National Director of Public Prosecutions and Another v Mohamed NO and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'Regan J, Sachs J, Du Plessis AJ and Skweyiya AJ
• Judgment Date: 12 June 2002
• Citation: 2002 (4) SA 843 (CC)
• Docket Number: CCT 13/02
• Hearing Date: 21 May 2002
• Counsel: D Marais for the applicants W H Trengove SC (with J L van der Merwe SC, A P H Cockrell, R Chinner and V Ngalwana) for the respondents.
• Court: Constitutional Court

Ackermann J:

Introduction

[1] This case concerns the constitutional validity of s 38 ('the section' or 's 38') of the Prevention of Organised Crime Act [1] (the Act). The section reads: I

'38 Preservation of property orders

(1) The National Director may by way of an ex parte application apply to

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a High Court for an order prohibiting any person, subject to such conditions and exceptions as may be specified in the A order, from dealing in any manner with any property.

(2) The High Court shall make an order referred to in ss (1) if there are reasonable grounds to believe that the property concerned -

(a)

is an instrumentality of an offence referred to in Schedule 1; or

(b)

is the proceeds of unlawful activities. B

(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.

(4) Property seized under ss (3) shall be dealt with in accordance with the directions of the High Court which made the relevant preservation of property order.' C

In terms of s 1 of the Act a 'preservation of property order' means 'an order referred to in s 38'.

[2] On 19 March 2002 Cloete J, sitting in the Witwatersrand High Court (the High Court), declared the section to be constitutionally invalid D

'to the extent that it requires the NDPP [the National Director of Public Prosecutions] to bring an application for a preservation of property order ex parte in every case and makes no provision for a rule nisi calling upon interested parties to show cause why a preservation of property and seizure order should not be made.' [2] E

[3] The High Court's full order reads as follows:

'1.1

Section 38 of Act 121 of 1998 is (subject to the confirmation of the Constitutional Court) declared unconstitutional with effect from the date of this judgment to the extent that it requires the NDPP to bring an application for a preservation of property order ex parte in every case and makes no provision for a rule nisi calling upon interested parties to show F cause why a preservation of property and seizure order should not be made.

1.2

In terms of s 172(1)(b) of the Constitution (and again, subject to the confirmation of the Constitutional Court) it is ordered that the declaration of invalidity made in para 1.1 shall invalidate:

1.2.1

any preservation of property order and concomitant seizure order made in terms of s 38 of Act 121 of 1998 which as at the date of G this judgment either has not yet been superseded by a forfeiture order made in terms of part 3 of chap 6 of that Act or which is still in force in terms of s 55 of the Act pending an appeal against a forfeiture order; and also

1.2.2

any forfeiture order made under part 3 of chap 6 of Act 121 H of 1998 which has not yet taken effect in terms of the provisions of s 50(6) of that Act,

where the preservation order or seizure order (in the case of 1.2.2, which preceded the forfeiture order) was granted ex parte and where no rule nisi was issued calling upon interested parties to show cause why such an order should not be made. I

2.

The orders contained in para 1 are referred to the Constitutional Court for confirmation.

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3.

These proceedings are postponed pending the decision of the Constitutional Court and the costs to date are reserved.' A

Paragraph 1 of this order serves before this Court for confirmation under the provisions of s 172(2) of the Constitution. I shall deal presently more fully with the issues before this Court.

[4] Section 34 of the Constitution provides, to the extent relevant for the present case, that B

'[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court . . . '.

