National Director of Public Prosecutions v Schmitt and Others (257/03, ECJ135) [2006] ZAECHC 29 (8 June 2006)

National Director of Public Prosecutions v Schmitt and Others (257/03, ECJ135) [2006] ZAECHC 29 (8 June 2006)

The court found that there are grounds upon which another court might reasonably reach a different conclusion regarding the confiscation order, particularly in relation to the ownership of substantial assets by the applicants and respondents and the relevance of mitigating factors from the criminal proceedings. The court was not persuaded that reliance on the cited cases was entirely misplaced but acknowledged that the distinction between preservation and confiscation orders could be material. Accordingly, leave to appeal was granted to the applicants to the full bench of the division.

Citation
[2006] ZAECHC 29
Parties
Applicant: National Director of Public Prosecutions; Defendant: Cornelius Petrus Schmitt; Defendant: Johannes Frederick Schmitt; Respondent: Jacoba Alida Schmitt; Respondent: Odeen Gerber; Respondent: Johannes Frederick Schmitt, NO; Respondent: Cornelius Petrus Schmitt, NO; Respondent: Erna Schmitt; Respondent: Smart Payments Services (Pty) Ltd; Respondent: Werner Gerber
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
8 June 2006
Case Number
257/03
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Full Bench
Outcome
Leave to appeal granted to the applicants to the full bench of this division; costs to be costs on appeal.
Judges
Dambuza
Legal Topics
Confiscation Order, Prevention of Organised Crime Act, Leave to Appeal, Mitigating Factors
Criminal Law Civil Procedure Confiscation Order Prevention of Organised Crime Act Leave to Appeal Mitigating Factors

Case Brief

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Parties

National Director of Public Prosecutions

Applicant

Cornelius Petrus Schmitt

Defendant

Johannes Frederick Schmitt

Defendant

Jacoba Alida Schmitt

Respondent

Odeen Gerber

Respondent

Johannes Frederick Schmitt, NO

Respondent

Cornelius Petrus Schmitt, NO

Respondent

Erna Schmitt

Respondent

Smart Payments Services (Pty) Ltd

Respondent

Werner Gerber

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Full Bench

Legal Issues

  1. 1 Whether another court might reasonably come to a different conclusion regarding the confiscation order.
  2. 2 Whether the loss of benefit derived from unlawful acts should inure to the benefit of the defendants in the application for a confiscation order.
  3. 3 Whether mitigating factors identified in the criminal appeal are relevant to the confiscation order application.

Ratio Decidendi

The court found that there are grounds upon which another court might reasonably reach a different conclusion regarding the confiscation order, particularly in relation to the ownership of substantial assets by the applicants and respondents and the relevance of mitigating factors from the criminal proceedings. The court was not persuaded that reliance on the cited cases was entirely misplaced but acknowledged that the distinction between preservation and confiscation orders could be material. Accordingly, leave to appeal was granted to the applicants to the full bench of the division.

Court Disposition

Leave to appeal granted to the applicants to the full bench of this division; costs to be costs on appeal.

Orders

  • Leave is granted to the applicants to appeal to the full bench of this division.
  • Costs shall be costs on appeal.