The Mbombela High Court has dismissed an application by the National Prosecuting Authority (NPA) to seize an elderly couple’s R3 million Nelspruit property because their grandson grew cannabis on the premises.
Acting Judge Malose Monene lambasted the NPA for its offensive and constitutionally distasteful action in trying to use asset forfeiture laws against Hendrik and Yvonne Fourie, whose grandson, Warren Adams, admitted to growing cannabis on the property.
The court heard that during the course of 2021, the Fourie’s discovered Adams was growing cannabis plants in their backyard vegetable nursery and took stern exception. However, their 33 year old grandson assured them that he was not breaking the law as he was cultivating for personal use and for friends. During a police raid in 2022, the Fourie’s readily admitted to having the cannabis on the property, believing that no law had been transgressed. Nonetheless Adams was arrested and the cannabis seized and the matter is still pending before the Mbombela Regional Court.
Despite the fact that Adams has not been convicted as his case has not yet beeb heard, and that the Drugs and Drug Trafficking Act under which he was arrested, is due to be amended to remove cannabis, the NPA still bought the asset forfeiture application. The Fourie’s property, valued at over R3 million, is their primary residence and includes several rental units and a shelter for homeless people.
Justice Monene said the punishment the NPA was asking for was disproportionate to the alleged crime committed and in doing so it was not upholding the principles of justice.
“Such a forfeiture would be arbitrary, offensive to the recently much-debated constitutional right to property” Judge Monene said in his ruling, delivered on 16 July 2026 in the Mbombela High Court.
“It would be constitutionally distasteful when one considers the unmitigated harmful effect it would have on the first and second respondents’ housing needs at their advanced age. It would result in an arbitrary deprivation of property to not only the elderly couple but on all the people who benefit from the benevolent ubuntu of the first and second respondent in a country where human settlement as a key socio-economic right is a huge challenge. It would not only miss the purpose of the forfeiture principle in the Act but would be blind to the public interest”.
Justice Monene said that the fact that the owners were not accused of any crime involving the cannabis was significant, as was their belief that Adams’ actions were lawful.
“Ignorance of the law may not constitute justification for a crime for an accused, but it surely cannot be sufficient, in a constitutional dispensation premised on justice and fairness, for them who are neither charged nor suspected of any criminality by the state to lose their primary residences more so in their very advanced ages. This, in my view, is where the “innocent owner defence” comes into the picture”
The judge said the forfeiture “would be as disproportionate a measure to deter crime, if the property was indeed an instrumentality of an offence, as using a sledgehammer to kill a mosquito; regard being had to the value of the property (between R3million and R8 million) and the undetermined value of the relatively small amount of seized dagga. In this regard, the applicant’s attempt at arguing differential treatment between the rich and the poor and affecting to yearn to treat them equally by downplaying disproportion is unappealing to this court. Everyone deserving to be treated equally as the constitution provides, it remains true in Aristotelian fashion that until Utopia, injustice arises as much from treating equals unequally as it does from treating unequals equally.”
The state was ordered to pay costs.
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