Falk and Another v National Director of Public Prosecutions (CCT 95/10) [2011] ZACC 26; 2011 (11) BCLR 1134 (CC); 2012 (1) SACR 265 (CC) (16 August 2011)

Falk and Another v National Director of Public Prosecutions (CCT 95/10) [2011] ZACC 26; 2011 (11) BCLR 1134 (CC); 2012 (1) SACR 265 (CC) (16 August 2011)

The Constitutional Court held that the registration of the German restraint order was effected under section 24 of ICCMA and could only be set aside under the grounds listed in section 26(1) of ICCMA. The applicants failed to approach the High Court for rescission on the basis that the registration was not in accordance with ICCMA, and did not demonstrate that enforcement would be contrary to the interests of justice. The interdictory order was granted as an ancillary order under section 26(8) of POCA, following the registration of the foreign restraint order, and section 26(10)(b) of POCA does not apply to ancillary orders. The Court found that the interpretation of ICCMA and POCA must...

Citation
[2011] ZACC 26
Parties
Applicant: Alexander Gerhard Falk; Applicant: Falk Real Estate SA (Pty) Ltd; Respondent: National Director of Public Prosecutions
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
16 August 2011
Case Number
CCT 95/10
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Dismissal by the Supreme Court of Appeal
Outcome
Appeal dismissed. No costs order made in the Constitutional Court. Costs orders of the High Court and Supreme Court of Appeal remain undisturbed.
Judges
Van der Westhuizen, Ngcobo, Moseneke, Cameron, Froneman, Jafta, Khampepe, Mogoeng, Mthiyane, Nkabinde, Yacoob
Legal Topics
Restraint Orders, International Cooperation in Criminal Matters, Arbitrary Deprivation of Property, Confiscation Orders, Interdictory Relief, Bill of Rights Limitation
Criminal Law Civil Procedure Constitutional Law Restraint Orders International Cooperation in Criminal Matters Arbitrary Deprivation of Property Confiscation Orders Interdictory Relief +1 more

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Parties

Alexander Gerhard Falk

Applicant

Falk Real Estate SA (Pty) Ltd

Applicant

National Director of Public Prosecutions

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Dismissal by the Supreme Court of Appeal

Legal Issues

  1. 1 Whether the registration of the foreign restraint order should be set aside.
  2. 2 Whether the interdictory order granted by the High Court should be rescinded.
  3. 3 Which statute governs the registration and rescission: ICCMA or POCA.

Ratio Decidendi

The Constitutional Court held that the registration of the German restraint order was effected under section 24 of ICCMA and could only be set aside under the grounds listed in section 26(1) of ICCMA. The applicants failed to approach the High Court for rescission on the basis that the registration was not in accordance with ICCMA, and did not demonstrate that enforcement would be contrary to the interests of justice. The interdictory order was granted as an ancillary order under section 26(8) of POCA, following the registration of the foreign restraint order, and section 26(10)(b) of POCA does not apply to ancillary orders. The Court found that the interpretation of ICCMA and POCA must...

Court Disposition

Appeal dismissed. No costs order made in the Constitutional Court. Costs orders of the High Court and Supreme Court of Appeal remain undisturbed.

Orders

  • The application for the admission of further evidence on affidavit is granted.
  • The application for leave to appeal is granted.