Van Heerden and Another v National Director of Public Prosecutions and Another (16910/11) [2015] ZAWCHC 96 (22 June 2015)

Van Heerden and Another v National Director of Public Prosecutions and Another (16910/11) [2015] ZAWCHC 96 (22 June 2015)

The court found that the applicants failed to make full disclosure of their restrained and unrestrained assets, as required by s 26(6) of POCA. There were significant gaps and inconsistencies in their evidence, including lack of updated financial records for their businesses, unexplained proceeds from property sales, and absence of relevant bank statements. The applicants also failed to comply with the restraint order's requirements for monthly statements. As a result, the court did not have jurisdiction to grant the relief sought. The issue of whether Mr van Heerden's pension benefit was correctly included in the restraint order under s 37A(1) of the Pension Funds Act was not decided, as...

Citation
[2015] ZAWCHC 96
Parties
Applicant: Pienaar Van Heerden; Applicant: Anthea Lynette Van Heerden; Respondent: National Director of Public Prosecutions; Respondent: Andre Charl Van Heerden N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 June 2015
Case Number
16910/11
Procedural Posture
Variation Application / Application for Variation of Restraint Order Under POCA
Outcome
Application dismissed for lack of jurisdiction due to insufficient disclosure.
Judges
Rogers
Legal Topics
Restraint Order, Prevention of Organised Crime Act, Release of Restrained Assets, Pension Funds Act, Full Disclosure Requirement
Criminal Law Civil Procedure Restraint Order Prevention of Organised Crime Act Release of Restrained Assets Pension Funds Act Full Disclosure Requirement

Case Brief

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Parties

Pienaar Van Heerden

Applicant

Anthea Lynette Van Heerden

Applicant

National Director of Public Prosecutions

Respondent

Andre Charl Van Heerden N.O.

Respondent

Procedural Posture

Variation Application / Application for Variation of Restraint Order Under POCA

Legal Issues

  1. 1 Whether the applicants have made full disclosure of their restrained and unrestrained assets as required for release of funds under s 26(6) of POCA.
  2. 2 Whether the restraint order correctly included Mr van Heerden's pension benefit, considering s 37A(1) of the Pension Funds Act.
  3. 3 Whether the applicants are entitled to the release of funds for reasonable living and legal expenses.

Ratio Decidendi

The court found that the applicants failed to make full disclosure of their restrained and unrestrained assets, as required by s 26(6) of POCA. There were significant gaps and inconsistencies in their evidence, including lack of updated financial records for their businesses, unexplained proceeds from property sales, and absence of relevant bank statements. The applicants also failed to comply with the restraint order's requirements for monthly statements. As a result, the court did not have jurisdiction to grant the relief sought. The issue of whether Mr van Heerden's pension benefit was correctly included in the restraint order under s 37A(1) of the Pension Funds Act was not decided, as...

Court Disposition

Application dismissed for lack of jurisdiction due to insufficient disclosure.

Orders

  • The application is dismissed with costs, such costs to exclude the costs of the additional appearance on 5 June 2015.