Msimango and Others v National Director of Public Prosecutions and Another, Ex parte: In re National Director of Public Prosecutions v Msimango and Others (1880/2008, 1334/2008) [2011] ZAFSHC 17 (3 February 2011)

Msimango and Others v National Director of Public Prosecutions and Another, Ex parte: In re National Director of Public Prosecutions v Msimango and Others (1880/2008, 1334/2008) [2011] ZAFSHC 17 (3 February 2011)

The court found that the applicants had made full disclosure of their interests in the restrained property both in their founding papers and to the Asset Forfeiture Unit. The respondents failed to provide evidence that the amounts claimed for legal expenses were unreasonable or that the applicants could meet such expenses from unrestrained property. The court held that section 26(6) of POCA does not distinguish between legal expenses for restraint proceedings and related criminal proceedings, and the applicants' right to legal representation is constitutionally protected. The omission in the replying affidavit was not due to bad faith or culpable remissness, and the filing of...

Citation
[2011] ZAFSHC 17
Parties
Applicant: Sibusiso Msimango; Applicant: Andrew Sifelane Msimango; Applicant: McDonald Msimango; Applicant: Rise Msimango; Applicant: Sylvester Mahamo; Applicant: Sicelosenkosi Mthimkulu; Applicant: Meshack Sithole; Applicant: Mzala Sithole; Applicant: Adoons Knight; Applicant: Ndumiso Dube; Applicant: Lucky Sithole; Applicant: Charles Sithole; Applicant: Moroesi Patience Msimango; Applicant: Buyelwa Rose Somhlahlo; Applicant: Solomon Oswell Sithole; Respondent: National Director of Public Prosecutions; Respondent: Adv. J Lubbe SC NO (curator bonis)
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 February 2011
Case Number
1880/2008, 1334/2008
Procedural Posture
Urgent Application / Application for Release of Restrained Funds for Legal Expenses Under POCA
Outcome
Application granted. Leave to file supplementary replying affidavits and release of R1,445,382.64 for legal expenses ordered.
Judges
S. Ebrahim
Legal Topics
Prevention of Organised Crime Act, Restraint Order, Release of Funds, Legal Expenses, Full Disclosure, Curator Bonis
Criminal Law Civil Procedure Prevention of Organised Crime Act Restraint Order Release of Funds Legal Expenses Full Disclosure Curator Bonis

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Parties

Sibusiso Msimango

Applicant

Andrew Sifelane Msimango

Applicant

McDonald Msimango

Applicant

Rise Msimango

Applicant

Sylvester Mahamo

Applicant

Sicelosenkosi Mthimkulu

Applicant

Meshack Sithole

Applicant

Mzala Sithole

Applicant

Adoons Knight

Applicant

Ndumiso Dube

Applicant

Lucky Sithole

Applicant

Charles Sithole

Applicant

Moroesi Patience Msimango

Applicant

Buyelwa Rose Somhlahlo

Applicant

Solomon Oswell Sithole

Applicant

National Director of Public Prosecutions

Respondent

Adv. J Lubbe SC NO (curator bonis)

Respondent

Procedural Posture

Urgent Application / Application for Release of Restrained Funds for Legal Expenses Under POCA

Legal Issues

  1. 1 Whether the applicants are entitled to the release of restrained funds for legal expenses under section 26(6) of POCA.
  2. 2 Whether the applicants made full disclosure of their interest in the restrained property as required by POCA.
  3. 3 Whether the filing of supplementary replying affidavits should be permitted to cure alleged defects in the founding papers.

Ratio Decidendi

The court found that the applicants had made full disclosure of their interests in the restrained property both in their founding papers and to the Asset Forfeiture Unit. The respondents failed to provide evidence that the amounts claimed for legal expenses were unreasonable or that the applicants could meet such expenses from unrestrained property. The court held that section 26(6) of POCA does not distinguish between legal expenses for restraint proceedings and related criminal proceedings, and the applicants' right to legal representation is constitutionally protected. The omission in the replying affidavit was not due to bad faith or culpable remissness, and the filing of...

Court Disposition

Application granted. Leave to file supplementary replying affidavits and release of R1,445,382.64 for legal expenses ordered.

Orders

  • Leave is granted to the first, second, third and fourth applicants to each file a supplementary replying affidavit.
  • The said applicants must pay the costs of the application for such leave, on an unopposed basis.