Seoposengwe and Others v National Director of Public Prosecutions and Another (19/2003) [2003] ZANWHC 24 (15 May 2003)

CASE NO : 19/2003

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

PALEDI SEOPOSENGWE 1ST APPLICANT

POPOTA SEOPOSENGWE 2ND APPLICANT

DANIEL NICOLAAS PRETORIUS 3RD APPLICANT

PRETBOU CONSTRUCTION CC (SIC) 4TH APPLICANT

SESARAH JOHANNA PRETORIUS 5TH APPLICANT

HED CONSTRUCTION CC (SIC) 6TH APPLICANT

WINNIE MALEBOGO SEOPOSENGWE 7TH APPLICANT

and

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 1ST RESPONDENT

HARLES ROB LOUW LOUIS

DE CHERMONT N O 2ND RESPONDENT

FOR THE APPLICANTS : ADV G SHAKOANE

FOR THE 1ST RESPONDENT : ADV I V MALEKA SC

FOR THE 2ND RESPONDENT : ADV L C J MAREE SC

DATE OF HEARING : 27 MARCH 2003 DATE OF JUDGMENT : 15 MAY 2003 J U D G M E N T LEEUW J: INTRODUCTION: The First Applicant brought an application, on an urgent basis, in terms of section 26 (6) of the Prevention of Organized Crime Act, Act No 101 of 1998 as amended (The Act). The following order inter alia was sought by him: (Reference is made to only those which are relevant to the dispute between the parties hereto.) “1. ............. 2. That the Applicant be granted access to an amount of R175 000.00 in respect of legal expenses in respect of both the application for a restraint order and criminal proceedings against the Applicant as well as for the Applicant’s living expenses; (sic) 3 That the First and/or Second Respondent be directed to release to the Applicant NISSAN SENTRA motor vehicle bearing registration numbers DXM 252 NW for use by him;

DATE OF HEARING : 27 MARCH 2003

DATE OF JUDGMENT : 15 MAY 2003

J U D G M E N T

LEEUW J:

INTRODUCTION:

The First Applicant brought an application, on an urgent basis, in terms of section 26 (6) of the Prevention of Organized Crime Act, Act No 101 of 1998 as amended (The Act). The following order inter alia was sought by him: (Reference is made to only those which are relevant to the dispute between the parties hereto.)

“1. .............

2. That the Applicant be granted access to an amount of R175 000.00 in respect of legal expenses in respect of both the application for a restraint order and criminal proceedings against the Applicant as well as for the Applicant’s living expenses; (sic)

3 That the First and/or Second Respondent be directed to release to the Applicant NISSAN SENTRA motor vehicle bearing registration numbers DXM 252 NW for use by him;

5. ................” An order in terms of section 26 of the Act was granted against the Applicants, which application (“Main Application”) was brought by the First Respondent to restrain realizable property held by them. The First Applicant’s application in the present matter was vigorously opposed by the Respondents. Several interlocutory

applications were exchanged between both parties including an application for an Amendment of the Notice of Motion wherein the Second to the Seventh Applicants were joined as parties. At the hearing of this application, both parties indicated that they did not wish to proceed with the interlocutory applications and only proceeded with the application on the Amended Notice of Motion albeit not brought in accordance with the Rules of this Honourable Court. In the Substituted or Amended Notice of Motion, the Applicants sought an order in the following terms: “1. That this application be heard as one of urgency and that all the rules and forms relating to the service of processes be dispensed with; The Second to Seventh Applicants be permitted to join as Applicants, respectively;

5. ................”

An order in terms of section 26 of the Act was granted against the Applicants, which application (“Main Application”) was brought by the First Respondent to restrain realizable property held by them.

The First Applicant’s application in the present matter was vigorously opposed by the Respondents. Several interlocutory

applications were exchanged between both parties including an application for an Amendment of the Notice of Motion wherein the Second to the Seventh Applicants were joined as parties. At the hearing of this application, both parties indicated that they did not wish to proceed with the interlocutory applications and only proceeded with the application on the Amended Notice of Motion albeit not brought in accordance with the Rules of this Honourable Court.

