Falk and Another v National Director of Public Prosecutions (689/09) [2010] ZASCA 117; 2011 (1) SACR 105 (SCA) ; [2011] 1 All SA 354 (SCA) (23 September 2010)

Falk and Another v National Director of Public Prosecutions (689/09) [2010] ZASCA 117; 2011 (1) SACR 105 (SCA) ; [2011] 1 All SA 354 (SCA) (23 September 2010)

The Supreme Court of Appeal held that the registration of a foreign restraint order under the ICCMA does not convert it into a South African restraint order subject to all provisions of POCA. The grounds for setting aside such registration are exhaustively set out in section 26 of the ICCMA. The refusal of a confiscation order by the foreign trial court does not automatically require the setting aside of the registration, especially where appeals are pending in the foreign jurisdiction. The interests of justice do not demand discharge of the restraint order solely on the basis of the trial court's refusal. Ancillary interdicts against assets held by the second appellant were competent...

Citation
[2010] ZASCA 117
Parties
Appellant: Alexander Gerhard Falk; Appellant: Falk Real Estate SA (Pty) Ltd; Respondent: National Director of Public Prosecutions
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 September 2010
Case Number
689/09
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court, Dismissal of Application to Set Aside Registration of Foreign Restraint Order and Related Interdicts
Outcome
Appeal dismissed with costs, including costs of two counsel and costs occasioned by applications to adduce further evidence.
Judges
MPATI, CLOETE, CACHALIA, BOSIELO, TSHIQI
Legal Topics
International Cooperation in Criminal Matters Act, Prevention of Organised Crime Act, Foreign Restraint Order, Confiscation Order, Interdict, Interests of Justice
Criminal Law Civil Procedure International Cooperation in Criminal Matters Act Prevention of Organised Crime Act Foreign Restraint Order Confiscation Order Interdict Interests of Justice

Case Brief

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Parties

Alexander Gerhard Falk

Appellant

Falk Real Estate SA (Pty) Ltd

Appellant

National Director of Public Prosecutions

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court, Dismissal of Application to Set Aside Registration of Foreign Restraint Order and Related Interdicts

Legal Issues

  1. 1 Whether the registration of a foreign restraint order under the ICCMA should be set aside following the refusal of a confiscation order by the foreign trial court.
  2. 2 Whether ancillary interdicts granted under POCA against assets held by the second appellant were competent.
  3. 3 Whether the continued registration of the foreign restraint order is contrary to the interests of justice under South African law.

Ratio Decidendi

The Supreme Court of Appeal held that the registration of a foreign restraint order under the ICCMA does not convert it into a South African restraint order subject to all provisions of POCA. The grounds for setting aside such registration are exhaustively set out in section 26 of the ICCMA. The refusal of a confiscation order by the foreign trial court does not automatically require the setting aside of the registration, especially where appeals are pending in the foreign jurisdiction. The interests of justice do not demand discharge of the restraint order solely on the basis of the trial court's refusal. Ancillary interdicts against assets held by the second appellant were competent...

Court Disposition

Appeal dismissed with costs, including costs of two counsel and costs occasioned by applications to adduce further evidence.

Orders

  • The appeal is dismissed with costs.
  • The costs shall include the costs of two counsel and the costs occasioned by the applications by both sides to place further evidence before this court.