Falk and Another v National Director of Public Prosecutions (8420/03) [2009] ZAWCHC 208 (10 July 2009)

Falk and Another v National Director of Public Prosecutions (8420/03) [2009] ZAWCHC 208 (10 July 2009)

The court held that the criminal proceedings in Germany against Falk were not concluded, as both Falk and the Hamburg Prosecutors had lodged appeals to the Federal Court, which suspended the operation of the trial court's decisions. Section 24A of POCA requires that restraint orders and ancillary interdicts remain in force pending the outcome of any appeal against the decision relating to a confiscation order. The applicants' argument that the proceedings were concluded and that the restraint should be lifted was rejected. The court found that there was a real risk that Falk and FRSA would dissipate or conceal assets if the restraint was lifted, and that the interests of justice required...

Citation
[2009] ZAWCHC 208
Parties
Applicant: Alexander Gerhard Falk; Applicant: Falk Real Estate SA (Pty) Ltd; Respondent: National Director of Public Prosecutions
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 July 2009
Case Number
8420/03
Procedural Posture
Review Application / Final Judgment on Application to Set Aside Registration of Foreign Restraint Order and Ancillary Interdicts
Outcome
Application dismissed. Costs awarded against the applicants, jointly and severally.
Judges
Louw
Legal Topics
International Cooperation in Criminal Matters Act, Prevention of Organised Crime Act, Foreign Restraint Orders, Asset Forfeiture, Interdictory Relief, Mutual Legal Assistance
Criminal Law Civil Procedure Banking and Finance International Cooperation in Criminal Matters Act Prevention of Organised Crime Act Foreign Restraint Orders Asset Forfeiture 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

Review Application / Final Judgment on Application to Set Aside Registration of Foreign Restraint Order and Ancillary Interdicts

Legal Issues

  1. 1 Whether the registration of the second Hamburg restraint order in South Africa should be set aside under section 26 of the ICCMA.
  2. 2 Whether the ancillary interdicts granted on 16 August 2005 should be rescinded under section 26(10)(b) of POCA.
  3. 3 Whether continued enforcement of the restraint order is contrary to the interests of justice under section 26(1)(d) of the ICCMA.

Ratio Decidendi

The court held that the criminal proceedings in Germany against Falk were not concluded, as both Falk and the Hamburg Prosecutors had lodged appeals to the Federal Court, which suspended the operation of the trial court's decisions. Section 24A of POCA requires that restraint orders and ancillary interdicts remain in force pending the outcome of any appeal against the decision relating to a confiscation order. The applicants' argument that the proceedings were concluded and that the restraint should be lifted was rejected. The court found that there was a real risk that Falk and FRSA would dissipate or conceal assets if the restraint was lifted, and that the interests of justice required...

Court Disposition

Application dismissed. Costs awarded against the applicants, jointly and severally.

Orders

  • The application is dismissed.
  • The applicants Falk and FRSA are ordered to pay the costs jointly and severally, the one paying the other to be absolved.