepare the role for the following Tuesday.

20.3 [Paragraphs 20.3 to 20.3.7 deal with urgent applicati0ons enrolled for days other than Tuesdays and outside of normal court hours, which is not relevant for purposes of this judgment for the NDPP approached the court on the urgent roll on a Tuesday and within normal court hours]

[41] Paragraph 20.3.8 under the paragraphs in the directive dealing with urgent applications is particularly relevant for this application. Paragraph 20.3.8 deals with the enrolment of ex parte applications in general as well as ex parte applications brought on an urgent basis. It reads as follows:

“20.3.8 All ex parte applications must be enrolled on the unopposed motion roll and unless urgency is averred and satisfied in the papers, otherwise it will be struck off the roll due to lack of urgency.”

[40] The directive specifically provides for POCA matters in paragraph 11 thereof. This is what the directive, in relevant part, provides:

11. CASE MANAGEMENT OF POCA MATTERS

11.1 Applications brought on the Prevention of Organised Crime Act No 121 of 1998 shall also be subject to case management.

11.2 Such applications shall be initiated by enrolment thereof on the unopposed roll or urgent roll provided urgency is justified.

11.3 The high court may, after hearing a preservation application brought ex parte, grant the application if satisfied that the case for the order has been made.

11.4 In granting and application brought ex parte, the court shall issue a rule nisi as contemplated in NDPP v Muhammad and others 2003(4) SA1 (CC) at paras. 32 and 51; See also National Director of Public Prosecutions that (ex parte application) [2018] (2) SACR 176 (SCA) (31 May 2018) at para [25] and para 26……”

12.2 It is hereby directed that all POCA matters brought on an urgent basis and enrolled on the urgent roll shall be subject to paragraphs 20.1 to 20.3.5 and 20.3.8 of this practice directive.”

………………….

 

POCA applications in terms of section 26[12] of the POCA Act

[41] Section 26 of POCA[13] provides as for restraint orders. Sub-section 26(1) permits the NDPP to apply to court for a restraint order on an ex parte basis.

[42] The SCA decision dealt with the principles of POCA applications[14] with specific reference to section 38 of POCA and this court’s then Practice Directive (“the old directive”). I recite the convenient summary His Lordship Mr Justice Seriti JA provided in paragraphs 4 to 11 of the SCA decision:

“[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 plastics 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.”

[43] His Lordship Mr Justice Legodi JP was seized as the court a quo with the application which the SCA considered on appeal. What Legodi JP found in this judgment is traversed in the SCA decision as follows:

“[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.

“[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.”

“[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 [the old directive] 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.”

[44] The Practice Directives that are referred to in the SCA decision was replaced. The new provisions relevant to this matter is set out above. Over the court’s previous practice directive, the SCA decision in paragraph 31 as follows:

“[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.”

[45] The outcome of the SCA decision is set out in the SCA’s 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.”

 

The application before the court

[46] I return to the application that is before me.

[47] By virtue of the proceedings, I only have the NDPP’s version as appears from the affidavits that were filed on her behalf. This is what the NDPP alleges.

[48] The defendant was employed by SANParks. The defendant was stationed in the KNP. On 15 February 2019, the defendant travelled in his motor vehicle in the KNP from Skukuza to the Kruger Gate. Skukuza is the KNP’s main rest camp. The Kruger Gate is one of the entrances to the park situated near Hazyview in Mpumalanga. Park officials stopped the defendant. The defendant was dressed in SANPARKS corporate uniform. The defendant’s vehicle was searched. Two freshly removed rhino horns, a hunting rifle, wet clothing and wet shoes were discovered in the vehicle. The horns were found in a ruck sack behind the front passenger seat of the vehicle. The horns and rifle were wrapped in black refuge bags. The wet clothes were in a bag. The shoes were covered in mud and grass seeds. The defendant was arrested by SANPARKS officials and members of the South African National Defence Force.

[49] Three other people were also arrested by SANParks officials shortly before the defendant was arrested. They travelled in another vehicle on the same road some distance behind the defendant. These persons were interrogated by SANParks officials. The interrogation lead to the carcasses of two rhinos that were shot in the park shortly before the discovery. The horns that were found in the defendant’s vehicle were subsequently linked to the rhino carcasses.

