South Africa Case Law

Kempff v Mothuloe (2016-31186)

Kempff v Mothuloe (2016-31186) [2024] ZAGPJHC 312 (27 March 2024)

Court

South Gauteng High Court, Johannesburg

Case number

2016/31186

Judge

Strydom

The court found that the suspensive condition requiring the Master’s approval was inserted solely for the benefit of the curator bonis to avoid personal liability. The Master’s reply established that he was not empowered to approve or sanction the settlement agreement, rendering the suspensive condition inapplicable. Applying the officious bystander test, the court held that the parties would have intended the agreement to become unconditional if the Master lacked authority. Alternatively, the applicant, by filing the Rule 41(4) application, validly waived the suspensive condition before the…

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• Settlement Agreement
• Suspensive Condition
• Waiver Of Condition
• Curator Bonis
• Rule 41 Application

Special Investigating Unit and Another v Ndlovu and Others (GP 19/2021)

Special Investigating Unit and Another v Ndlovu and Others (GP 19/2021) [2023] ZAST 2 (31 January 2023)

Court

Special Tribunal

Case number

GP 19/2021

Judge

L.T Modiba

The Tribunal found that the applicants were entitled to relief under section 18(3) of the Superior Courts Act. The preservation orders remained operative and were not disturbed by the application for leave to appeal. The s18(3) order sought to entrench the status quo that prevailed prior to the 7 June 2022 order, ensuring the preserved assets remained under control and preventing their dissipation. The respondents failed to comply with preservation orders and did not dispute the applicants' version that the assets were proceeds of unlawful activities. The Tribunal held that the Superior Court…

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• Execution Pending Appeal
• Preservation Orders
• Curator Bonis
• Forfeiture Of Assets
• Special Investigating Units Act
• Superior Courts Act Application

Regiments Fund Managers (PTY) Ltd and Others v The National Director of Public Prosecutions and Another (40451/2019)

Regiments Fund Managers (PTY) Ltd and Others v The National Director of Public Prosecutions and Another (40451/2019) [2022] ZAGPJHC 659 (1 September 2022)

Court

South Gauteng High Court, Johannesburg

Case number

40451/2019

Judge

ML Senyatsi

The court found that the application was urgent due to the ongoing Supreme Court of Appeal proceedings and the inability of the applicants to obtain substantial redress if the matter were heard in the ordinary course. The applicants had made full disclosure of their assets to the curator bonis, who confirmed compliance with disclosure obligations. The refusal to release funds for legal expenses was not justified, especially as the applicants could not meet these expenses from unrestrained property. The requirements of section 26(6) of POCA were satisfied, and the legal expenses were market-re…

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• Urgent Application
• Restraint Order
• Legal Expenses
• Prevention Of Organised Crime Act
• Full Disclosure
• Curator Bonis

D.J.M v L.M (Leave to Appeal) (22730/2017)

D.J.M v L.M (Leave to Appeal) (22730/2017) [2021] ZAGPPHC 495 (2 August 2021)

Court

North Gauteng High Court, Pretoria

Case number

22730/2017

Judge

E.M Kubushi

The High Court granted leave to appeal only on the exception concerning the Master's approval and the related costs order, finding another court might differ.

• Exception Procedure
• Curator Bonis
• Locus Standi
• Master Of High Court Approval
• Leave-to-appeal
• Exception

Mothuloe v Smith NO (31186/2016)

Mothuloe v Smith NO (31186/2016) [2019] ZAGPJHC 375 (4 September 2019)

Court

South Gauteng High Court, Johannesburg

Case number

31186/2016

Judge

FHD Van Oosten

The High Court dismissed an interlocutory application challenging attorneys’ authority under Rule 7 and awarded punitive costs for abusive allegations.

• Authority Of Attorney
• Rule 7 Challenge
• Curator Bonis
• Punitive Costs
• Rule-7
• Attorney-authority

Sentinel Retirement Fund and Another v Masoanganye (1003/2017)

Sentinel Retirement Fund and Another v Masoanganye (1003/2017) [2018] ZASCA 126 (27 September 2018)

Court

Supreme Court of Appeal

Case number

1003/2017

Judges

Lewis, Cachalia, Saldulker, Mbha, Makgoka

The SCA held that a pension benefit can be paid to a curator bonis under a POCA restraint order and is not blocked by section 37A while still in the fund.

• Pension Fund Protection
• Restraint Order
• Curator Bonis
• Prevention Of Organised Crime Act
• Attachment And Execution
• Pension-fund-protection

National Director of Public Prosecutions v Maziyana and Another (2563/2015)

National Director of Public Prosecutions v Maziyana and Another (2563/2015) [2015] ZAECGHC 72 (30 June 2015)

Court

Eastern Cape High Court, Grahamstown

Case number

2563/2015

Judge

N G Beshe

The High Court partly reconsidered a POCA preservation order, allowing release of the second respondent’s salary from a frozen bank account, but refusing release of a Toyota RAV 4.

• Prevention Of Organised Crime Act
• Preservation Order
• Curator Bonis
• Reasonable Living Expenses
• Preservation-order
• Proceeds-of-crime

Murray NO v King (5984/2013)

Murray NO v King (5984/2013) [2013] ZAGPPHC 68 (22 February 2013)

Court

North Gauteng High Court, Pretoria

Case number

5984/2013

Judge

Pretorius

The High Court found the respondent in contempt of a preservation order, declared the matter urgent, and ordered compliance within 24 hours or suspended imprisonment.

• Contempt Of Court
• Curator Bonis
• Preservation Order
• Arbitration Stay
• Urgent Interdict
• Contempt-of-court

37 Gillespie Street, Durban (Pty) Ltd v National Director of Public Prosecutions and Another (AR 22/2011)

37 Gillespie Street, Durban (Pty) Ltd v National Director of Public Prosecutions and Another (AR 22/2011) [2011] ZAKZPHC 40; 2012 (2) SACR 118 (KZP) (22 September 2011)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR 22/2011

Judges

Ndlovu, Gorven, Lopes

The High Court held that the NDPP was never in possession or control of the seized property, so no duty of care arose and the damages claim failed.

• Aquilian Action
• Duty Of Care
• Wrongful Seizure
• Preservation Order
• Curator Bonis
• Aquilian-action

Msimango and Others v National Director of Public Prosecutions and Another, Ex parte: In re National Director of Public Prosecutions v Msimango and Others (1880/2008, 1334/2008)

Msimango and Others v National Director of Public Prosecutions and Another, Ex parte: In re National Director of Public Prosecutions v Msimango and Others (1880/2008, 1334/2008) [2011] ZAFSHC 17 (3 February 2011)

Court

Free State High Court, Bloemfontein

Case number

1880/2008, 1334/2008

Judge

S. Ebrahim

The court found that the applicants had made full disclosure of their interests in the restrained property both in their founding papers and to the Asset Forfeiture Unit. The respondents failed to provide evidence that the amounts claimed for legal expenses were unreasonable or that the applicants could meet such expenses from unrestrained property. The court held that section 26(6) of POCA does not distinguish between legal expenses for restraint proceedings and related criminal proceedings, and the applicants' right to legal representation is constitutionally protected. The omission in the…

Source excerpt

• Prevention Of Organised Crime Act
• Restraint Order
• Release Of Funds
• Legal Expenses
• Full Disclosure
• Curator Bonis