In the Substituted or Amended Notice of Motion, the Applicants sought an order in the following terms:

“1. That this application be heard as one of urgency and that all the rules and forms relating to the service of processes be dispensed with;

The Second to Seventh Applicants be permitted to join as Applicants, respectively;

That the order and/or judgment granted by the Honourable Mogoeng, J. P. on 5 December 2002 confirming the provisional restraint order in terms of Section 26 of the POCA against the Applicants and in favour of the First Respondent be rescinded and set aside. That the Second Respondent, the curator Bonis in respect of the property subject to the restraint order aforesaid be discharged from his duties forthwith. That the First Respondent’s claimed entitlement to the continued operation of the restraint order by Mogoeng J. P, even in the absence of criminal proceedings or (pending) charges be declared ultra vires the provisions of Section 25 and 26 of the POCA and therefore unconstitutional. That the provisions of Section 25(1) and (2) and 26(1) and (2) of the POCA be declared to be inconsistent with the Constitution and therefore unconstitutional and invalid.

That the order and/or judgment granted by the Honourable Mogoeng, J. P. on 5 December 2002 confirming the provisional restraint order in terms of Section 26 of the POCA against the Applicants and in favour of the First Respondent be rescinded and set aside.

That the Second Respondent, the curator Bonis in respect of the property subject to the restraint order aforesaid be discharged from his duties forthwith.

That the First Respondent’s claimed entitlement to the continued operation of the restraint order by Mogoeng J. P, even in the absence of criminal proceedings or (pending) charges be declared ultra vires the provisions of Section 25 and 26 of the POCA and therefore unconstitutional.

That the provisions of Section 25(1) and (2) and 26(1) and (2) of the POCA be declared to be inconsistent with the Constitution and therefore unconstitutional and invalid.

That the First to Seventh Applicants be allowed access to the property which was subject to the said restrained (sic) order and under the custody of the Second Respondent. Alternatively, in the event of the relief in paragraph 3, 4, 5, 6 and/or 7 not being granted, then and only in that event: 8.1 That the order and/or judgment granted by the Honourable Mogoeng, J.P. on 5 December 2002 confirming the provisional restraint order against the Applicants in favour of the First Respondent be rescinded and/or varied to include the following relief: 8.1.1 That the First Applicant be granted access to an amount of R175 000-00, in respect of legal expenses in respect of both the application for the restraint order and criminal proceedings against the First Applicant; as well as for the Applicant’s living expenses.

That the First to Seventh Applicants be allowed access to the property which was subject to the said restrained (sic) order and under the custody of the Second Respondent.

Alternatively, in the event of the relief in paragraph 3, 4, 5, 6 and/or 7 not being granted, then and only in that event:

8.1 That the order and/or judgment granted by the Honourable Mogoeng, J.P. on 5 December 2002 confirming the provisional restraint order against the Applicants in favour of the First Respondent be rescinded and/or varied to include the following relief:

8.1.1 That the First Applicant be granted access to an amount of R175 000-00, in respect of legal expenses in respect of both the application for the restraint order and criminal proceedings against the First Applicant; as well as for the Applicant’s living expenses.

8.1.2 That the First and/or Second Respondent be directed to release to the First Applicant the Nissan Sentra 140 GXI A/C motor vehicle, with the registration letters and numbers DXM 262 NW for use by him; Costs of the application in the event of same being opposed, and on the scale as between attorney and own client;” The “POCA” referred to in the Amended Notice of Motion represents the “The Act.” In his Founding and Supplementary Affidavits, the contents whereof have been confirmed in the Confirmatory Affidavits of the Second to the Seventh Applicants, the First Applicant alleges that: (a) Subsequent to the Restraint Order, which reduced his assets to the value of R689 912-03, and to which he has no access, he is experiencing financial problems in that he is unable to meet his financial living and legal expenses in respect of the Criminal Proceedings instituted at the instance of the First Respondent;

8.1.2 That the First and/or Second Respondent be directed to release to the First Applicant the Nissan Sentra 140 GXI A/C motor vehicle, with the registration letters and numbers DXM 262 NW for use by him;

Costs of the application in the event of same being opposed, and on the scale as between attorney and own client;”

The “POCA” referred to in the Amended Notice of Motion represents the “The Act.”