[50] The defendant and the other persons that were arrested appeared in the Skukuza Magistrates Court shortly after their arrest. Subsequently, the case in the Magistrates Court were transferred to the Regional Court where rhino poaching cases are adjudicated for the penalties that may be imposed for rhino poaching exceeds the Magistrates Court jurisdiction.

[51] The defendant and his co-accused were released on bail. In the course of the proceedings before the Regional Court, the defendant’s co-accused absconded.

[52] The defendant was dismissed from his employment with SANParks after disciplinary proceedings. The defendant is a member of a provident fund provided for during his employment with SANParks. As a result of his dismissal, the defendant is entitled to withdraw the funds in his provident fund and has informed the fund that he wishes to do so. Hitherto, the fund has refused the defendant’s request on the basis of the criminal proceedings against the defendant. Due to the delay in the finalization of the criminal proceedings, the fund is no longer prepared to do so. The fund informed the NDPP that they will only keep the funds if they ore ordered by a court not to pay the defendant. 

[53] The NDPP says that the defendant’s pension fund is the defendant’s only realizable asset. The NDPP alleges that the defendant’s motor vehicle was returned by the NDPP to the title holder being the bank under which the vehicle was financed.

The NDPP’s application

[54] This is how the NDPP’s Notice of Motion, in relevant part, reads;

“Kindly take notice that the above named applicant intents applying to this honorable court on an urgent basis on 18 February 2020, in terms of section 26 of the Prevention of Organized Crime Act no 121 of 1998 (POCA), for an order in terms of the draft order annexed hereto.”(It was the NDPP’s emphasis in bold)

[55] The draft order provided for: Provisional restraint against dealing with realisable property of the defendant in order to surrender such property; Restraint; The property to be restrained (the property)[15]; Old Mutual’s Saccawu National Provident Fund[16]; Endorsement of the Defendant’s Pension Benefit[17]; Disclosure by “Defendants”; Disclosure by Donees of Affected Gifts and Beneficiaries; Duties of the Applicant; Refusal or failure to comply with the draft order is an offence; Service and a return day; and, Opposition; Anticipation of the return day; and Notice to other persons affected.

[56] The matter was called before me on the urgent roll on 18 February 2020. I cleared the court room and heard the application in camera. Adv Van der Walt, who is with the NDPP, stood up and immediately requested that the proposed draft order be made should the court be satisfied. It appeared to me that Mr. Van der Walt perceived that an order would be fait accompli.

[57] I was not satisfied and addressed the issue of urgency and whether the defendant’s pension fund was acceptable to a restraint order. I heard argument on the matter. I referred counsel to Sentinel supra where it was said in paragraph 14 as follows:

“It [a benefit in relation to a pension fund] therefore cannot be subject to any restraint under POCA. The fact that a payment becomes due and has accrued to the member does not change this.”

[58] Counsel for the NDPP requested that I stand the matter down so that he could prepare to address me on what was decided in Sentinel supra. I stood the matter down until 19 February 2020. On 19 February 2020, Mr Van der Walt furnished me with heads of argument and an amended draft order. According to Mr. Van der Walt, the original draft order was revised to make provision for that the defendant’s pension fund must, in the event it is paid out, be paid to a curator.

[59] I reserved my judgment but granted an interim order whereby the defendant’s pension money must remain with the fund pending final judgment in the matter. I also directed service of the order upon the defendant and the administrators of the defendant’s pension fund.

[60] On 25 February 2020, I wrote to the State Attorney, who is the NDPP’s attorney. In the letter I issued the following directive:

“The Applicant has approached this court in aforesaid proceedings on an urgent basis in an ex parte application as envisaged in section 26 of the Prevention of Organised Crime Act 21 of 1998 (“the POCA Act”).

The Rules 6(4)(a) and 6(12) of the Uniform Rules (“the Rule” or “Rules”) prescribe the procedure to be followed by all litigants (irrespective of their status) in ex parte and urgent applications respectively.

In both ex parte and urgent applications, the court has a discretion to grant relief pursuant to such applications irrespective of the status of the litigant concerned, such discretion to be exercised only in terms of the law.

This court, in terms of section 173 of the Constitution of the Republic of South Africa, 1996, has the power to regulate its process.

The NDPP is requested to assist this court with the following:

The provision for ex parte applications (as procedure) under section 26(1) and 38(1) of POCA:

To the extent that sections 26 and 38 of POCA allow the NDPP to approach court in terms of Rule 6(4)(a), i.e without notice to any other party, is the NDPP of the view that the power of the court to determine its own process and to exercise its discretion in any way limited by virtue of the provisions of section 26(1) and 38(1) of POCA (“POCA applications”)?

