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South Africa decisions
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National Director of Public Prosecutions v Mogotlane and Others (2023-028928) [2025] ZAGPPHC 786 (1 August 2025)
The High Court dismissed a procedural application to compel under rule 35(12) and confirmed a restraint order against specified defendants and a respondent.
Modjela N.O and Another v Engelbrecht N.O and Another (3783/2022) [2025] ZAMPMBHC 56 (18 June 2025)
The court found that the applicants failed to establish urgency as required by Rule 6(12)(b), having delayed their application despite early notice of the intended sale. The applicants did not comply with their disclosure obligations under section 26(7) of POCA, nor did they engage constructively with the Curator to resolve the matter. Their assertion of irreparable harm was undermined by the existence of a further period for acceptance of tenders and their refusal to discuss alternative means of preserving the property. The court held that the urgency was self-created and that the applicants…
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Smith v Hills and Another (2025/055555; 2021/4094; SS 79/2022) [2025] ZAGPJHC 503 (23 May 2025)
The High Court dismissed an urgent POCA application for release of restrained funds for legal fees, finding insufficient disclosure of restrained and unrestrained assets.
National Director of Public Prosecutions v Sharma and Others (2427/2021) [2024] ZAFSHC 416 (27 December 2024)
The court held that the proceedings against the third defendant are not concluded for the purposes of s 17(a) of POCA while an application for leave to appeal is pending. The common law principle that the noting of an appeal suspends the operation of the order applies, and there is no indication that Parliament intended to alter this principle in POCA. The word 'acquitted' in s 17(a) refers to a final order, not one subject to appeal. The restraint order must remain in force to prevent dissipation of assets until the criminal proceedings are finally determined. The points of law raised by Isl…
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National Director of Public Prosecutions v Khoza and Others (44862/2021) [2024] ZAGPPHC 1324 (19 December 2024)
The court found that the applicant met the low evidential threshold required under section 25 of POCA, as the uncontested evidence established reasonable grounds for believing that a confiscation order may be made against the first, second, and third defendants. The defendants failed to file answering affidavits and relied solely on attacking the founding affidavit, which was insufficient to rebut the applicant's case. The evidence showed that Tshepo Khoza manipulated procurement processes, supplied false information, and failed to declare relevant interests and relationships, thereby facilit…
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Mokoena and Others v National Director of Public Prosecutions and Another (11305/2022) [2024] ZAGPJHC 967 (30 September 2024)
The court found that the first applicant, as both a trustee and beneficiary of the Trust, is entitled to apply for the release of funds from restrained property for reasonable legal and living expenses under section 26(6) of POCA. The applicant made full disclosure of his interests in the restrained property and demonstrated that he cannot meet the legal and living expenses from unrestrained property. The legal expenses incurred are reasonable and directly related to proceedings under POCA. The tertiary education fees for the first applicant’s daughter, who is a minor and not self-supporting,…
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National Director of Public Prosecutions v Mthombeni and Others (1188/2024) [2024] ZANWHC 209 (5 August 2024)
The court found that section 26 of POCA expressly authorises the NDPP to seek ex parte restraint orders over realisable property pending criminal prosecution. The Respondents' arguments regarding section 17 of POCA were misplaced, as that section deals with the conclusion of criminal proceedings, not the requirements for restraint orders. The NDPP was not required to prove the Respondents' guilt at this stage, only that there were reasonable grounds for believing a confiscation order may be made. The court held that the NDPP did not abuse its authority, as the previous decisions not to prosec…
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Nyhonyha N O and Others v NDPP (972/2022; 973/2022; 974/2022) [2024] ZASCA 113; [2024] 3 All SA 706 (SCA); 2024 (2) SACR 358 (SCA) (16 July 2024)
The Supreme Court of Appeal held that the appellants, including family trusts and subsidiaries, hold realisable property on behalf of the defendants within the meaning of section 14(1) of POCA. The court found that the evidence established that Mr Nyhonyha and Mr Pillay exercised control over the assets of the trusts and subsidiaries, were the real beneficiaries, and treated the assets as their own. Substantial interest-free loans and control over shareholdings demonstrated that the trusts' assets were used for the defendants' benefit. The court rejected the narrow interpretation advanced by…
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National Director of Public Prosecutions v Dynlog Rental (Pty) Ltd t/a Dynamic Truck Rental and Others (A63/2023) [2024] ZAFSHC 177 (6 June 2024)
Appeal over a POCA restraint order in a tax-evasion prosecution partly succeeded; the order was confirmed only against the company, not its directors.
Lebashe Investment Group (Pty) Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others (2022-060488) [2024] ZAGPJHC 117 (9 February 2024)
The court held that the arbitrator was entitled to decide upon his own jurisdiction, and Lebashe, having participated in the special plea procedure, could challenge the interim award on review. The restraint order under POCA does not prohibit the continuation of arbitration proceedings, as 'dealing in' property is interpreted narrowly to exclude adjudication of rights. The arbitrator did not commit a gross irregularity or exceed his powers under section 33(1)(b) of the Arbitration Act. The claims in arbitration constitute property under POCA, but the arbitration does not defeat the restraint…
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