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

• Jurisdiction: South Africa
• Citation: 2013 (1) SACR 83 (SCA)

Bester and Another NNO v National Director of Public Prosecutions;
National Director of Public Prosecutions v Kleinhans and Others
2013 (1) SACR 83 (SCA)

2013 (1) SACR p83

Citation	2013 (1) SACR 83 (SCA)
Case No	198/2011; [2011] ZASCA 234
Court	Supreme Court of Appeal
Judge	Brand JA, Maya JA and Seriti JA
Heard	November 21, 2011
Judgment	November 30, 2011
Counsel	G Budlender SC (with K Saller) for the appellant.; S Olivier SC (with R Howie) for the respondents.

Flynote : Sleutelwoorde

Prevention of crime — Restraint order — Effect of winding-up application H brought before restraint order granted — Section 36(2) of Prevention of Organised Crime Act 121 of 1998 excluding assets of company from ambit of restraint order.

Headnote : Kopnota

Where a restraining order under s 26 of the Prevention of Organised Crime Act I 121 of 1998 (POCA) is made 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, s 36(2) of POCA excludes the assets of the company from the ambit of the restraint order. (Paragraph [12] at 89e.) J

2013 (1) SACR p84

Cases cited

Lief, NO v Western Credit (Africa) (Pty) Ltd 1966 (3) SA 344 (W): dictum at 347A referred to A

Rennie NO v South African Sea Products Ltd 1986 (2) SA 138 (C): dicta B at 141I – 142A referred to

The Nantai Princess Nantai Line Co Ltd and Another v Cargo Laden on the MV Nantai Princess and Other Vessels and Others 1997 (2) SA 580 (D): dicta at 584G – 586G referred to

Venter NO v Farley 1991 (1) SA 316 (C): dictum at 320C – F referred to.

Legislation cited

Statutes

C The Prevention of Organised Crime Act 121 of 1998, ss 26 and 36(2): see Juta's Statutes of South Africa 2011/12 vol 1 at 2-593 and 2-597.

Case Information

Appeal from a decision in the Western Cape High Court (Fourie J). The facts appear from the reasons for judgment.

G Budlender SC (with K Saller) for the appellant. D

S Olivier SC (with R Howie) for the respondents.

Cur adv vult.

Postea (November 30). E

Order

1.

The appeal is upheld with costs, including the costs of two counsel.

2.

The order of the court below is set aside and replaced with the following:

'(a)

F The 490 shares in Optipharm Healthcare (Pty) Ltd held by Aquila Holdings (Pty) Ltd (in liquidation) are excluded from the Schedule of Known Assets reflected in annexure A to the provisional restraint order of 3 July 2009 (the restraint order), and the restraint order is varied in this respect.

(b)

G The costs of the intervention application launched by the first and second intervening applicants shall be paid by the applicant, including the costs of two counsel where employed.

(c)

Subject to the aforegoing, the restraint order is confirmed against the defendant and respondents only in respect of H such property as held by them at the date of this order.'

Judgment

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

2013 (1) SACR p85

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

2013 (1) SACR p86

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...