ABSA Bank Ltd v Fraser and Another (386/2005) [2005] ZASCA 107; [2006] 2 All SA 1 (SCA) (24 November 2005)

ABSA Bank Ltd v Fraser and Another (386/2005) [2005] ZASCA 107; [2006] 2 All SA 1 (SCA) (24 November 2005)

The Supreme Court of Appeal held that section 33(1) of the Prevention of Organised Crime Act does not exclude the interests of concurrent creditors in restrained property. The Act does not confer a preference for the defendant's legal expenses or the State's claim over proven concurrent creditor claims. The High Court retains a wide discretion to entertain applications by persons with claims in restrained property and may direct payments to such creditors before satisfaction of a confiscation order. The court below erred in finding that it was precluded by section 33(1) from taking account of ABSA's claim and in dismissing ABSA's application to intervene. The dismissal of ABSA's...

Citation
[2005] ZASCA 107
Parties
Appellant: ABSA Bank Limited; Respondent: Trent Gore Fraser; Respondent: Portion 3 Lavianto CC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 November 2005
Case Number
386/2005
Procedural Posture
Civil Appeal / Appeal From High Court Judgment Refusing Intervention and Granting Legal Expenses Order
Outcome
Appeal upheld. ABSA granted leave to intervene and to appeal against the order granting Fraser legal expenses. Orders of the court below set aside and substituted.
Judges
Mpati, Cameron, Nugent, Mlambo, Nkabinde
Legal Topics
Prevention of Organised Crime Act, Restraint Order, Confiscation Order, Concurrent Creditors, Legal Expenses, Creditor Intervention
Criminal Law Civil Procedure Prevention of Organised Crime Act Restraint Order Confiscation Order Concurrent Creditors Legal Expenses Creditor Intervention

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Parties

ABSA Bank Limited

Appellant

Trent Gore Fraser

Respondent

Portion 3 Lavianto CC

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment Refusing Intervention and Granting Legal Expenses Order

Legal Issues

  1. 1 Whether an unsecured judgment creditor may intervene in proceedings concerning property restrained under the Prevention of Organised Crime Act.
  2. 2 Whether a restraint order under the Act confers a preference for the defendant's legal expenses over proven concurrent creditor claims.
  3. 3 Whether section 33(1) of the Act excludes concurrent creditors' interests in restrained property.

Ratio Decidendi

The Supreme Court of Appeal held that section 33(1) of the Prevention of Organised Crime Act does not exclude the interests of concurrent creditors in restrained property. The Act does not confer a preference for the defendant's legal expenses or the State's claim over proven concurrent creditor claims. The High Court retains a wide discretion to entertain applications by persons with claims in restrained property and may direct payments to such creditors before satisfaction of a confiscation order. The court below erred in finding that it was precluded by section 33(1) from taking account of ABSA's claim and in dismissing ABSA's application to intervene. The dismissal of ABSA's...

Court Disposition

Appeal upheld. ABSA granted leave to intervene and to appeal against the order granting Fraser legal expenses. Orders of the court below set aside and substituted.

Orders

  • The appeal against the dismissal of ABSA's application to intervene is upheld.
  • ABSA is granted leave to appeal against the order made by the court a quo in favour of the first respondent. The costs of that application are to be costs in the appeal.