Merensky and Othes v National Director of Public Prosecutions (500-507/2008) [2008] ZANWHC 31 (3 July 2008)

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO. 500–507/2008

In the Ex-parte application of:

THE

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT

In re:

DUAN MERENSKY 1ST

APPLICANT

SARAH WILHELMINA BENNET 2ND

APPLICANT

DANIEL JACOBUS SCHOEMAN 3RD

APPLICANT

and

THE

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

________________

JUDGMENT

MOGOENG JP.

INTRODUCTION

[1] A preservation order was previously granted prohibiting any person from dealing in any manner with the proceeds generated from unlawful

activities, in particular any illegal gambling, gaming or lottery operations at the business called or trading as Pirates located at the Taxi Rank, Rustenburg in the North West Province and to surrender such property to the control of a Curator Bonis in terms of the Draft Order.

[2] An application was subsequently launched for the reconsideration of the preservation order. It was argued before me. Having heard both counsel and considered the issues, I discharged the preservation order with costs. These are the reasons for the order I made.

[3] A number of grounds were set out for the reconsideration and the discharging of the aforementioned preservation order. Due to the approach that I have decided to adopt in this matter, it will be unnecessary to mention them.

[4] It is clear from the papers and it became even more so during address, that there is a matter pending in the Transvaal Provincial Division:

4.1 in which virtually all the parties in this matter are also involved;

4.2 the building in which the proceeds sought to be preserved are generated, is also the subject-matter of the dispute between the parties in the Transvaal Provincial Division;

4.3 the issues to be decided upon by the Transvaal Provincial Division in that matter are the nature of the Respondents’ business and the operation of the machines which are intrinsically related to the business premises and whether or not the Respondents’

activities and possession of the machines are unlawful.

[5] I therefore agree with Mr Jagga, for the Respondents, that a case relating to essentially the same premises, the same parties, the nature of the business, especially the alleged illegality of the business operations conducted at the aforementioned premises, is pending in the Transvaal Provincial Division. Both parties are aware of this pending case. It is, therefore, inappropriate for this Court to effectively make a ruling that pre-empts the decision of the Transvaal Provincial Division by finding that the proceeds of the same activities taking place in the business premises in question must be made the subject-matter of a preservation order because those activities are illegal.

[6] It is for these reasons that the preservation order was discharged with costs.

______

M.T.R.

MOGOENG

JUDGE

PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 21 MAY 2008

DATE OF JUDGMENT : 03 JULY 2008

COUNSEL FOR APPLICANTS :

ADV JAGGA

COUNSEL FOR RESPONDENT : ADV P. OOSTHUIZEN

ATTORNEYS FOR APPLICANTS : NIENABER & WISSING

ATTORNEYS FOR RESPONDENT :

STATE ATTORNEY