Schoeman and Others v National Director of Public Prosecutions and Another (1890/2011, 5217/2010, 20738/2008) [2014] ZAWCHC 111; 2015 (1) SACR 451 (WCC) (23 July 2014)

Schoeman and Others v National Director of Public Prosecutions and Another (1890/2011, 5217/2010, 20738/2008) [2014] ZAWCHC 111; 2015 (1) SACR 451 (WCC) (23 July 2014)

The court found that the applicants failed to establish fraud or dishonesty sufficient to justify rescission of the restraint orders under common law or Rule 42. The alleged procedural irregularities and errors did not constitute grounds for rescission, as the applicants had acquiesced to the orders and failed to oppose or appeal them at the relevant stages. The jurisdictional requirements for rescission or variation under POCA were not met, as the applicants did not demonstrate undue hardship or deprivation of means to provide for reasonable living expenses. The constitutional challenge to POCA's threshold for restraint was not properly raised and could not be entertained. The...

Citation
[2014] ZAWCHC 111
Parties
Applicant: Marc Schoeman; Applicant: Marc Schoeman N.O. Trustee The 52 Trust; Applicant: Casper Johan Schoeman N.O. Trustee The 52 Trust; Applicant: Mark Dawson N.O. Trustee The 52 Trust; Applicant: S&D Consulting Somerset West CA (Pty) Ltd; Applicant: S&D Consulting CC; Applicant: Helderspruit Estates (Pty) Ltd; Respondent: National Director of Public Prosecutions; Respondent: Leon Knoetze N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 July 2014
Case Number
1890/2011, 5217/2010, 20738/2008
Procedural Posture
Urgent Application / Application for Rescission and Variation of Restraint Orders Under POCA
Outcome
Application dismissed with costs on an attorney and client scale, including costs of two counsel and all reserved costs.
Judges
Butler
Legal Topics
Prevention of Organised Crime Act, Restraint Order, Rescission of Judgment, Fraud on the Court, Variation of Order
Criminal Law Civil Procedure Prevention of Organised Crime Act Restraint Order Rescission of Judgment Fraud on the Court Variation of Order

Case Brief

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Parties

Marc Schoeman

Applicant

Marc Schoeman N.O. Trustee The 52 Trust

Applicant

Casper Johan Schoeman N.O. Trustee The 52 Trust

Applicant

Mark Dawson N.O. Trustee The 52 Trust

Applicant

S&D Consulting Somerset West CA (Pty) Ltd

Applicant

S&D Consulting CC

Applicant

Helderspruit Estates (Pty) Ltd

Applicant

National Director of Public Prosecutions

Respondent

Leon Knoetze N.O.

Respondent

Procedural Posture

Urgent Application / Application for Rescission and Variation of Restraint Orders Under POCA

Legal Issues

  1. 1 Whether the restraint orders granted under POCA should be rescinded or varied due to alleged fraud, procedural irregularities, or undue hardship.
  2. 2 Whether the applicants have established a basis for rescission under common law, Rule 42, or POCA.
  3. 3 Whether the applicants are entitled to variation of the restraint order for payment of legal expenses.

Ratio Decidendi

The court found that the applicants failed to establish fraud or dishonesty sufficient to justify rescission of the restraint orders under common law or Rule 42. The alleged procedural irregularities and errors did not constitute grounds for rescission, as the applicants had acquiesced to the orders and failed to oppose or appeal them at the relevant stages. The jurisdictional requirements for rescission or variation under POCA were not met, as the applicants did not demonstrate undue hardship or deprivation of means to provide for reasonable living expenses. The constitutional challenge to POCA's threshold for restraint was not properly raised and could not be entertained. The...

Court Disposition

Application dismissed with costs on an attorney and client scale, including costs of two counsel and all reserved costs.

Orders

  • The application is dismissed with costs on the scale as between attorney and client, such costs to be payable by the applicants jointly and severally, and to include the costs of two counsel, and are further to include all costs reserved by previous orders in this matter.