The High Court found that the section infringed (limited) the fair hearing component of the s 34 right and that such limitation was not justifiable under s 36 of the Constitution. C

[5] First appellant is the National Director of Public Prosecutions (the National Director). Second appellant is the Minister of Justice and Constitutional Development (the Minister). The first three respondents are trustees of the Zunaid Family Trust (the Trust) and owners in this capacity of certain fixed property (the Trust property). First and fourth respondents claim a further personal D interest in the Trust property. Further fixed property (the other property) also features in the case. The four respondents will be referred to jointly as 'the respondents', bearing in mind that they were the applicants in a counter-application brought in the High Court, to which reference will presently be made. E

The High Court litigation

[6] The case arose from the granting of a preservation of property order under s 38 of the Act. The order was made by the High Court on 4 October 2000 on the ex parte application of the National Director. The order was published in the Government Gazette of 13 October 2000 in terms of s 39(1) of the Act F and served, amongst others, on the first to third respondents. On 11 January 2001, the National Director launched an application in terms of s 48 of the Act for the forfeiture of the immovable property that had been the subject of the preservation of property order. A counter-application, joining the Minister, was then launched by the G respondents seeking the following relief: first, a declaration that the whole of chap 6 of the Act (that is ss 37 to 62 of the Act, inclusive) is inconsistent with the Constitution and therefore invalid; secondly, the reconsideration of the preservation of property order in terms of Rule 6(12)(c) of the Rules of Court and thereupon its dismissal; and, thirdly, condonation of their failure to enter an H appearance to oppose the forfeiture proceedings.

[7] The High Court dealt with the second and third heads of relief first. It came to the conclusion, for reasons that are not presently relevant, that Uniform Rule of Court 6(12)(c) did not apply to the application brought by the National Director and further refused the condonation application. The High Court accordingly I concluded that 'the applicants' only chance of success lies in the constitutional challenge to the validity of chap 6 of the Act'.

[8] The notice of motion to the respondents' counter-application J

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sought, in effect, an order declaring the whole of chap 6 of the Act to be constitutionally invalid because of its A inconsistency with ss 25(1), [3] 34 and 35(3) [4] of the Constitution. In the founding affidavit to the counter-application it was contended that ss 38, 39, 48, 49, 50 and 52 of the Act (all sections contained in chap 6) were constitutionally invalid and that, as a result of their unconstitutionality, 'the entire chap 6 of the Act is in fact unconstitutional'. B

[9] Certain procedural preliminaries need to be clarified and disposed of. They relate to a failure by the appellants to lodge an appeal against the High Court order and to the admission of documents under Constitutional Court Rule 30. Section 172(2)(a), (c) and (d) of the Constitution enact the C following:

'172 Powers of courts in constitutional matters

. . .

(2)(a) The Supreme Court of Appeal, a High Court or a Court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of D the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

(b)

. . .

(c)

National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court. E

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(d)

Any person or organ of State with a sufficient interest may appeal, or apply, directly to the Constitutional Court to A confirm or vary an order of constitutional invalidity by a Court in terms of this subsection.'

[10] Constitutional Court Rule 15 deals with the confirmation of an order of constitutional invalidity made by the Supreme Court of Appeal or a High Court and states: B

'15 Confirmation of an order of constitutional invalidity

(1) The Registrar of a Court which has made an order of constitutional invalidity as contemplated in s 172 of the Constitution shall, within 15 days of such order, lodge with the Registrar of the Court a copy of such order.

(2) A person or organ of State entitled to do so and desirous of appealing against such an order in terms of s 172(2)(d) of the Constitution shall, within 21 days of the making of such order, C lodge a notice of appeal with the Registrar and a copy thereof with the Registrar of the Court which made the order, whereupon the matter shall be disposed of in accordance with directions given by the President.

(3) The appellant shall in such notice of appeal set forth clearly the grounds on which the appeal is brought, indicating which findings of fact and/or law are appealed against and what order it is contended D ought to have been made.

(4) A person or organ of State entitled to do so and desirous of applying for the confirmation of an order in terms of s 172(2)(d) of the Constitution shall, within 21 days of the making of such order, lodge an application for such confirmation with the Registrar and a copy thereof with the Registrar of the Court which made the order, whereupon the matter shall be disposed of in accordance with directions given by the President. E

(5) If no notice or application as contemplated in subrules (2) and (4), respectively, has been lodged within the time prescribed, the matter of the confirmation of the order of invalidity shall be disposed of in accordance with directions given by the...