THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 669/2020

In the matter of:

THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
(EX PARTE APPLICATION)
APPELLANT

Neutral citation:
The National Director of Public Prosecutions (Ex Parte Application)
(Case no 669/2020) [2021] ZASCA 142 (7 October 2021)

Coram:
SALDULKER, PLASKET and MBATHA JJA and MOLEFE and
UNTERHALTER AJJA

Heard:

27 August 2021

Delivered:

This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on
7 October 2021.

Summary:
Prevention of Organised Crime Act 121 of 1998 (POCA) – ss 26 and 38 –
Uniform Rules of Court – preservation of property order – urgency – whether the appellant
must prove urgency when applying for a preservation order.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Mpumalanga Division of the High Court, Mbombela (Roelofse AJ sitting
as court of first instance):
The appeal is upheld.
The order of the high court is set aside and substituted as follows:
‘(a) The appellant may re-enroll the application in terms of s 38(1) of the
Prevention of Organised Crime Act 121 of 1998 (POCA), in its original form as an
ex parte application, with the Registrar of the high court.
(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 high court, 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 POCA.’

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Molefe AJA (Saldulker, Plasket and Mbatha JJA and Unterhalter AJA concurring):

[1] This is an appeal against an order made by Roelofse AJ in the
Mpumalanga Division of the High Court, Mbombela (the high court), striking from the roll
an ex-parte application in terms of s 38 of the Prevention of Organised Crime Act 121 of
1998 (POCA) for a preservation order. The core issue in this appeal is whether the
appellant, the National Director of Public Prosecutions (the NDPP), is required, when
bringing an application in terms of s 38 of POCA, to deal with urgency in the founding
affidavit, and to make out a case for urgency before the merits of the matter may be
determined.

[2] The facts are briefly that on 16 August 2019, three men were found in a timber
plantation in Mpumalanga in possession of the carcasses of 11 grey duiker, four bush
buck, one mountain reed buck and one serval cat, which had recently been poached. The
carcasses and the rifle with which the animals were hunted were found in a Toyota Hilux
vehicle (the vehicle) which belonged to one of the men.

[3] The three men were arrested and charged with a number of offences in the
Graskop Magistrates’ Court (the magistrates’ court), where they were subsequently
admitted to bail. The vehicle and the rifle were seized by the South African Police Service
(SAPS) on 16 August 2019. The seizure was effected in terms of s 20 of the
Criminal Procedure Act 51 of 1997 (the CPA).1

1 This provision authorises the State, in accordance with Chapter 2 of the CPA, to seize an article which,
inter alia, ‘is concerned in or is on reasonable grounds believed to be concerned in the commission or
suspected commission of an offence’ or ‘which may afford evidence of the commission or suspected
commission of an offence’.

[4] The case was, without the knowledge of the prosecution, struck from the criminal
roll on 30 January 2020, and no reasons were provided on the record as to why this
occurred. The magistrate, mero motu, without an application brought on notice to the
prosecution, and in violation of the CPA,2 ordered the police to return the vehicle to one
of the accused, the registered owner of the vehicle.

[5] This turn of events prompted the NDPP to apply to the high court for a preservation
order in terms of s 38 of POCA. The matter served before Roelofse AJ who raised a
concern about the delay in the bringing of the s 38 application. He struck the matter from
the roll on the basis that urgency had not been established, as required by a practice
directive of the court, although he accepted that a proper case had been made out for the
granting of a preservation order on the merits. He granted the NDPP leave to appeal to
this Court.

[6] The NDPP does not accept that the requirements for urgency were not satisfied.
The core issue which has to be addressed in this appeal is whether the NDPP is required,
when bringing an application in terms of s 38 of POCA, to make out a case of urgency in
the founding affidavit before the merits can be determined. This requires a consideration
of the legislation, the practice directive, and case law, particularly the judgment of this
Court in Ex parte National Director of Public Prosecutions3 (Ramadhani).

[7] The starting point in this appeal is s 38 of the POCA, which sets out the procedure
that may be used to apply for a preservation order. It provides:
‘(1) The National Director may by way of 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;

2 S v Vorster and Another 2006 (1) SACR 611 (T).
3 National Director of Public Prosecutions [2018] ZASCA 86; 2018 (2) SACR 176 (SCA) The case
concerned a preservation order in relation to a vehicle owned by one Mr Ramadhani.

(b) is the proceeds of unlawful activities; or
(c) is property associated with terrorist and related activities.
(3) A High Court making a preservation of property order shall at the same time make an order
authorising the seizure of the property concerned by a police official, and any other ancillary
orders that the court considers appropriate for the proper, fair and effective execution of the order.
. . . .’

[8] Rule 6(4)(a) of the Uniform Rules of Court governs the procedure for setting down
ex parte applications. It provides that every application brought ex parte shall be filed with
the Registrar and set down before noon on the court day but one preceding the day on
which it is to be heard. The court may dispense with the forms and service provided for
in the 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
the rules) as it deems fit.

