Instrumentality of the offence

The question in Singh v National Director of Public Prosecutions [2007] 3 All SA 510 (SCA) was whether the property was an instrumentality of the offence and should therefore be attached. (Read more...)

Surrender of immovable property

In Mngomezulu and another v Van den Heever NO and another [2007] 2 All SA 357 (SCA) the Director of Public Prosecutions, acting in terms of the Prevention of Organised Crime Act 121 of 1998 (POCA), had obtained an ex parte provisional restraint order relating to certain realisable property, including a residential home, against the appellants.

Initially the first appellant surrendered the residential home to the curator bonis appointed to administer the property by vacating it. But after consultation with his legal representatives he insisted on resuming occupation of the property. (Read more...)

Confiscation orders

The Schabir Shaik-saga has contributed yet another chapter to the law reports. Following the much publicised Schabir Shaik corruption appeal, the SCA’s decision on the validity of the confiscation order granted against Shaik has now been reported under the citation of Shaik and Others v S [2007] 2 All SA 150 (SCA).

In the criminal trial of Shaik and his co-accused, they were convicted of several offences. The relevant one for purposes of the present matter was the contravention of s 1(1)(a) of the Corruption Act 94 of 1992. Following the criminal proceedings, the prosecution applied for the holding of an inquiry under s 18(1) of the Prevention of Organised Crime Act 121 of 1998 (POCA) into such benefits as Shaik and his co-accused (the appellants) may have derived from the corruption offence. The confiscation order was granted and the appellants were ordered to pay the State three amounts. The first was the value of the appellants’ shareholding in a company which was part of the consortium which won a munitions contract. The shareholding was acquired as a result of the first appellant’s (Shaik’s) corruptly obtaining intervention by the former Deputy-President. The second amount comprised dividends paid in respect of that shareholding, and the third amount represented the value of the appellants’ shareholding in another company. (Read more...)

Preservation orders

The appeal in National Director of Public Prosecutions v Van Staden and Others [2007] 2 All SA 1 (SCA) arose from five applications in the High Court, in which the National Director of Public Prosecutions (the NDPP), in anticipation of forfeiture applications being brought, sought orders for the preservation of motor vehicles that were alleged to have been driven in conditions which constituted criminal offences of driving a motor vehicle on a public road while under the influence of intoxicating liquor or while the concentration of alcohol in the driver’s blood exceeded the prescribed level. The court a quo dismissed the applications for preservation orders. On appeal, Nugent JA pointed out that Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 (Poca) authorises the NDPP to apply to a High Court, without notice, for an order that has the effect of temporarily depriving a person of property, so as to preserve the property in anticipation of an order being sought for its forfeiture. (Read more...)

Duty of disclosure in ex parte preservation orders

In National Director of Public Prosecutions v Braun and Another [2007] 1 All SA 211 (C) the applicant had been granted an ex parte preservation order on an urgent basis. Thereafter the first respondent, who had since fled the country, applied for a reconsideration of the order in terms of r 6(12) of the Uniform Rules of Court.

Traverso DJP set aside the preservation order, saying that by their very nature ex parte applications had to be decided on a one-sided version of events. As a result an applicant who approached a court in an application of that nature had a duty to disclose each and every fact and circumstance which could influence the court in deciding to grant or withhold the relief. If the applicant withheld material facts which could influence the court in coming to a decision, the court would be entitled to reconsider and rescind an order made, irrespective of whether the non-disclosure was wilful or mala fide. In the instant case the applicant did not disclose the fact that the application for a preservation order was not urgent at all as there was a long period extending over several months of negotiations and exchange of correspondence between the applicant and first respondent’s attorneys. (Source: www.derebus.org.za)

Non-forfeiture of assets used in the commission of organised crime

In National Director of Public Prosecutions v Gerber and Another 2007 (1) SA 512 (W) the second respondent was the owner of property on which she lived with her foster child, her mother and the first respondent, her partner. The first respondent, who had a drug habit, both cultivated and processed a large quantity of dagga (marijuana) on the property. In brief, the property was used as a dagga laboratory. The second respondent alleged that the first respondent coerced her into acquiescence since he threatened to leave her it she insisted that he stop his dagga dealing. After a preservation order was granted against the property in question in terms of the Prevention of Organised Crime Act 121 of 1998 (POCA), Schwartzman J dismissed with costs the application for a forfeiture order. The court said that an unrestricted application of ch 6 of POCA, and in particular, s 52(2A)(a), would result in the second respondent, who committed no wrong of any sort, intentional or negligent, being arbitrarily deprived of her property. Having regard to all the facts of the matter, it did not appear appropriate to make a forfeiture order that would leave the second respondent, her foster child and her elderly mother homeless. (Source: www.derebus.org.za)

Asset forfeiture

The facts in National Director of Public Prosecutions v Braun and another 2007 (1) SA 190 (C) were as follows: In an ex parte application the applicant (NDPP) sought an interim preservation of property order in terms of s 38 of the Prevention of Organised Crime Act 121 of 1998 (POCA).

The property concerned, a residential erf and a motor vehicle, were alleged to be instrumentalities of an offence. The first respondent (Braun) was the owner of the vehicle, whilst the immovable property was registered in the name of the second respondent, a limited company. A rule nisi having been issued, Braun set the matter down for reconsideration of the preservation order, acting in terms of r 6(12)(c) of the Uniform Rules. Braun alleged that the NDPP had failed to disclose certain material points that might have influenced the court not to grant the order. It was contended on behalf of the NDPP in limine, however, that r 6(12)(c) was in direct conflict with the provisions of POCA, and the rule could therefore not be invoked to undo something that was authorised by POCA. The NDPP further contended that, since Braun was a fugitive from justice, he was not entitled to rely on r 6(12)(c). (Read more...)

Section 28 of the Prevention of Organised Crime Act 121 of 1998 – curator bonis may be authorized to alienate property under restraint in order to properly administer the assets under his control.