In his Founding and Supplementary Affidavits, the contents whereof have been confirmed in the Confirmatory Affidavits of the Second to the Seventh Applicants, the First Applicant alleges that:

(a) Subsequent to the Restraint Order, which reduced his assets to the value of R689 912-03, and to which he has no access, he is experiencing financial problems in that he is unable to meet his financial living and legal expenses in respect of the Criminal Proceedings instituted at the instance of the First Respondent;

(b) He has disclosed all his assets during the main application when the Restraint Order was granted against him, which amongst others include the Standard Bank Account belonging to the joint venture known as JUNCTION INVESTMENTS in which he has a 40% interest and which contains proceeds from work done by the company in the amount of R175 000-00; as well as a Nissan Sentra 140 GXI, which amount and assets are referred to in the Amended Notice of Motion; (c) His wife is currently pregnant and would therefore require the vehicle for transport and some cash for the purpose of financing her lying in expenses. The R175 000-00 is in respect of the legal expenses in both the main application for the Restraint Order and the pending Criminal Proceedings against him; (d) In his Supplementary Affidavit, he prays that the Restraint Order be rescinded in view of the fact that the Criminal Proceedings against him were withdrawn on the 29th September 2002 after several postponements of the case since 6 June 2002, at the instance of the First Respondent; That the criminal matter was withdrawn as a result of lack of sufficient evidence against him, the Second and Third Respondents and further that there are no Criminal Proceedings, nor charges pending against them at the instance of the First Respondent as required by Section 25 and 26 of the Act; and that (e) The continued operation of the Restraint Order depriving him and the other applicants access to their property in the absence of pending Criminal Proceedings against them, is arbitrary and unfair and consequently eroding on their constitutional and fundamental right to their property.

(b) He has disclosed all his assets during the main application when the Restraint Order was granted against him, which amongst others include the Standard Bank Account belonging to the joint venture known as JUNCTION INVESTMENTS in which he has a 40% interest and which contains proceeds from work done by the company in the amount of R175 000-00; as well as a Nissan Sentra 140 GXI, which amount and assets are referred to in the Amended Notice of Motion;

(c) His wife is currently pregnant and would therefore require the vehicle for transport and some cash for the purpose of financing her lying in expenses. The R175 000-00 is in respect of the legal expenses in both the main application for the Restraint Order and the pending Criminal Proceedings against him;

(d) In his Supplementary Affidavit, he prays that the Restraint Order be rescinded in view of the fact that the Criminal Proceedings against him were withdrawn on the 29th September 2002 after several postponements of the case since 6 June 2002, at the instance of the First Respondent; That the criminal matter was withdrawn as a result of lack of sufficient evidence against him, the Second and Third Respondents and further that there are no Criminal Proceedings, nor charges pending against them at the instance of the First Respondent as required by Section 25 and 26 of the Act; and that

(e) The continued operation of the Restraint Order depriving him and the other applicants access to their property in the absence of pending Criminal Proceedings against them, is arbitrary and unfair and consequently eroding on their constitutional and fundamental right to their property.

Counsel for the Applicants indicated that he was not proceeding with Prayer 6 of the Amended Notice of Motion (Declaring Sections 25(1) & (2) and 26(1) & (2) of the Act Unconstitutional). In response to the First Applicant’s Founding Affidavit, Mr Jason Basson, the State Advocate responsible for the prosecution of the case against the Applicants alleges that the Criminal Case was withdrawn provisionally against the First to the Third Applicants after the matter was postponed on six occasions and after the Presiding Magistrate had previously indicated that it would be a final postponement. He further stated that the criminal matter was delayed by the fact that further statements implicating the Applicants were still to be obtained from persons who would lead to the arrest and/or prosecution of other accused persons other than the Applicants. He reiterates the fact that there is sufficient evidence on which the First, Second and Third Applicants may be prosecuted but that in order to avoid a waste of scarce resources, it is preferable that the Applicants be arraigned jointly with the other accused persons, and that the investigation will be completed by June 2003.

Counsel for the Applicants indicated that he was not proceeding with Prayer 6 of the Amended Notice of Motion (Declaring Sections 25(1) & (2) and 26(1) & (2) of the Act Unconstitutional).

In response to the First Applicant’s Founding Affidavit, Mr Jason Basson, the State Advocate responsible for the prosecution of the case against the Applicants alleges that the Criminal Case was withdrawn provisionally against the First to the Third Applicants after the matter was postponed on six occasions and after the Presiding Magistrate had previously indicated that it would be a final postponement. He further stated that the criminal matter was delayed by the fact that further statements implicating the Applicants were still to be obtained from persons who would lead to the arrest and/or prosecution of other accused persons other than the Applicants. He reiterates the fact that there is sufficient evidence on which the First, Second and Third Applicants may be prosecuted but that in order to avoid a waste of scarce resources, it is preferable that the Applicants be arraigned jointly with the other accused persons, and that the investigation will be completed by June 2003.