[9] The Constitutional Court held in National Director of Public Prosecutions and
Another v Mohamed NO and Others,4 that s 38(1) ‘. . . 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. . .’. In other words, the procedure prescribed by the statute that may
be used in an application for a preservation order is an ex parte application — which
dispenses with notice to the respondent and service of the papers.

[10] In Ramadhani,5  this Court decided an appeal against an order of the Mpumalanga
Division of the High Court striking from the roll an ex parte application for a preservation
order. This Court held:
10.1 that a then existing provision of a practice directive of the Mpumalanga Division of
the High Court governing ex parte POCA applications was inconsistent with Uniform Rule
6(4)(a) and with s 38 of POCA;

4 National Director of Public Prosecutions and Another v Mahomed N O and Others 2003 (1) SACR 561;
2003 (5) BCLR 476; 2003 (4) SA 1 (CC) para 33.
5 Ramadhani paras 29-33.

10.2 that the practice directive could not be applied to restrict, undermine or negate
these provisions;
10.3 that ex parte applications in terms of s 38 are by the by their nature urgent; and
10.4 that the approach to an ex parte application brought in terms of s 38(1) should be
that a judge in chambers ought to consider the application and make the appropriate order
as soon as it is reasonably and practically possible after such an application has been
filed with the Registrar.

[11] Pursuant to the Ramadhani judgment, the relevant practice directive was amended
to bring the directive into conformity with the judgment. That practice directive was
followed by one issued on 9 January 2020. The two practice directives embody similar
provisions. Paragraph 11.3 of the January 2020 practice directive provides that
applications in terms of POCA ‘shall be initiated by enrolment thereof on the unopposed
roll or urgent roll provided urgency is justified’.6 In terms of paragraph 11.5 of the
January 2020 practice directive, ‘[i]n granting an application brought ex parte . . . under
[section] 38 of POCA, the court shall issue a rule nisi by completion of Form C to this
Practice Directive seen in the context of the case of NDPP V Mohamed and Others 2003
(4) SA 1 (CC) at paras [32] and [51]. . .’.7

[12] It is important to highlight that paragraph 8 of the practice directive deals with
unopposed applications. According to paragraph 8.1, unopposed applications are heard
on Mondays and Fridays of the first, fourth and seventh weeks of every term, and the
number of matters to be heard each day is limited to 100 matters divided between two
judges. Paragraphs 8.4 and 8.5 deal with the setting down of unopposed matters. These
paragraphs state:
‘8.4
The applicant shall ensure that papers are ready, i.e. indexed, paginated and bound
together and filed with the Registrar’s clerk by not later than 12h00 on a Monday and Friday
preceding the hearing on the following Monday and Friday of the motion week.

6 Paragraph 11.2 of the July 2019 Practice Directive contains a similar provision.
7 Paragraph 11.4 of the July 2019 Practice Directives contains a similar provision.

8.5
The Registrar’s clerk shall prepare the files and hand them over to the respective Judges
by not later than 16h00 on a Monday and Friday preceding the week of hearing as indicated in
8.4 above.’

[13] Urgent applications may, according to paragraph 10.1 of the practice directive, ‘. .
. be heard at 10h00 on every Tuesday of each week’, and according to paragraph 10.3,
it is only in exceptional circumstances that urgent application will be heard at a different
time or a different day. This paragraph regulates the setting down of ‘normal’ urgent
application. They ‘must be filed with the Registrar by no later than 12h00 on Thursday of
the preceding week to enable the Registrar to prepare and submit in time the file(s) to the
judge on the urgent roll’. Paragraph 10.7 of the practice directive is one of the number of
paragraphs dealing with ex parte applications. It provides that ‘[a]ll ex parte applications
must be enrolled on the unopposed motion roll and unless urgency is averred and
satisfied in the papers, it may be enrolled on the urgent roll’. (It appears that the word
‘unless’ is intended to be ‘if’.)

[14] This Court in Ramadhani explained how a practice directive stands in relation to a
statute, the Uniform Rules and the common law. Seriti JA held in this respect, that:
‘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 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.’8

[15] The practice directives require an applicant in an urgent application to set out
explicitly the circumstances which render the matter urgent. They further emphasise that
while an application may be urgent, it may not be sufficiently urgent to be heard at the

8 Ramadhani para 31.

time selected by the applicant. Furthermore, the practice directive provides that should
the directives regarding urgent applications not be adhered to, the application will be
struck off the roll. On the other hand, the NDPP contends that s 38 applications are by
their nature inherently urgent, and there is no need to establish urgency in such matters.

[16] It is important to note that the Ramadhani judgment was not the first judgment to
pronounce on the nature of applications in terms of s 38 of POCA. The Ramadhani
judgment quoted with approval the dictum in the National Director Public Prosecutions v
Alexander and Others,9 where the court stated that it was to be presumed that the
Legislature intended POCA proceedings to be ‘inherently sufficiently urgent’.

