National Director of Public Prosecution
(Ex parte Application)
2018 (2) SACR 176 (SCA)
The National Director of Public
Prosecutions (NDPP) applied ex parte
to the High Court in terms of s 38(1) of the Prevention of Organised Crime Act
121 of 1998 (POCA) for a
preservation order in respect of a motor vehicle which was found by police
officers to contain a concealed compartment in which they found 50 kilograms of
heroin.
The court a quo dismissed the
application, finding that the NDPP, to proceed with such an application, had to
show a real possibility that the vehicle would be lost to them if the driver or
owner thereof came to know about the application for the order. Furthermore,
that bringing the preservation application in terms of s 38, for possible
forfeiture under s 48 of POCA (read with s 50), without giving notice, amounted
to an abuse of the provision. In addition, such an application had to comply
with the provisions of the practice directives of the Mpumalanga High Court
and, in particular, paras 2.5.5.2 and 2.5.5.3.
The Supreme Court of Appeal, on appeal
by the appellant, held as follows:
-
That
s 38 did not require the NDPP to show a real possibility that the property in
question would be lost if the owner came to know about the application for a
preservation order, and it was entitled to launch an application in terms of s
38 by way of an ex parte application. The provisions of Chapter 6 of POCA were
not conviction-based, but were civil remedies which the NDPP could invoke even
if a conviction was lacking. It was not an abuse of s 38 if the NDPP decided to
approach the court in terms of the section by way of an ex parte application.
Paragraphs
20 – 21 and 24 of the SCA judgment
-
Further,
that it was not competent for the Court to interfere with the decision of the State
to follow a particular forfeiture process. The NDPP had legitimately chosen to
proceed in terms of Chapter 6 of POCA, and such a decision had to be respected
by the court.
Paragraph
28 of the SCA judgment
-
Further,
that the provisions of paras 2.5.5.2 and 2.5.5.3 of the practice directives of
the Mpumalanga High Court were inconsistent with the provisions of s 38 of POCA
insofar as it suggested that an ex parte application would not be heard, except
where notice of the application was not required by, and would not adversely
affect, any person, and that any other ex parte application would only be
enrolled and heard in exceptional circumstances. The practice directive was
subordinate to any relevant statute, the common law and the Uniform Rules, and
could not be applied to restrict or undermine such. The practice directives essentially
dealt with the daily functioning of the courts and their purpose was to
supplement the Rules of Court.
Paragraphs
30 – 31 of the SCA judgment
The appeal was allowed, and the
appellant was given leave to re-enrol the application in its original form as
an ex parte application.