If the NDPP is of the view that the court’s power is limited in POCA applications where the NDPP is the litigant, would such imitation not be at odds with the provisions of sections 9, 34 and 39(2), read with section 8 of the Constitution?

The practice of bringing ex parte POCA applications on an urgent basis, apparently as of right

In paragraph 23 of National Director of Public Prosecution (Ex parte Application) 2018 (2) SACR 176 (SCA) (“NDPP”), at paragraph 23, His Lordship Mr Justice Seriti JA (Shongwe ADP, and Swain JA and Plasket and D Pillay AJJA concurring), said”), that: “I am in full agreement with the views of the court expressed herein.”  after referring to National Director of Public Prosecutions v Alexander & others 2001 (2) SACR 1 (T), where it was held that: “…..Presumably the Legislature regarded these proceedings as inherently sufficiently urgent [in respect of applications under section 26 of the POCA Act].

In paragraph 35 of NDPP (in respect of applications under section 38 of the POCA Act), the Court ruled that:

“Ex parte applications in terms of s 38 are by their nature urgent.”

Does the NDPP rely upon the above dictum in order to approach this court on an urgent basis in all applications under sections 26 and 38 of the POCA Act (“POCA applications”) as of right?

If the answer to the aforesaid question is in the affirmative, is the NDPP’s reliance upon the aforesaid dictum not misplaced, or, is the dictum, to the extent that it may provide a right to the NDPP to approach court on an urgent basis in all POCA applications and under any circumstances as of right, not at odds with sections 9, 34 and 39(2), read with section 8 of the Constitution?

Directive

To the extent that the aforesaid questions were not canvassed in this application thus far, the NDPP is hereby directed to file Heads of Argument addressing the questions and her response thereto, in general and with reference to this application. The Heads of Argument must be filed by e-mail at the address above by no later than 7 March 2020. If need be, oral argument may be required. In that event, arrangements that are mutually convenient shall be made.

[61] I received a response from the State Attorney on 13 March 2020. The State attorney appended to its response a letter from the NDPP. The response was signed by Adv Sibongile Mzinyathi, the Deputy National Director of Public Prosecutions – Head: Asset Forfeiture Unit.

[62] I recite the relevant parts of the response. It reads as follows:

“Assistance and Background

3. As to the request to assist the court, it is the respectful view of the applicant that the ex parte urgency issue is moot in this matter.

4. By implication the honorable court was satisfied that the matter was urgent and could be hurt on an ex parte basis. If that was not the case the court would not have Heard the application and would have struck the meter from the road as in other cases brought by the applicant.

5. the court granted an interim restraining order and remanded the matter for a judgment on the strength of pension money and by granting that older comma the court implied that it was satisfied that the pension money could be preserved but that the honorable court will give reasons for that decision later.

6. The applicant that submits that there is no basis in law for the Honorable Judge resurrect the ex parte urgency issue in this matter. 

The ex parte agency issue

7. The applicant relies on the wording of POCA and the clear unanimous decision of the SCA in the Ramadhani judgment combined with the president system for its views on ex parte urgent applications.

8. The constitutional court made its position clear that legislation should be deemed to be constitutional. In the absence of a party arguing something to the country the applicant submits that the constitutional issue cannot and should not arise in the matter.

9. In view of the above, the Applicant will not provide further input on the constitutional issues that the honorable judge has raised, since it will not take the matter further.

[63] I must immediately say that the NDPP’s clear failure to appreciate what my directive wanted to achieve is unfortunate indeed. This court may have been greatly assisted by the NDPP’s views if only the NDPP did not brush off the issues so lightly. What the NDPP is effectively saying is that this court should not concern itself with the issues that were raised in the directive as those issues have become moot by virtue of the granting of the order and that the NDPP maintains that it is entitled to approach the court in POCA matters on an urgent an ex parte basis as of right.

[64] In my view, having regard to the NDPP’s response, the NDPP clearly morphed the ex parte application and the urgent application into some kind of sui generis application, apparently because it is an application in terms of the POCA Act. The NDPP appears to be of the view that POCA applications are not subject to the principles relating to urgent and ex parte applications provided for in the Rules and the directive. I proceed to deal with the NDPP’s approach.

