Gadiah and Another v National Director of Public Prosecutions (8752/22D) [2024] ZAKZDHC 65; 2025 (1) SACR 81 (KZD) (23 September 2024)

Gadiah and Another v National Director of Public Prosecutions (8752/22D) [2024] ZAKZDHC 65; 2025 (1) SACR 81 (KZD) (23 September 2024)

The applicants participated in an unlawful multiplication scheme operated by Manci, promising returns far exceeding lawful interest rates. Their invested funds were used as instrumentality of the offence. Although the applicants claim to be victims and deny knowledge of illegality, the extraordinary returns and their conduct raise a clear factual dispute regarding their knowledge. Motion proceedings are ill-suited to resolve such disputes, and neither party sought referral to oral evidence. On the common cause facts, the applicants have not established grounds for variation of the forfeiture order. Forfeiture is not contingent on criminal charges but on the property’s role in the offence....

Citation
[2024] ZAKZDHC 65
Parties
Applicant: Shaun Gadiah; Applicant: Remanah Gadiah; Applicant: Kevin Ramlall; Applicant: Sarika Ramnarain; Applicant: Evashni Singh; Respondent: National Director of Public Prosecutions
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
23 September 2024
Case Number
8752/22D
Procedural Posture
Variation Application / Application for Variation of Forfeiture Order Following Consolidated Motion Proceedings
Outcome
Applications for variation of the forfeiture order are dismissed. Condonation for late filing is granted. No order as to costs.
Judges
Davis AJ
Legal Topics
Forfeiture of Property, Ponzi Scheme, Multiplication Scheme, Prevention of Organised Crime Act, Consumer Protection Act, Arbitrary Deprivation of Property
Criminal Law Civil Procedure Forfeiture of Property Ponzi Scheme Multiplication Scheme Prevention of Organised Crime Act Consumer Protection Act Arbitrary Deprivation of Property

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Parties

Shaun Gadiah

Applicant

Remanah Gadiah

Applicant

Kevin Ramlall

Applicant

Sarika Ramnarain

Applicant

Evashni Singh

Applicant

National Director of Public Prosecutions

Respondent

Procedural Posture

Variation Application / Application for Variation of Forfeiture Order Following Consolidated Motion Proceedings

Legal Issues

  1. 1 Whether the applicants are entitled to have the amounts they paid into the unlawful multiplication scheme excluded from the forfeiture order.
  2. 2 Whether the applicants' participation in the scheme renders their invested funds liable to forfeiture as instrumentality of an offence.
  3. 3 Whether forfeiture in these circumstances is disproportionate or arbitrary under the Constitution.

Ratio Decidendi

The applicants participated in an unlawful multiplication scheme operated by Manci, promising returns far exceeding lawful interest rates. Their invested funds were used as instrumentality of the offence. Although the applicants claim to be victims and deny knowledge of illegality, the extraordinary returns and their conduct raise a clear factual dispute regarding their knowledge. Motion proceedings are ill-suited to resolve such disputes, and neither party sought referral to oral evidence. On the common cause facts, the applicants have not established grounds for variation of the forfeiture order. Forfeiture is not contingent on criminal charges but on the property’s role in the offence....

Court Disposition

Applications for variation of the forfeiture order are dismissed. Condonation for late filing is granted. No order as to costs.

Orders

  • Condonation for the late filing of the variation application is granted.
  • The application for variation of the forfeiture order granted on 17 March 2023 in all three applications is dismissed.