Juliana G Rabaji, the Special Director of Public Prosecutions of the Republic of South Africa (Ms Rabaji), on behalf of First Respondent submits that the application is ill-conceived in that Section 26(6) of the Act provides that an application may be brought for reasonable living and legal expenses and not for the release of restrained property after the Restraint Order has already been made. She further alleges that the First Applicant has an amount of R168 000-00 of unrestrained income that is due and payable to him during April/May 2003. This information was furnished by the First Applicant in a sworn affidavit wherein he disclosed his financial interests; and that it can therefore not be true that the First Applicant cannot meet his living and legal expenses out of the unrestrained property. Section 25(1) provides for: “Cases in which restraint orders may be made - (1) A High Court may exercise the powers conferred on it by Section 26(1) - (a) When - (i) a prosecution for an offence has been instituted against the defendant concerned; (ii) either a confiscation order has been made against that defendant or it appears to the Court that there are reasonable grounds for believing that a confiscation order may be made against that defendant; and (iii) the proceedings against that defendant have not been concluded; or

Juliana G Rabaji, the Special Director of Public Prosecutions of the Republic of South Africa (Ms Rabaji), on behalf of First Respondent submits that the application is ill-conceived in that Section 26(6) of the Act provides that an application may be brought for reasonable living and legal expenses and not for the release of restrained property after the Restraint Order has already been made. She further alleges that the First Applicant has an amount of R168 000-00 of unrestrained income that is due and payable to him during April/May 2003. This information was furnished by the First Applicant in a sworn affidavit wherein he disclosed his financial interests; and that it can therefore not be true that the First Applicant cannot meet his living and legal expenses out of the unrestrained property.

Section 25(1) provides for:

“Cases in which restraint orders may be made - (1) A High Court may exercise the powers conferred on it by Section 26(1) -

(a) When -

(i) a prosecution for an offence has been instituted against the defendant concerned;

(ii) either a confiscation order has been made against that defendant or it appears to the Court that there are reasonable grounds for believing that a confiscation order may be made against that defendant; and

(iii) the proceedings against that defendant have not been concluded; or

(b) When - (i) that Court is satisfied that a person is to be charged with an offence; and (ii) it appears to the Court that there are reasonable grounds for believing that a confiscation order may be made against such person. (2) When the High Court has made a restraint order under subsection (1) (b), that Court shall rescind the restraint order if the relevant person is not charged within such period as the Court may consider reasonable.” (My emphasis). This Honourable Court, per Mogoeng J.P. in granting the Restraint Order, made a finding that the Applicant could well be charged with fraud and that the requirements of Section 25(1)(b)(i) were met, and also made a finding that in accordance with Section 25(1)(b)(ii), there were reasonable grounds for believing that a confiscation order may be granted against the Applicants if convicted on the allegations levelled against them. It was on the basis of Section 25(1)(b)(i) and (ii) that an order in terms of Section 26 was granted against the Respondents.

(b) When -

(i) that Court is satisfied that a person is to be charged with an offence; and

(ii) it appears to the Court that there are reasonable grounds for believing that a confiscation order may be made against such person.

(2) When the High Court has made a restraint order under subsection (1) (b), that Court shall rescind the restraint order if the relevant person is not charged within such period as the Court may consider reasonable.” (My emphasis).

This Honourable Court, per Mogoeng J.P. in granting the Restraint Order, made a finding that the Applicant could well be charged with fraud and that the requirements of Section 25(1)(b)(i) were met, and also made a finding that in accordance with Section 25(1)(b)(ii), there were reasonable grounds for believing that a confiscation order may be granted against the Applicants if convicted on the allegations levelled against them. It was on the basis of Section 25(1)(b)(i) and (ii) that an order in terms of Section 26 was granted against the Respondents.

Should the Restraining Order against the Applicants be rescinded? The First to the Third Respondents were charged in the Regional Court of Criminal Offences but the charges were withdrawn against them before a formal charge could be preferred against them; It is alleged on behalf of the First Respondent that sufficient evidence exists on which prosecutions may succeed against the First to Third Respondents. It is further alleged that the outstanding investigations in the matter have a bearing on the co-accused who they intend joining together with the First to Third Applicants. It is the submission of the Applicants that in view of the fact that there are no Criminal Proceedings nor charges pending against them as required by Section 25 and 26 of the Act, the Restraint Order must therefore be rescinded and set aside. Mogoeng J.P. in the Main Application, having referred extensively to the law and decided cases, came to the conclusion that prosecution had not yet been instituted against the Applicants despite the fact that they had appeared in court and no formal charges had been conveyed to them. The Court also made a finding that the proceedings against the Applicants have not been concluded as contemplated by Section 25(1)(a) (iii) because the circumstances set out in Section 17 of the Act did not prevail. I agree with the findings of Mogoeng J.P. in the Main Application.