[17] Regrettably, the aforementioned approach was overlooked by Roelofse AJ. The
high court practice directives are incompatible with the nature of POCA applications and
rule 6(4)(a). The misclassification of the s 38 applications as ordinary urgent applications
was irregular.

[18] The set down of urgent applications and unopposed applications in terms of
paragraph 11.3 read with paragraphs 8.4 and 10.2 of the practice directives are clearly in
conflict with the Uniform Rules. They set strict timelines and requirements as to the
hearing of a s 38 POCA application, thereby detracting from Ramadhani, where this Court
held that such applications must be heard as soon as reasonably and practicably possible
, as they are inherently urgent. It is untenable to give effect to s 38 of POCA by recourse
to practice directives that may delay the hearing of an application for a forfeiture order.

[19] Practice directives provide essential guidance for the daily functioning of the
courts. Practice directives may not derogate from legislation, the common law or rules of
court that have obligatory force. A statute that permits the use of a procedure so as to
make its enforcement effective must be adhered to. The competence of the courts to give
practice directives is an important means by which the work of the courts may be carried

9 National Director Public Prosecutions v Alexander and Others 2001 (2) SACR 1 (T) at 13A-D.

out. However, practice directives must facilitate what a statute requires. Practice
directives should not place obstacles in the way of achieving the objects of a statute.

[20] The high court, therefore, erred in the following respects. Firstly, in not finding that
by its very nature, an application for a preservation order is inherently urgent, and that the
appellant was entitled, as a matter of law, to approach the court ex parte, and by way of
notice provided for in rule 6(4)(a), without having specifically to make out a case for
urgency. Secondly, the high court erred in treating the practice directive as if it has
statutory force that overrides the provisions of the POCA and the Uniform Rules. As the
court below misdirected itself in these respects, when it struck the matter from the roll,
the appeal must succeed.

[21] In the result, I make the following order.
The appeal is upheld.
The order of the high court is set aside and substituted as follows:
‘(a) The appellant may re-enroll the application in terms of s 38(1) of the
Prevention of Organised Crime Act 121 of 1998 (POCA), in its original form as an
ex parte application, with the Registrar of the high court.
(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 high court, 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 POCA.’

____________________
D S MOLEFE
Acting Judge of Appeal

APPEARANCES:

For Appellant:

A J Freund SC (appearing with S J van der Walt)
Instructed by:

The State Attorney, Mbombela

The State Attorney, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

7 October 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
The National Director of Public Prosecutions (Ex Parte Application) (Case no 669/2020) [2021] ZASCA 142 (7
October 2021)
Today the Supreme Court of Appeal (SCA) upheld the appeal by the appellant and set aside the order of the high
court.
The case concerned an appeal against an order made by Roelofse AJ in the Mpumalanga Division of the
High Court, Mbombela (the high court), striking from the roll an ex-parte application in terms of s 38 of the
Prevention of Organised Crime Act 121 of 1998 (POCA) for a preservation order. The practice directives required
an applicant in an urgent application to set out explicitly the circumstances which render the matter urgent. The
practice directive provided that should the directives regarding urgent applications not be adhered to, the
application will be struck off the roll. The core issue in this appeal was whether the appellant, the National Director
of Public Prosecutions (the NDPP), was required, when bringing an application in terms of s 38 of POCA, to make
out a case of urgency in the founding affidavit, before the merits of the matter may be determined.

The SCA held that this court had in National Director of Public Prosecutions [2018] ZASC 86; 2018(2) SACR
176 (SCA) (Ramadhani) decided an appeal against an order of the Mpumalanga Division of the High Court
striking from the roll an ex parte application for a preservation order, and held there that an existing provision of
a practice directive in that division governing ex parte POCA applications was inconsistent with Uniform Rule
6(4)(a) and with s38 of POCA. The SCA held that this court had explained in Ramadhani how a practice directive
stood in relation to a statute.  The SCA found that the high court, erred in the following respects. Firstly, in not
finding that by its very nature, an application for a preservation order is inherently urgent, and that the appellant
was entitled, as a matter of law, to approach the court ex parte, and by way of notice provided for in rule 6(4)(a),
without having specifically to make out a case for urgency. Secondly, the high court erred in treating the practice
directive as if it has statutory force that overrides the provisions of the POCA and the Uniform Rules.

The SCA held that the high court practice directives are incompatible with the nature of POCA applications and
rule 6(4)(a). Practice directives provide essential guidance for the daily functioning of the courts, and may not

derogate from legislation, the common law, or rules of court that have obligatory force. Practice directives should
not place obstacles in the way of achieving the objects of a statute. As the court below misdirected itself in these
respects, when it struck the matter from the roll, the SCA found that the appeal must succeed.
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