National Director of Public Prosecutions v Naidoo & Others (419/09) [2010] ZASCA 143; 2011 (1) SACR 336 (SCA) ; [2011] 2 All SA 410 (SCA) (25 November 2010)

National Director of Public Prosecutions v Naidoo & Others (419/09) [2010] ZASCA 143; 2011 (1) SACR 336 (SCA) ; [2011] 2 All SA 410 (SCA) (25 November 2010)

Section 26(6) of the Prevention of Organised Crime Act does not permit a court to order payment of a defendant's legal expenses from property subject to a restraint order but held by another person or entity. The statutory language restricts such provision to property held by the person against whom the restraint order is made. The court below erred in reasoning that all restrained property, including that held by Mrs Naidoo, Two Line Trading, and Yamani Properties, could be treated as belonging to Mr Naidoo for the purposes of legal expenses. Ownership is not altered by the restraint order; only the net of realisable property is widened. Furthermore, the delay and failure to furnish...

Citation
[2010] ZASCA 143
Parties
Appellant: National Director of Public Prosecutions; Respondent: Rajan Naidoo; Respondent: Zakhele Sithole NO; Respondent: Dolly Naidoo; Respondent: Two Line Trading 87 (Pty) Ltd; Respondent: Yamani Properties 1015 (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 November 2010
Case Number
419/09
Procedural Posture
Leave to Appeal / Appeal From North Gauteng High Court, Pretoria; Application for Leave to Appeal Treated as Constructive Refusal Due to Delay in Reasons.
Outcome
Appeal upheld; order of the court below set aside and substituted with dismissal of the application for payment of legal expenses from property held by other respondents.
Judges
MPATI, CLOETE, PONNAN, BOSIELO, TSHIQI
Legal Topics
Prevention of Organised Crime Act, Restraint Order, Legal Expenses, Constructive Refusal of Leave, Judicial Delay
Criminal Law Civil Procedure Prevention of Organised Crime Act Restraint Order Legal Expenses Constructive Refusal of Leave Judicial Delay

Case Brief

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Parties

National Director of Public Prosecutions

Appellant

Rajan Naidoo

Respondent

Zakhele Sithole NO

Respondent

Dolly Naidoo

Respondent

Two Line Trading 87 (Pty) Ltd

Respondent

Yamani Properties 1015 (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Appeal From North Gauteng High Court, Pretoria; Application for Leave to Appeal Treated as Constructive Refusal Due to Delay in Reasons.

Legal Issues

  1. 1 Whether section 26(6) of the Prevention of Organised Crime Act permits payment of a defendant's legal expenses from property subject to a restraint order but held by another person or entity.
  2. 2 Whether the delay and failure to furnish reasons for judgment and to deal with the application for leave to appeal amounted to a constructive refusal of leave.

Ratio Decidendi

Section 26(6) of the Prevention of Organised Crime Act does not permit a court to order payment of a defendant's legal expenses from property subject to a restraint order but held by another person or entity. The statutory language restricts such provision to property held by the person against whom the restraint order is made. The court below erred in reasoning that all restrained property, including that held by Mrs Naidoo, Two Line Trading, and Yamani Properties, could be treated as belonging to Mr Naidoo for the purposes of legal expenses. Ownership is not altered by the restraint order; only the net of realisable property is widened. Furthermore, the delay and failure to furnish...

Court Disposition

Appeal upheld; order of the court below set aside and substituted with dismissal of the application for payment of legal expenses from property held by other respondents.

Orders

  • Leave to appeal is granted.
  • The appeal is upheld with costs, including the costs of two counsel.