Bowker v Ferreira NO and Another (2109/11) [2011] ZAECGHC 47 (22 September 2011)

Bowker v Ferreira NO and Another (2109/11) [2011] ZAECGHC 47 (22 September 2011)

The court found that the funds sought by the applicant for legal expenses were almost entirely derived from assets misappropriated from the victim and his close corporation. The applicant admitted substantial indebtedness, and the restrained assets may not be sufficient to cover the outstanding debt. Releasing the funds would result in dissipation of assets to the prejudice of the victim. The applicant had not applied for legal aid, which she would likely qualify for, and instead sought to employ counsel of her own choice using disputed funds. The court held that the applicant is not entitled to use misappropriated assets for legal expenses where substantial prejudice to the victim would...

Citation
[2011] ZAECGHC 47
Parties
Applicant: Louise Natalie Bowker; Respondent: Nardus Ferreira N.O; Respondent: The National Director of Public Prosecutions
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
22 September 2011
Case Number
2109/11
Procedural Posture
Urgent Application / Application for Release of Restrained Assets for Legal Expenses
Outcome
Application dismissed with costs, including costs occasioned by the employment of two counsel.
Judges
J.E Smith
Legal Topics
Prevention of Organised Crime Act, Restraint Order, Legal Expenses, Creditor Interests
Criminal Law Civil Procedure Prevention of Organised Crime Act Restraint Order Legal Expenses Creditor Interests

Case Brief

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Parties

Louise Natalie Bowker

Applicant

Nardus Ferreira N.O

Respondent

The National Director of Public Prosecutions

Respondent

Procedural Posture

Urgent Application / Application for Release of Restrained Assets for Legal Expenses

Legal Issues

  1. 1 Whether the applicant is entitled to the release of restrained assets for legal expenses under section 26 of POCA.
  2. 2 Whether releasing such funds would prejudice the interests of the victim and creditors.
  3. 3 Whether the applicant's constitutional right to legal representation requires the release of restrained assets in these circumstances.

Ratio Decidendi

The court found that the funds sought by the applicant for legal expenses were almost entirely derived from assets misappropriated from the victim and his close corporation. The applicant admitted substantial indebtedness, and the restrained assets may not be sufficient to cover the outstanding debt. Releasing the funds would result in dissipation of assets to the prejudice of the victim. The applicant had not applied for legal aid, which she would likely qualify for, and instead sought to employ counsel of her own choice using disputed funds. The court held that the applicant is not entitled to use misappropriated assets for legal expenses where substantial prejudice to the victim would...

Court Disposition

Application dismissed with costs, including costs occasioned by the employment of two counsel.

Orders

  • The application is dismissed with costs, including the costs occasioned by the employment of two counsel.