- The wife was never notified or included in the court case about the family home and Range Rover.
- The High Court found her rights as a spouse in a joint estate were directly affected.
- The case will return to court to decide if she qualifies as an innocent owner under POCA.
A woman whose family home and Range Rover were forfeited to the State has won the right to challenge the forfeiture after a High Court in the North West found that she should have been included in the original proceedings.
Nthabiseng Jelly Selabe successfully applied to have part of a 2018 forfeiture order set aside after the court found that the National Director of Public Prosecutions (NDPP) failed to notify her despite knowing she was married in community of property to Dingaan David Selabe, a religious leader.
The assets at the centre of the dispute are a dwelling house in Majemantsho Village near Mahikeng and a Land Rover Range Rover. Both formed part of the couple’s joint estate.
Wife left out of proceedings
The forfeiture proceedings stemmed from a preservation order granted in September 2014 under the Prevention of Organised Crime Act (POCA). The NDPP later sought a final forfeiture order in respect of the house and vehicle.
Although the NDPP’s own papers identified Nthabiseng Selabe as the wife of the second respondent, she was not cited as a party, was not served with the application and was not allowed to oppose the forfeiture.
She told the court that she only became aware of the forfeiture judgment on 18 June 2018 when her husband showed her a copy of the order.
The court noted that she and her husband had been married in community of property since October 2007, meaning she held an undivided half share in the joint estate.
“The forfeiture of these assets therefore directly extinguished the applicant’s undivided half-share interest in them,” the court said.
NDPP opposed the application
The NDPP argued that Selabe should be regarded as having constructive knowledge of the proceedings because the preservation order had been published in the Government Gazette.
It also contended that she was not an innocent owner and alleged that she had participated in or benefited from her husband’s unlawful activities.
The NDPP further argued that she should have relied on other provisions of POCA rather than bringing a rescission application.
The court finds wife had a direct interest
Judge President RD Hendricks rejected the NDPP’s arguments and found that the applicant had a direct and material interest in the forfeited property.
The court held that the NDPP knew or ought to have known that she had an interest in the assets because of the marriage in community of property.
“The failure to give her notice as required by Section 39(3) was a breach of the statute and a procedural irregularity of substance,” the judgment states.
The court also found that publication in the Government Gazette did not relieve the NDPP of its obligation to notify a specifically identified person whose interest in the property was already known.
“It does not, however, constitute adequate notice to a specifically identified individual who had been named in the NDPP’s own papers as the wife of the respondent and who had a legal interest in the property by reason of a registered marriage in community of property,” the court stated.
Innocent owner claim still to be tested
Selabe argued that the house and vehicle were acquired through legitimate means, including proceeds from the sale of a previous home, income from her clothing business, her husband’s earnings and donations received in his role as a minister of religion.
The NDPP disputed those claims and pointed to her indictment alongside her husband in related criminal proceedings. However, the court found that the issue could not be conclusively resolved on the papers before it.
“The applicant’s indictment as a co-accused in the criminal proceedings is not a conviction,” the court said. “An indictment reflects a decision by the prosecutorial authority that there is a prima facie case. It does not constitute evidence of guilt.”
The court held that Selabe must be allowed to advance an innocent owner claim under Section 52(1) of POCA.
Fresh hearing ordered
The court declined to set aside the entire forfeiture order, finding that the original order remained valid in relation to her husband.
Instead, it rescinded the order only to the extent that it affected Selabe’s interest without allowing her to participate in the proceedings.
The NDPP was directed to enrol fresh proceedings within 60 days to determine whether her share in the family home and Range Rover should be excluded from forfeiture because she is an innocent owner.
Pending that determination, the preservation order remains in force, and the curator bonis will continue administering the assets. The question of costs was reserved for the future hearing.
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