[65] The Notice of Motion does not include a prayer in terms of Rule 6(12)(a). It merely states that the court would be approached on an urgent basis. The NDPP did not pray that that  the court dispense with the forms and service provided for in the Rules and dispose of the application at such time and place and in such manner and in accordance with the procedure  the court seems meet.

[66] Insofar as the mere fact the NDPP approached the court on an ex parte basis which would dispense with the “forms and service” provided for in the Rules,  no mention is made of “such time and place and in such manner and in accordance with the procedure” the court seems meet. In my view, the time, place and manner the court deems meet is not addressed at all in the NDPP’s papers.

[67] The directive sets out how its process is regulated. It appears that the NDPP was totally oblivious of the directive insofar as it relates to ex parte applications, urgent applications and POCA matters.  Was it an oversight or was it because of the NDPP’s belief that it is entitled to approach the court in the manner it did as of right? I have reason to believe that it was the latter. If that was indeed the case, is the NDPP’s reliance founded upon the SCA decision? It appears so from the NDPP’s response to my request.

[68] The SCA decision in my view did not lay down the principle that the NDPP is entitled to approach the court on an urgent basis as of right when it said that “[E]x parte applications in terms of s 38 are by their nature urgent.”[18] Each matter must still be considered upon its own merits.

[69] In this matter, the NDPP was entitled to immediately upon the defendant’s arrest, approach the court in terms of section 26(1) of the POCA Act. The NDPP delayed and only approached the court more than one year later and only when the defendant wanted to withdraw his pension benefit from the pension fund. This appears from what the NDPP says in an in support of the application.

“Old Mutual [who holds the defendant’s pension fund], in collaboration with the victim of the above-mentioned crimes, namely SANParks, to date it refused to release the Defendant’s pension benefit in terms of, amongst others, section 37D(1)(b)(ii) of the Pension Funds Act 24 of 1956, as amended……”[19]

“Old Mutual informed the Applicant that due to the dragging of the criminal case (mainly due to the accused who had absconded[20]) they cannot hold onto the defendants pension benefit any longer without a formal High Court order. Old Mutual is therefore consider [sic] releasing the Defendant’s pension benefit if a formal court order is not soon forthcoming.”[21]

“As stated above, the pension benefit of the Defendant at Old Mutual, is the only realisable asset with real value to the victim of this matter namely SANParks, from which they may be able to recover their losses suffered because of the defendants criminal activity.”[22]

.

“If Old Mutual should release the Defendant’s pension benefit to him, the purpose of this application will be defeated and the victim (SANParks) will not be able to recover their losses from Defendant.”[23]

“The Applicant therefore pleads to this honorable court to hear this application on an urgent basis and to grant the relief sort in the draft order.”[24]

[70] The NDPP must observe the provisions of the directive. The NDPP is not absolved therefrom. The directive is clear: Applications brought in terms of the POCA Act shall also be subject to case management; Applications in terms of the POCA Act must be initiated by enrolment thereof on the court’s unopposed roll or urgent roll provided urgency is justified; and, the court may, after hearing a preservation application brought ex parte, grant the application if satisfied that the case for the order has been made.

[71] The NDPP failed to observe the provisions of the directive when it enrolled the application on the urgent roll in circumstances where the NDPP has, while entitled to approach the court many months before, only waited to bring the application when its perceived entitlement to the defendant’s pension fund was threatened. It is trite that a litigant must approach an urgent court as soon as soon as the jurisdictional facts are present for it to do so. Delay is frowned upon. Rightly so because the non-observance of this strict requirement will undoubtedly lead to the abuse of court process. The NDPP did not justify urgency and a case for granting the order on an urgent basis was not satisfied.

[72] Paragraph 20.3.8 of the directive is applicable to POCA matters. As set out above, in terms of paragraph 20.3.8 of the directive, all ex parte applications must be enrolled on the unopposed motion roll and unless urgency is averred and satisfied in the papers, otherwise it will be struck off the roll due to lack of urgency.

[73] This application lacks urgency, is not inherently urgent and must be struck from the roll.