Should the Restraining Order against the Applicants be rescinded?

The First to the Third Respondents were charged in the Regional Court of Criminal Offences but the charges were withdrawn against them before a formal charge could be preferred against them; It is alleged on behalf of the First Respondent that sufficient evidence exists on which prosecutions may succeed against the First to Third Respondents. It is further alleged that the outstanding investigations in the matter have a bearing on the co-accused who they intend joining together with the First to Third Applicants. It is the submission of the Applicants that in view of the fact that there are no Criminal Proceedings nor charges pending against them as required by Section 25 and 26 of the Act, the Restraint Order must therefore be rescinded and set aside. Mogoeng J.P. in the Main Application, having referred extensively to the law and decided cases, came to the conclusion that prosecution had not yet been instituted against the Applicants despite the fact that they had appeared in court and no formal charges had been conveyed to them. The Court also made a finding that the proceedings against the Applicants have not been concluded as contemplated by Section 25(1)(a) (iii) because the circumstances set out in Section 17 of the Act did not prevail. I agree with the findings of Mogoeng J.P. in the Main Application.

A Restraint Order granted in terms of Section 25(1)(a) and (b) of the Act may be rescinded only “if the relevant person is not charged within such period as the Court may consider reasonable” see Section 25(2) above. The Applicants’ application for the rescission of Restraint Order is not in terms of Section 25(2). The Restraint Order therefore remains in force since there was no appeal against the findings and judgment granted by Mogoeng J. P. It is actually submitted by Counsel on behalf of the Applicants that a case has been made out for the rescission and setting aside of the Restraint Order in terms of Section 26(10) and 28 (1),(2) and (3) of the Act. Section 26(10) of the Act provides that: “A High Court which made a restraint order (a) may on application by a person affected by that order vary or rescind the restraint order or an order authorizing the seizure of the property concerned or other ancillary order if it is satisfied - (i) that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant; and

A Restraint Order granted in terms of Section 25(1)(a) and (b) of the Act may be rescinded only “if the relevant person is not charged within such period as the Court may consider reasonable” see Section 25(2) above. The Applicants’ application for the rescission of Restraint Order is not in terms of Section 25(2). The Restraint Order therefore remains in force since there was no appeal against the findings and judgment granted by Mogoeng J. P.

It is actually submitted by Counsel on behalf of the Applicants that a case has been made out for the rescission and setting aside of the Restraint Order in terms of Section 26(10) and 28 (1),(2) and (3) of the Act.

Section 26(10) of the Act provides that:

“A High Court which made a restraint order

(a) may on application by a person affected by that order vary or rescind the restraint order or an order authorizing the seizure of the property concerned or other ancillary order if it is satisfied -

(i) that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant; and

(ii) that the hardship that the applicant will suffer as a result of the order outweighs the risk that the property concerned may be destroyed, lost, damaged, concealed or transferred; and (b) shall rescind the restraint order when the proceedings against the defendant concerned are concluded.” With regard to 26(10)(a)(i):

(ii) that the hardship that the applicant will suffer as a result of the order outweighs the risk that the property concerned may be destroyed, lost, damaged, concealed or transferred; and

(b) shall rescind the restraint order when the proceedings against the defendant concerned are concluded.”

With regard to 26(10)(a)(i):

The Applicants’, in particular the First Applicant’s reasons advanced for the release of an amount of R175 000-00, in his Founding Affidavit, is that his wife is currently pregnant and is about to go for confinement and would therefore require money for her lying-in expenses. He has attached a list of expenses which represent his monthly expenses to a total of R13 143-29 (Annexure

