NDPP wins appeal to forfeit R46,120 from taxi owner Sithembiso Gcaba
Sithembiso Gcaba, a KwaZulu-Natal taxi owner, faces legal repercussions as the NDPP secures a significant forfeiture of R46,120 linked to fraudulent SASSA card activities.
Image: File
THE National Director of Public Prosecutions (NDPP) has successfully appealed a decision made by the Durban High Court at the Supreme Court of Appeal (SCA), resulting in the forfeiture of R46,120 seized from taxi owner Sithembiso Gcaba, a member of the prominent Gcaba family.
The seizure took place in March 2021 when police observed Gcaba engaging in suspicious activities near an ATM at a petrol service station. Upon searching him, officers discovered 69 orange Social Security Agency (SASSA) cards, a black bag containing additional SASSA cards, and R7,640 in cash.
An additional R39,800 was also recovered from his vehicle, bringing the total amount seized to R46,120.
Gcaba's inability to satisfactorily explain the presence of the cards and cash led to his arrest, resulting in charges of 69 counts of fraud. He was subsequently released on R5,000 bail.
Investigations revealed that the cards originated in Bloemfontein and were intended for various SASSA offices across KwaZulu-Natal.
Further inquiries established that R118,000 had been withdrawn from ATMs in the eThekwini region within a five-hour window using 62 of the 69 cards found in Gcaba's possession.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 court mandated that the NDPP publish a notice of the preservation order in the Government Gazette, which was duly published on October 14, 2022.
The NDPP was also instructed to serve a copy of the order and the application on Gcaba through the sheriff. Additionally, copies were to be served on anyone else known to have an interest in the money, with interested parties required to formally oppose the forfeiture order if they wished to contest it.
While the preservation order was in effect, the NDPP filed for a forfeiture order on January 11, 2023, which was scheduled for a hearing on April 20, 2023. However, the application was removed and reinstated multiple times on the court roll between April 20 and August 14, 2023.
Significantly, 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 ultimately dismissed it. The court ruled that, according to 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, rendering the preservation order 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 instructed 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 added.
Furthermore, Gcaba was to 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 concluded.