National Director of Public Prosecutions v Kochnelbantjes & Partners (Pty) Ltd and Others (34767/08) [2008] ZAGPHC 303 (26 August 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Case No: 34767/08

Date: 26/08/2008

UNREPORTABLE

In the matter between:

THE NATIONAL DIRECTOR OF

PUBLIC PROSECUTIONS Applicant

And

KOCHNELBANTJES & PARTNERS (PTY) LTD 1st Respondent

ABRAHAMJOHANNESKOCH 2nd Respondent

HENDRIK WESSEL NEL 3rd Respondent

ALEXANDER PETRUS BANTJES 4th Respondent

JUDGMENT

HARTZENBERG. J

[1] This matter came before me in the urgent court during the course of last week as one of approximately seventy alleged urgent matters of which there was quite a sizable number that were fervently contested. I had the benefit of helpful heads of argument and argument. In order to do proper justice to the arguments will take some time. Due to the number of matters that had and have to be dealt with time was and is a very scarce commodity. As I have a definite view as to what the order is that has to be made and as I regard it as of more importance for the parties to have a result at this stage rather than a better motivated judgment at a later stage I shall concisely state my reasons and make the aforesaid order.

[2] On 23 July 2008 the Applicant obtained an asset preservation order ex parte against the respondents, in terms of the provisions of section 38 of the Prevention of Organised Crime Act, No.l21 of 1998 ('the Act). The order was granted by Van der Merwe, J. The order is aimed at preserving assets to the value of RI 944 840,60. The respondents have applied for a reconsideration of the order on 72 hours notice to the applicant as was provided for in paragraph 24 of the order.

[3] The first respondent is a limited liability company doing business as a debt collector and the other three respondents are directors of the first respondent. The respondents are registered as debt collectors with the board of Debt Collectors ("the Board"). There is at present a disciplinary investigation against the respondents regarding 292 Emolument Attachment Orders ("EAO's")

allegedly fraudulently obtained in the Magistrate's office, Johannesburg, before a panel appointed by the Board of Debt Collectors. The investigation against the second respondent was not proceeded with as he was no longer a director of the first respondent during the relevant period. The other respondents were found guilty. Evidence was led in respect of sentence and the question of sentence

has been postponed and was still pending. During that process, and on 23 July 2008 Van der Merwe, J was approached to make the aforesaid order. Thereafter the order was served upon the respondents and the whole question of sentence was after evidence had been led postponed until 20 January 2009.

[4] The applicant's application for the preservation order is based upon the findings of the tribunal. The attack against the order at this stage is against the material that was placed before Van der Merwe, 1. It is contended that the findings of the tribunal are not reliable evidential material. It is contended that as the findings of a criminal court are not admissible as evidence in a subsequent civil case that all such evidence should be disregarded.

[5] In my view and without deciding all the different applications for striking out and for rulings that evidence is inadmissible there is a very cogent reason why the order is to be set aside. The prosecutor attempted to quantify what in her opinion would be the amount of income obtained through the tainted EAO's. In doing so she relied on a spread sheet compiled by someone in ABSA Bank. When she called the witness the document was provisionally admitted. When the witness however appeared to be unable to indicate how the spread sheet was compiled and who compiled it, the spread sheet was withdrawn. It occurred before 16 July 2008. The affidavit that was placed before Van der Merwe, J and in which reference has been made to a spread sheet was made on 16 July 2008. In that affidavit the applicant relied on a second spread sheet. The first one was marked

AA and the second one BB. What is important is that in that affidavit it was not brought to the attention of the court that a previous spread sheet had to be withdrawn and what the reasons for that withdrawal had been. Moreover it was not explained to the court who drafted the second spread sheet and whether that person was qualified to give such opinion evidence. In this connection the position is that the calculation is based upon an interpretation of the income of the' first respondent and a formula of allocating a percentage thereof as derived from the tainted EAO's. It is not clear who invented the formula and whether the formula is reliable or not.

[6] The person who compiled the second spread sheet, one Esterhuysen, gave evidence before the tribunal on 23 July 2008, after the order had been made by Van der Merwe, J. He was still under cross-examination when the matter was postponed until 20 January 2009. The allegation on behalf of the respondents is that at that stage "het (hy) ook toegegee dat hy onder andere nie kon sê of die dokument se inhoud korrek en betroubaar is nie".

[7] There is authority, with which I agree, that when the State applies for an order in terms of the Act it has to put all relevant information before the court that could possibly influence it not to grant the order. In this particular case the quantification of the amount is the essential element of the evidence on which the court is to decide whether an order is to be made or not. If the court had been apprised that the evidence is totally speculative and that a previous attempt to quantify had to be withdrawn I do not for a moment belief that Van der Merwe, J would have made the order. In my view it has to be set aside.

[8] There is an argument on behalf of the applicant that the court ought not to reconsider the grant of the order as no notice had been given to the curator bonis appointed by the court and that he has a real interest in the existence of the order. I am not persuaded by the argument. It was the applicant who had the curator appointed. The applicant works closely together with the curator. The order has not been in existence for a long time. If there is a real chance of an injustice involving the curator the applicant would have informed the curator and it would have applied to partake in the proceedings. Consequently I do not regard the failure to notify the curator of the application for the re consideration

of the order as an obstacle to the setting aside thereof.

[9] The application for a re-consideration was served on 31 July 2008. The applicant persisted with its application. In the circumstances there is no reason why the applicant is not to be ordered to pay the respondent's costs. The respondents were at all relevant times

represented by two counsel. The nature of the case is such that they cannot be faulted for employing two counsel.

The following order is made:

1. The order granted ex parte by Van der Merwe, J on 23 July 2008 is set aside.

The applicant is ordered to pay the respondents' costs in respect of the re­ consideration of the order, which costs include the costs of two counsel.

WJ Harzenberg

Judge of the High Court