“SP4") and Legal Fees due and payable to his attorneys to a total of R110 276-79. It is not clear from his affidavit as to whether his wife is employed or whether he has any other source of income. The list of living expenses (“SP4") though not dated indicates that it was faxed on the 19th November 2002; and the Annexures on the Legal expenses, (“SP5") dated 24th October 2002 and (“SP6") dated 16th November 2002, were available on the date of hearing of the Main Application on the 14th November 2002 before judgment, which was handed down on the 5th December 2002. The First Applicant did not request the Court to invoke the provisions of Section 26(6) at that stage despite the fact that he purported not to be in a position to afford payment of the reasonable living and legal expenses from the unrestrained property. I agree with Mr Maleka on behalf of the First Respondent, that the provisions of Section 26(6) ought to have been invoked when the Restraint Order was made. The First Respondent makes reference to an amount of R168 000-00 which is due and payable to the First Applicant during April/May 2003, which fact is not disputed by the Applicants. I agree with the submission on behalf of the First Respondent that a motor vehicle which is subject to a confiscation order, cannot be classified under living expenses. The onus is on the Applicants to show to the Court that the property subject to the Restraint Order, if released to him, may not be damaged, destroyed or lost or alienated in anyway, which risk is not outweighed by the Restraint Order. Compare The National Director of Public Prosecutions v Phillips and Others 2001 (4) SA 849 (WLD). The First Applicant has tabulated a list of expenses per annexure attached to his Founding Affidavit without indicating to this Court how he is deprived by the Restraint Order from providing for his reasonable living expenses, which has also resulted in undue hardship for him and his family. In the absence of evidence indicating the income and detailed expenses of the First Applicant, and proof on a balance of probabilities that undue hardship suffered by him outweighs the risk that the property confiscated may be damaged or alienated in any way, I find it difficult to grant the order for the varying or setting aside of the restraint order. Furthermore, reliance on Section 26(10)(a) by the Applicants only pertains to the living expenses of the First Applicant, nothing is being said about the living expenses of the other Applicants. Of the R175 000-00

requested, First Applicant only has a 40% interest in “the joint venture known as JUNCTION INVESTMENTS.” Legal expenses are not covered under the provisions of Section 26(10)(a)(i) and (ii) for the purpose of variation or rescission of the Restraint Order. With regard to Section 26(10)(b): it is submitted on behalf of Applicants that the proceedings against them have been concluded. Section 17 of Act provides that: “Conclusion of proceedings against defendant. - For the purpose of this Chapter, the proceedings contemplated in terms of this Chapter against a defendant shall be concluded when - (a) the defendant is acquitted or found not guilty of an offence; (b) subject to section 18(2), the court convicting the defendant of an offence, sentences the defendant without making a confiscation order against him or her;

The Applicants’, in particular the First Applicant’s reasons advanced for the release of an amount of R175 000-00, in his Founding Affidavit, is that his wife is currently pregnant and is about to go for confinement and would therefore require money for her lying-in expenses. He has attached a list of expenses which represent his monthly expenses to a total of R13 143-29 (Annexure

“SP4") and Legal Fees due and payable to his attorneys to a total of R110 276-79. It is not clear from his affidavit as to whether his wife is employed or whether he has any other source of income. The list of living expenses (“SP4") though not dated indicates that it was faxed on the 19th November 2002; and the Annexures on the Legal expenses, (“SP5") dated 24th October 2002 and (“SP6") dated 16th November 2002, were available on the date of hearing of the Main Application on the 14th November 2002 before judgment, which was handed down on the 5th December 2002. The First Applicant did not request the Court to invoke the provisions of Section 26(6) at that stage despite the fact that he purported not to be in a position to afford payment of the reasonable living and legal expenses from the unrestrained property. I agree with Mr Maleka on behalf of the First Respondent, that the provisions of Section 26(6) ought to have been invoked when the Restraint Order was made. The First Respondent makes reference to an amount of R168 000-00 which is due and payable to the First Applicant during April/May 2003, which fact is not disputed by the Applicants. I agree with the submission on behalf of the First Respondent that a motor vehicle which is subject to a confiscation order, cannot be classified under living expenses. The onus is on the Applicants to show to the Court that the property subject to the Restraint Order, if released to him, may not be damaged, destroyed or lost or alienated in anyway, which risk is not outweighed by the Restraint Order. Compare The National Director of Public Prosecutions v Phillips and Others 2001 (4) SA 849 (WLD). The First Applicant has tabulated a list of expenses per annexure attached to his Founding Affidavit without indicating to this Court how he is deprived by the Restraint Order from providing for his reasonable living expenses, which has also resulted in undue hardship for him and his family. In the absence of evidence indicating the income and detailed expenses of the First Applicant, and proof on a balance of probabilities that undue hardship suffered by him outweighs the risk that the property confiscated may be damaged or alienated in any way, I find it difficult to grant the order for the varying or setting aside of the restraint order. Furthermore, reliance on Section 26(10)(a) by the Applicants only pertains to the living expenses of the First Applicant, nothing is being said about the living expenses of the other Applicants. Of the R175 000-00

requested, First Applicant only has a 40% interest in “the joint venture known as JUNCTION INVESTMENTS.” Legal expenses are not covered under the provisions of Section 26(10)(a)(i) and (ii) for the purpose of variation or rescission of the Restraint Order.