[74] Even if I am wrong in this regard, I briefly deal with the only asset the NDPP seeks to preserve and ultimately, in terms of its draft order, wants to confiscate and realize – the defendant’s pension fund. In Sentinel supra, the NDPP successfully prosecuted a Mr. Ndebele n the High Court on racketeering charges in contravention of POCA. The High Court found that Mr. Ndebele had formed a criminal enterprise with another person and had benefitted from the illegal sales of electricity to Eskom to the value of R 8.9 million. The NDPP obtained a provisional restraint order, coupled with a rule nisi, against him in terms of section 26 of the POCA Act. The issue to be considered by the Supreme Court was set out as follows:

“At issue here is whether the curator’s authority extends to requiring Mr Ndebele’s pension pay-out to be paid to the curator once Mr Ndebele has elected to receive his pay-out and ceases to be a member of the fund.”

[75] After considering the provisions of section 37A(1) of the Pensions Fund Act 24 of 1956[25], the court found in paragraphs 10 and 11 of its judgment that:

“[10] Because pension benefits are protected in accordance with social security policy, the language used in s 37A(1) must be construed broadly to support this purpose. An ‘attachment’, in ordinary legal parlance, is the taking of property into the actual or constructive possession of a court of law, and ‘execution’, in this context, the enforcement of a court order or judgment.[5]

[11] A restraint order in terms of s 26 of POCA may prohibit any person from ‘dealing in any manner with any property to which the order relates’.[6] The order with which we are concerned prohibits any dealing with the property and also requires disclosure and surrender of the property to a curator bonis under the supervision of the court. So, once the order is executed and the curator bonis takes possession of the property there can be little doubt that the restraint constitutes both an attachment and a form of execution under an order of a court of law within the meaning of s 37A. And therefore falls within the section’s protective cloak.” [Footnotes omitted]

[76] I find that the defendant’s pension fund is not susceptible to a restraint order in terms of section 26 of the POCA Act.

[77] Before I conclude, I need to say that the unusual approach the NDPP employed in this matter (and other POCA applications I have dealt with) requires some comment. The Notice of Motion in this application (and the other POCA matters I was seized with) does not include a proper prayer for the court to enrol and hear the matter on the urgent roll. It does not include the normal urgency prayer in terms of Rule 6(12)(a). The papers are replete with evidence in separate affidavits that are repeated. This is unnecessary and only leads to papers that are more prolix than necessary. It appears that the NDPP makes use of templates in POCA applications. The use of templates in litigation is frowned upon by the courts and is also frowned upon by this court. The use of templates by the NDPP in POCA matters must cease. The NDPP should not approach POCA applications in the manner they did in this application. POCA applications have an important purpose. It seeks to combat crime. POCA applications also severely impact upon the rights of those against whom POCA applications are employed. It is a serious business and deserves proper attention by those who are tasked to prepare and bring POCA applications to court. They must act with the due expedience the POCA Act allows. Expedience will enhance the purpose of the POCA Act. Delays may thwart the NDPP’s efforts to take control of property as contemplated in the POCA Act for the property may be long gone when the NDPP eventually decides to act.

[78] In the premises, I make the following order:

(a)  The application is struck from the roll;

(b)  The order of 19 February 2020 is hereby discharged;

(c)  The State Attorney is directed to forthwith furnish a copy of this judgment to the managers of the Old Mutual SACCAWU National Provident Fund.

 

 

____________________________

 

Roelofse AJ

Acting Judge of the High Court

 

DATE OF HEARING: 18 and 19 February 2020

DATE OF JUDGMENT: 13 April 2020

 

APPEARANCES

FOR THE APPLICANT: Adv Van der Walt of the NDPP’s office

The State Attorney

[1] The Supreme Court of the United Kingdom, in each matter that is decided by that Court, furnishes a concise explanation of the Court’s judgment which is, in essence a short summary of the facts, issues that had to be decided, its decision on the issues and the reasons therefore. The entire judgment of the court is not read out, only the explanation is read out. One Judge of that Court usually reads out this “explanation” in open court, the proceedings are video recorded and made available on the internet.   “[T]he Supreme Court is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.” “[T]he Supreme Court's focus is on cases that raise points of law of general public importance. As with the former Appellate Committee of the House of Lords, appeals from many fields of law are likely to be selected for hearing, including commercial disputes, family matters, judicial review claims against public authorities and issues under the Human Rights Act 1998”. “As authorised by the Constitutional Reform Act 2005, Part 3, Section 23(1),[1] the Supreme Court of the United Kingdom was formally established on 1 October 2009.” The Court is constituted by 12 Judges. See:

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