Bester and Another NNO v National Director of Public Prosecutions; National Director of Public Prosecutions v Kleinhans and Others

• Jurisdiction: South Africa
• Judge: Brand JA, Maya JA and Seriti JA
• Judgment Date: 30 November 2011
• Citation: 2013 (1) SACR 83 (SCA)
• Docket Number: 198/2011 [2011] ZASCA 234
• Hearing Date: 21 November 2011
• Counsel: G Budlender SC (with K Saller) for the appellant. S Olivier SC (with R Howie) for the respondents.
• Court: Supreme Court of Appeal

Maya JA (Brand JA and Seriti JA concurring):

[1] This appeal concerns the interpretation of s 36 of the Prevention of I Organised Crime Act 121 of 1998 (POCA). More particularly, it raises the question as to the effect of a restraining order under s 26 of POCA on the assets of a company in liquidation where that order is made after the presentation of an application for the winding-up of the company, but before the actual winding-up order is granted.

[2] The relevant facts are briefly these. On 19 November 2008 J BMI – Techknowledge Group (Pty) Ltd, a creditor of Aquila Holdings

Maya JA (Brand JA and Seriti JA concurring)

(Pty) Ltd (Aquila), launched an application in the Western Cape High A Court for the liquidation of Aquila on the basis that it was unable to pay its debts. On 10 March 2010 Aquila was placed in provisional liquidation. It was finally wound up on 10 May 2010. In the interim, on 3 July 2009, the respondent (the NDPP) obtained a provisional restraint order in an application launched under s 26 of POCA [1] in respect of the B realisable property of Aquila, Aquila's sole director and shareholder, Mr Francois Kleinhans, and other entities linked to it. In terms of this order, 490 shares owned by Aquila in Optipharm Healthcare (Pty) Ltd, a company in which it had 70 % shareholding, were provisionally restrained and Mr Stephen Powell was appointed as curator bonis, with the mandate to take possession of the shares which Aquila was ordered C to surrender to him.

[3] On 24 May 2010 the appellants, then Aquila's joint provisional liquidators, launched an application seeking leave to intervene in the restraint proceedings and a variation of the restraint order, releasing the D shares from its ambit by virtue of s 36(2) of POCA, on the basis that Aquila's winding-up had started before the restraint order was granted. This, in their opinion, meant that Aquila's assets fell to be administered by them. On 2 December 2010 the court below (per Fourie J) simultaneously heard the NDPP's application for the confirmation of the provisional restraint order (which was not opposed) and the intervention E application. By then the appellants had become Aquila's liquidators.

[4] The court below acknowledged the appellants' right to intervene in terms of s 28(2)(a) of POCA, but dismissed their application and confirmed the provisional restraint order without variation. The gist of F its reasoning was that s 36(1) has no application in the matter, and that, on the ordinary meaning of the provisions of s 36(2), its operation is

Maya JA (Brand JA and Seriti JA concurring)

A triggered only if the winding-up order has actually been granted when the restraint order is made, which did not happen in this case. The appellants challenge this decision with the leave of the court below.

[5] Section 36 of POCA reads:

B 'Effect of winding-up of companies or other juristic persons on realisable property

(1) When any competent court has made an order for the winding-up of any company or other juristic person which holds realisable property or a resolution for the voluntary winding-up of any such company or juristic person has been registered in terms of any applicable law —

(a)

C no property for the time being subject to a restraint order made before the relevant time; and

(b)

no proceeds of any realisable property realised by virtue of section 30 and for the time being in the hands of a curator bonis appointed under this Chapter,

shall form part of the assets of any such company or juristic person.

D (2) Where an order mentioned in subsection (1) has been made in respect of a company or other juristic person or a resolution mentioned in that subsection has been registered in respect of such company or juristic person, the powers conferred upon a High Court by sections 26 to 31 and 33(2) or upon a curator bonis appointed under this Chapter, shall not be exercised in respect of any property which forms part of the assets of such company or juristic person.

E (3) Nothing in the Companies Act, 1973 (Act 61 of 1973), or any other law relating to juristic persons in general or any particular juristic person, shall be construed as prohibiting any High Court or curator bonis appointed under this Chapter from exercising any power contemplated in subsection (2) in respect of any property or proceeds mentioned in subsection (1).

F (4) For the purposes of subsection (1), the relevant time means —

(a)

where an order for the winding-up of the company or juristic person, as the case may be, has been made, the time of the presentation to the court concerned of the application for the winding-up; or

(b)

G where no such order has been made, the time of the registration of the resolution authorising the voluntary winding-up of the company or juristic person, as the case may be.

(5) . . . .' [2]

Maya JA (Brand JA and Seriti JA concurring)

[6] I see no ambiguity in the wording of these provisions. Given their A plain meaning and read in context, their operation is governed by two jurisdictional facts envisaged in both ss (1) and (2) — ie the 'making' of an order for the winding-up of a company and the grant of a restraint order in respect of its realisable property. The sequence in which these two events occur is crucial. Section 36(1) presents no controversy. Read B with the definition of 'relevant time' set out in ss (4)(a), it expressly excludes assets under restraint from a company's estate where the restraint order preceded the presentation to court of such company's winding-up application.

[7] But POCA bears no description of the phrase 'presentation to the C court' which, incidentally, is used nowhere else in the Act, but in ss (4)(a). A contention made on the appellants' behalf in this regard was that the words must be given the established judicial meaning (to ensure certainty in the law, among other reasons) placed upon a similar phrase previously used by the legislature, in respect of a similar subject-matter, D in s 348...