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South Africa decisions
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National Director of Public Prosecutions v Wood and Others (2019/40451) [2020] ZAGPJHC 264 (26 October 2020)
The High Court discharged an ex parte POCA restraint order, finding the NDPP failed to disclose material facts, including related settlement and court orders.
Falk and Another v National Director of Public Prosecutions (CCT 95/10) [2011] ZACC 26; 2011 (11) BCLR 1134 (CC); 2012 (1) SACR 265 (CC) (16 August 2011)
The Constitutional Court held that the registration of the German restraint order was effected under section 24 of ICCMA and could only be set aside under the grounds listed in section 26(1) of ICCMA. The applicants failed to approach the High Court for rescission on the basis that the registration was not in accordance with ICCMA, and did not demonstrate that enforcement would be contrary to the interests of justice. The interdictory order was granted as an ancillary order under section 26(8) of POCA, following the registration of the foreign restraint order, and section 26(10)(b) of POCA do…
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Naidoo and Others v National Director of Public Prosecutions and Another (CCT 112/10) [2011] ZACC 24; 2011 (12) BCLR 1239 (CC); 2012 (1) SACR 358 (CC) (10 August 2011)
Section 26(6) of the Prevention of Organised Crime Act does not permit a court to authorise payment of a defendant's legal expenses from assets held by persons other than the defendant. The statutory scheme requires restraint orders to be individualised and applies only to property held by the person against whom the order is made. The mechanism for access to restrained assets for legal expenses is narrowly crafted and cannot be overridden by the general powers in section 26(1). The interpretation advanced by the applicants is not tenable in light of the statutory language and purpose, which…
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Fraser v ABSA Bank Limited (66/05) [2006] ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) (15 December 2006)
The Constitutional Court held that a creditor may intervene in section 26(6) POCA proceedings, but its claim is not automatically preferred over legal expenses.
National Director of Public Prosecutions v Hlongwa, National Director of Public Prosecutions v Nkosi and Others (7968/04 , 7970/04) [2006] ZAGPHC 16; [2006] 2 All SA 486 (T) (17 February 2006)
The court found that the applicant failed to present cogent, admissible evidence to justify confirmation of the provisional restraint orders. The affidavits relied upon were defective and did not comply with statutory requirements. The evidence was substantially hearsay, unsupported by personal knowledge or proper expert opinion, and the applicant did not seek condonation for these defects. The respondents' constitutional objections were noted, but the court exercised its discretion to structure orders that preserved property pending criminal prosecution without unduly depriving the defendant…
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