South African Reserve Bank v Torwood Properties (Pty) Ltd (626/94) [1996] ZASCA 104; 1997 (2) SA 169 (SCA); [1996] 4 All SA 494 (A); (25 September 1996)

South African Reserve Bank v Torwood Properties (Pty) Ltd (626/94) [1996] ZASCA 104; 1997 (2) SA 169 (SCA); [1996] 4 All SA 494 (A); (25 September 1996)

The Supreme Court of Appeal held that the attachment of Torwood's immovable property by the Reserve Bank was invalid. Torwood had acquired the property bona fide, for reasonable consideration, and in the ordinary course of business, long before any contravention of the Exchange Control Regulations by Hill. The Reserve Bank failed to consider the proviso to regulation 22A, which protects such property from attachment. Furthermore, Torwood was not shown to be a person who benefited or was enriched as a result of any contravention, as required by regulation 22C. The attachment was based on mere suspicion, not on established facts. There was no evidence to justify piercing Torwood's corporate...

Citation
[1996] ZASCA 104
Parties
Appellant: South African Reserve Bank; Respondent: Torwood Properties (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 September 1996
Case Number
626/94
Procedural Posture
Civil Appeal / Appeal From Declaratory and Review Applications; Leave to Appeal Granted
Outcome
Appeal dismissed with costs; attachment order declared null and void.
Judges
Harms, Hefer, Vivier, Marais, Plewman
Legal Topics
Exchange Control Regulations, Attachment of Property, Judicial Review, Forfeiture of Assets
Administrative Law Banking and Finance Exchange Control Regulations Attachment of Property Judicial Review Forfeiture of Assets

Case Brief

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Parties

South African Reserve Bank

Appellant

Torwood Properties (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Declaratory and Review Applications; Leave to Appeal Granted

Legal Issues

  1. 1 Whether the attachment of immovable property by the Reserve Bank under the Exchange Control Regulations was valid.
  2. 2 Whether Torwood Properties (Pty) Ltd acquired the property bona fide for reasonable consideration and in the ordinary course of business.
  3. 3 Whether Torwood was a person who benefited or was enriched as a result of contraventions of the Regulations.

Ratio Decidendi

The Supreme Court of Appeal held that the attachment of Torwood's immovable property by the Reserve Bank was invalid. Torwood had acquired the property bona fide, for reasonable consideration, and in the ordinary course of business, long before any contravention of the Exchange Control Regulations by Hill. The Reserve Bank failed to consider the proviso to regulation 22A, which protects such property from attachment. Furthermore, Torwood was not shown to be a person who benefited or was enriched as a result of any contravention, as required by regulation 22C. The attachment was based on mere suspicion, not on established facts. There was no evidence to justify piercing Torwood's corporate...

Court Disposition

Appeal dismissed with costs; attachment order declared null and void.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • It is declared that the attachment order dated 9 May 1989 made by the South African Reserve Bank of the immovable property of the applicant was null and void and of no legal effect.