The National Director of Public Prosecutions (NDPP) has successfully appealed a Durban High Court decision at the Supreme Court of Appeal (SCA) to forfeit R46,120 seized from taxi owner Sithembiso Gcaba, a member of the well-known Gcaba family.

The seizure occurred after police observed Gcaba engaged in suspicious and unlawful activity near an ATM at a petrol service station in March 2021. Upon searching him, officers discovered 69 orange Social Security Agency (SASSA) cards, along with a black bag containing additional SASSA cards and R7,640 in cash. An additional R39,800 was recovered from his vehicle. In total, the police seized R46,120.

Gcaba’s failure to provide a satisfactory explanation for the cards and money resulted in his arrest and a subsequent charge of 69 counts of fraud. He was later released on R5,000 bail. Police investigations revealed that the cards originated in Bloemfontein and were destined for various SASSA offices in KwaZulu-Natal.

Furthermore, it was established that R118,000 had been withdrawn from ATMs in the eThekwini region over a five-hour period using 62 of the 69 cards found in his possession.

Following the seizure, the NDPP sought a preservation order for the R46,120, which the Durban High Court granted on September 28, 2022. The High Court ordered the NDPP to publish a notice of the preservation order in the Government Gazette, which was published on October 14, 2022. 

The NDPP was also ordered to serve a copy of the order and the application on Gcaba through the sheriff. Additionally, copies must be served on anyone else known to have an interest in the money, and interested parties must be notified that they must formally oppose the forfeiture order if they wish to contest it.

While the preservation order was active, the NDPP filed for a forfeiture order on January 11, 2023, scheduled for hearing on April 20, 2023. The application was removed and reinstated several times on the court roll between April 20 and August 14, 2023. 

Crucially, Gcaba had not yet received the preservation order or the forfeiture application by August 14, 2023, despite several failed attempts by the State Attorney to have the sheriff serve the documents at his address.

The preservation order and forfeiture application were finally served personally on Gcaba on August 17, 2023, at the Durban Regional Court while he was attending his fraud case.

In October 2023, the Durban High Court heard the forfeiture application but dismissed it. The court ruled that, in terms of Section 40(a) of the Prevention of Organised Crime Act (POCA), the preservation order had expired because the forfeiture application was served on Gcaba after the mandatory 90-day deadline. Consequently, the preservation order was deemed invalid.

The NDPP subsequently appealed to the SCA, arguing that delays in serving the application should not invalidate the forfeiture process.

Acting Judge of the SCA, Robert Henney, ruled in favour of the NDPP, stating: “The evidence establishes on a balance of probabilities that the R46,120 is the proceeds of crime and that Gcaba can hardly make any lawful claim to it. Despite being served with relevant papers, including the preservation order and the forfeiture application, and having had 14 days to respond, Gcaba did not oppose the relief sought.”

Acting Judge Henney ordered that the forfeited money be deposited into the Criminal Asset Recovery Account at the Reserve Bank of South Africa. He also ordered the State Attorney to publish a notice of the forfeiture order in the Government Gazette. 

“The applicant is directed to deliver a copy of this order by hand, or through email to the Durban Central police station commander and the SAP13 Exhibit Clerk at Durban Central police station.”  

He further ordered that Gcaba be served with a copy of the SCA judgment within 20 days.

“Anyone affected by the forfeiture has 20 days to apply for the order to be varied or rescinded. Parties who did not receive notice of the forfeiture application have 45 days to apply to the High Court to protect their interest in the property. The forfeiture order will not take effect until the period for appeals has expired,” he said. 

nomonde.zondi@inl.co.za

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