With regard to Section 26(10)(b): it is submitted on behalf of Applicants that the proceedings against them have been concluded.

Section 17 of Act provides that:

“Conclusion of proceedings against defendant. - For the purpose of this Chapter, the proceedings contemplated in terms of this Chapter against a defendant shall be concluded when -

(a) the defendant is acquitted or found not guilty of an offence;

(b) subject to section 18(2), the court convicting the defendant of an offence, sentences the defendant without making a confiscation order against him or her;

(c) the conviction in respect of an offence is set aside on review or appeal; or (d) the defendant satisfies the confiscation order made against him or her.” It is trite law in criminal proceedings that where a charge is withdrawn against an accused person before he can be made to plead to the charge, he or she shall not be entitled to a verdict of acquittal in respect of that charge. See Section 6 (a) of the Criminal Procedure Act, 1977 (Act 51 of 1977). The First Respondent, through Mr Basson, has indicated that the First to Third Applicants will be recharged and arraigned with the charges withdrawn. The proceedings are therefore not concluded against them. Counsel for Applicants referred to the ordinary dictionary interpretation of the word “concluded.” I am not persuaded by such argument which overlooks the definitions and interpretation given to the word “conclusion” as defined in the Criminal Procedure Act, and Section 17 of the Act. This aspect was also fully dealt with by Mogoeng J. P. when he granted the Restraint Order against the Applicants. In view of the fact that the proceedings have not been concluded, the Court cannot rescind the Restraint Order in terms of Section 26(10)(b). It is further submitted on behalf of the Applicants that a case has been made out for the rescission and setting aside of the Restraint Order in terms of section 28(1), (2) and (3) of the Act.

(c) the conviction in respect of an offence is set aside on review or appeal; or

(d) the defendant satisfies the confiscation order made against him or her.”

It is trite law in criminal proceedings that where a charge is withdrawn against an accused person before he can be made to plead to the charge, he or she shall not be entitled to a verdict of acquittal in respect of that charge. See Section 6 (a) of the Criminal Procedure Act, 1977 (Act 51 of 1977). The First Respondent, through Mr Basson, has indicated that the First to Third Applicants will be recharged and arraigned with the charges withdrawn. The proceedings are therefore not concluded against them. Counsel for Applicants referred to the ordinary dictionary interpretation of the word “concluded.” I am not persuaded by such argument which overlooks the definitions and interpretation given to the word “conclusion” as defined in the Criminal Procedure Act, and Section 17 of the Act. This aspect was also fully dealt with by Mogoeng J. P. when he granted the Restraint Order against the Applicants. In view of the fact that the proceedings have not been concluded, the Court cannot rescind the Restraint Order in terms of Section 26(10)(b).

It is further submitted on behalf of the Applicants that a case has been made out for the rescission and setting aside of the Restraint Order in terms of section 28(1), (2) and (3) of the Act.

This section deals with the appointment of a curator bonis in respect of property subject to the restraint order and the powers granted to the curator bonis in terms of the Court order . Section 28(2) and (3) provide for the variation or rescission of an order granted in terms of Section 28(1)(b) which provides that: “Where a High Court has made a restraint order, that Court may at any time - (a) (b) Order the person against whom the restraint order has been made to surrender forthwith, or within such period as that Court may determine, any property in respect of which a curator bonis has been appointed under paragraph (a), into the custody of the curator bonis.” The Applicants rely on the provisions of Section 28(1), (2) and (3) for the purpose of rescission or variation of the restraint order. There is nothing in the Amended Notice of Motion or in the Founding and Supplementary Affidavits of the First Applicant that clearly suggest that.

