Mansoor and Another v National Director of Public Prosecutions and Another (3494/2010) [2011] ZAECPEHC 18 (12 May 2011)

Mansoor and Another v National Director of Public Prosecutions and Another (3494/2010) [2011] ZAECPEHC 18 (12 May 2011)

The court held that the discharge of the provisional restraint order means there is no longer any legal basis for the continued restraint of the applicants' property. The noting of an appeal does not suspend the discharge of the order unless the parties have specifically agreed to maintain the restraint pending appeal, which was not the case here. The respondents' refusal to release the property was based on a misconception of the law. The counter-application to maintain the restraint order pending appeal was a repetition of arguments already dismissed on the merits and was accordingly refused. The applicants are entitled to immediate release of their property.

Citation
[2011] ZAECPEHC 18
Parties
Applicant: Fahmida Mansoor; Applicant: Krith Singh; Respondent: National Director of Public Prosecutions; Respondent: Mr. Jacques Eybers N.O.; Respondent: The Master of the High Court / Eastern Cape High Court / Port Elizabeth
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
12 May 2011
Case Number
3494/2010
Procedural Posture
Urgent Application / Application for Immediate Release of Restrained Property Following Discharge of Provisional Restraint Order; Counter Application for Continuation of Restraint Pending Appeal
Outcome
Application granted; counter-application dismissed; property to be released to applicants; costs awarded against first respondent.
Judges
N G Beshe
Legal Topics
Prevention of Organised Crime Act, Restraint of Property, Interim Orders, Appeal Suspension, Curatorship
Criminal Law Civil Procedure Prevention of Organised Crime Act Restraint of Property Interim Orders Appeal Suspension Curatorship

Case Brief

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Parties

Fahmida Mansoor

Applicant

Krith Singh

Applicant

National Director of Public Prosecutions

Respondent

Mr. Jacques Eybers N.O.

Respondent

The Master of the High Court / Eastern Cape High Court / Port Elizabeth

Respondent

Procedural Posture

Urgent Application / Application for Immediate Release of Restrained Property Following Discharge of Provisional Restraint Order; Counter Application for Continuation of Restraint Pending Appeal

Legal Issues

  1. 1 Whether the discharge of the provisional restraint order entitles the applicants to immediate release of their property.
  2. 2 Whether the noting of an appeal suspends the discharge of the restraint order.
  3. 3 Whether the respondents are entitled to retain the property pending appeal.

Ratio Decidendi

The court held that the discharge of the provisional restraint order means there is no longer any legal basis for the continued restraint of the applicants' property. The noting of an appeal does not suspend the discharge of the order unless the parties have specifically agreed to maintain the restraint pending appeal, which was not the case here. The respondents' refusal to release the property was based on a misconception of the law. The counter-application to maintain the restraint order pending appeal was a repetition of arguments already dismissed on the merits and was accordingly refused. The applicants are entitled to immediate release of their property.

Court Disposition

Application granted; counter-application dismissed; property to be released to applicants; costs awarded against first respondent.

Orders

  • The second respondent is ordered to return the original letters of curatorship No MC 32/09 to the third respondent.
  • The second respondent is ordered to uplift the attachment in the first and second applicants' property and restore or return the property to the applicants.