This section deals with the appointment of a curator bonis in respect of property subject to the restraint order and the powers granted to the curator bonis in terms of the Court order . Section 28(2) and (3) provide for the variation or rescission of an order granted in terms of Section 28(1)(b) which provides that:

“Where a High Court has made a restraint order, that Court may at any time -

(a)

(b) Order the person against whom the restraint order has been made to surrender forthwith, or within such period as that Court may determine, any property in respect of which a curator bonis has been appointed under paragraph (a), into the custody of the curator bonis.”

The Applicants rely on the provisions of Section 28(1), (2) and (3) for the purpose of rescission or variation of the restraint order. There is nothing in the Amended Notice of Motion or in the Founding and Supplementary Affidavits of the First Applicant that clearly suggest that.

With regard to the Second Respondent, the Applicants seek an order in terms whereof he, the Second Respondent, is discharged from his duties as curator bonis in respect of the property subject to the Restraint Order. The success of this prayer is dependant on whether the Applicants succeed in respect of the other orders sought against the First Respondent. I have already alluded to the fact that I am not persuaded by the submissions to the effect that the Restraint Order should be rescinded or varied to allow the First Applicant access to the R175 000-00 as living and legal expenses and the Nissan Sentra motor vehicle for use by the First Applicant. The Applicants’ and Respondents’ Counsel indicated at the commencement of the trial that they do not wish to proceed with the interlocutory applications brought by and against the parties hereto. I will therefore make no order in respect of such applications. But the First Respondent has indicated that an order should be made against the Applicants for the costs occasioned by the Amendment to the Notice of Motion and subsequent pleadings. I agree with this submission. It is proper and in accordance with Rule 28(9) of the Uniform Rules of Court. No argument was presented on behalf of the Applicants on the issue of urgency in this matter. I accordingly make the following order: “(a) Second to Seventh Applicants are hereby joined as parties to the proceedings;

With regard to the Second Respondent, the Applicants seek an order in terms whereof he, the Second Respondent, is discharged from his duties as curator bonis in respect of the property subject to the Restraint Order. The success of this prayer is dependant on whether the Applicants succeed in respect of the other orders sought against the First Respondent. I have already alluded to the fact that I am not persuaded by the submissions to the effect that the Restraint Order should be rescinded or varied to allow the First Applicant access to the R175 000-00 as living and legal expenses and the Nissan Sentra motor vehicle for use by the First Applicant.

The Applicants’ and Respondents’ Counsel indicated at the commencement of the trial that they do not wish to proceed with the interlocutory applications brought by and against the parties hereto. I will therefore make no order in respect of such applications. But the First Respondent has indicated that an order should be made against the Applicants for the costs occasioned by the Amendment to the Notice of Motion and subsequent pleadings. I agree with this submission. It is proper and in accordance with Rule 28(9) of the Uniform Rules of Court. No argument was presented on behalf of the Applicants on the issue of urgency in this matter.

I accordingly make the following order:

“(a) Second to Seventh Applicants are hereby joined as parties to the proceedings;

(b) Applicants’ Notice of Motion is amended in terms of the Amended Notice of Motion and subsequent pleadings thereto; (c) Applicants are ordered to pay costs occasioned by the Amendment including the costs of two counsel, jointly and severally, the one paying the other to be absolved. (d) The Application in respect of Prayers in paragraphs 1, 3, 4, 5, 7 and 8 of the Amended Notice of Motion is dismissed. (e) The Applicants are ordered to pay the costs of this Application jointly and severally, the one paying the other to be absolved. Such costs to include costs of two Counsel.” M M LEEUW JUDGE OF THE HIGH COURT Applicants Attorneys: Gura Tlaletsi Inc Attorneys 1st Respondent’s Attorneys: State Attorneys 2nd Respondent’s Attorneys: Smit Stanton Inc Attorneys

(b) Applicants’ Notice of Motion is amended in terms of the Amended Notice of Motion and subsequent pleadings thereto;

(c) Applicants are ordered to pay costs occasioned by the Amendment including the costs of two counsel, jointly and severally, the one paying the other to be absolved.

(d) The Application in respect of Prayers in paragraphs 1, 3, 4, 5, 7 and 8 of the Amended Notice of Motion is dismissed.

(e) The Applicants are ordered to pay the costs of this Application jointly and severally, the one paying the other to be absolved. Such costs to include costs of two Counsel.”

M M LEEUW

JUDGE OF THE HIGH COURT

Applicants Attorneys: Gura Tlaletsi Inc Attorneys

1st Respondent’s Attorneys: State Attorneys

2nd Respondent’s Attorneys: Smit Stanton Inc Attorneys