Falk and Another v National Director of Public Prosecutions

• Jurisdiction: South Africa

Falk and Another v National Director of Public Prosecutions
2012 (1) SACR 265 (CC)

2012 (1) SACR p265

Citation	2012 (1) SACR 265 (CC)
Case No	CCT 95/2010; [2011] ZACC 26
Court	Constitutional Court
Judge	Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Mthiyane AJ, Nkabinde J, Van Der Westhuizen J and Yacoob J
Heard	March 8, 2011
Judgment	August 16, 2011
Counsel	RS van Riet SC for the applicants (appellants).; AM Breitenbach SC (with KS Saller) for the respondent.

Flynote : Sleutelwoorde

Prevention of crime — Restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Ancillary orders in terms of s 26(8) — Words 'shall C at the same time' in s 26(8) not meaning that ancillary orders can never be made after s 26(1) restraint order made — Word 'shall' in such phrase to be interpreted as 'may' — Court making restraint order in terms of s 26(1) thus empowered to grant ancillary relief at same time, but not prohibited from doing so at later stage.

Prevention of crime — Restraint order — Foreign restraint order — Registration D of in terms of s 24 of International Co-operation in Criminal Matters Act 75 of 1996 (ICCMA) — Ancillary orders in terms of s 26(8) of Prevention of Organised Crime Act 121 of 1998 — Which court having power to grant ancillary order to registered foreign order — As s 25 of ICCMA providing that registration gives order effect of domestic order, court where foreign order registered necessarily the court that may grant ancillary relief. E

Prevention of crime — Restraint order — Foreign restraint order — Registration of in terms of s 24 of International Co-operation in Criminal Matters Act 75 of 1996 (ICCMA) — Ancillary orders in terms of s 26(8) of Prevention of Organised Crime Act 121 of 1998 (POCA) — Statutes must promote values F underlying open and democratic society based on human dignity, equality and freedom and may not allow for arbitrary deprivation of property — Constitution, 1996, ss 39(2) and 25(1) — Court's interpretation of Acts representing meaningful and workable way of giving effect to these Acts within context of objects of those Acts — Nor does such interpretation offend against spirit, purport and objects of Bill of Rights — International G co-operation in combating crime to protect society a legitimate constitutional objective — Registration of foreign restraint order in terms of ICCMA and consequent interdictory relief under POCA not constituting arbitrary deprivation of property.

Prevention of crime — Restraint order — Foreign restraint order — Registration H of in terms of s 24 of International Co-operation in Criminal Matters Act 75 of 1996 (ICCMA) — Setting-aside of in terms of s 26(1) of Act — Real possibility that assets subject to restraint order might be disposed of — Ample reason, in interests of justice in terms of s 26(1)(d) of ICCMA, for restraint order to remain in place pending outcome of appeal proceedings in foreign country — Otherwise very purpose of restraint order might be defeated. I

Prevention of crime — Restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Ancillary orders in terms of s 26(8) — Setting-aside of in terms of s 26(10) — Where order was granted as ancillary order to foreign restraint order registered in terms of s 24 of International Co-operation in Criminal Matters Act 75 of 1996 (ICCMA), setting-aside of J

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A registration of foreign order would have to be procured — Where application for setting aside of foreign order failing, application for setting aside of ancillary order also failing.

Headnote : Kopnota

It is so that s 26(8) of the Prevention of Organised Crime Act 121 of 1998 B (POCA) requires that a High Court making a restraint order 'shall at the same time' make an order authorising the seizure of movable property concerned. However, this does not mean that ancillary orders can never be made after a s 26(1) order has been made. To construe s 26(8) in this way would be too narrow and render the provision practically meaningless, especially within the context of the interaction between the International C Co-operation in Criminal Matters Act 75 of 1996 (ICCMA) and POCA. It is well known that the term 'shall', in legislation, can mean 'must', but also sometimes 'may'. In this case the latter applies. The court granting the s 26(1) order is empowered to grant ancillary relief at the same time, but is not prohibited from doing so at a later stage. (Paragraph [83] at 288g–289a.)

The requirement in s 26(8) of POCA that the same court that granted the D restraint order has to grant ancillary relief does not pose a problem where a foreign restraint order has been registered in terms of s 24 of ICCMA. Because the foreign order was registered by the registrar, and s 25 of ICCMA states that the registration gives the order the effect of a domestic order, the court where the foreign order is registered is necessarily the court that may grant ancillary relief. (Paragraph [84] at 289b.)

The interpretation of ICCMA and POCA must promote the values that underlie E an open and democratic society based on human dignity, equality and freedom in terms of s 39(2) of the Constitution and it may not allow for the arbitrary deprivation of property in contravention of s 25(1). The interpretation reached in the present case represents a meaningful and workable way of giving effect to POCA and to ICCMA, within the context of the objects of the two statutes. It does not offend against the spirit, purport and F objects of the Bill of Rights. International co-operation in combating crime to protect society is a legitimate constitutional objective. The interdictory order granted in this case also does not allow for the arbitrary deprivation of property. By their very nature, restraint orders restrain the use of property. (Paragraph [92] at 290d–e.)

Following upon the arrest of the first applicant in Germany an order was issued by a court in Germany for the attachment of assets in the first applicant's G estate. The German order was registered by the registrar of a High Court in terms of s 24 of the International Co-operation in Criminal Matters Act 75 of 1996 (ICCMA) in September 2004. Subsequent thereto, in August 2005, the High Court issued, in terms of s 26(8) of the Prevention of Organised Crime Act 121 of 1998 (POCA), an order interdicting the applicants from dealing with assets in South Africa. Criminal proceedings H were instituted against the first applicant in Germany and in May 2008 he was convicted of attempted fraud, conspiracy to misrepresent the financial position of a corporation and misstating information of a corporation in its annual financial statements, but the German court declined to grant a confiscation order against him. The first applicant appealed against the conviction and sentence, and the prosecution appealed against the refusal of I the confiscation order. After the criminal trial in Germany, the applicants applied to the High Court for the setting-aside of the registration of the German restraint order in terms of s 26(1) of ICCMA, for the setting-aside of the interdict under s 26(10) of POCA and for the release of their restrained assets, contending that the criminal proceedings in Germany had been concluded, as the court had decided not to grant a confiscation order against them. It was contended therefore that the registration of the J German restraint order and the consequent interdictory relief should be

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rescinded in terms of s 26(10)(b) read with s 17(b) of POCA. The High A Court dismissed the application. The first applicant's appeal against his conviction in Germany was thereafter dismissed, but the prosecutor's appeal against the refusal of the confiscation order was upheld and the matter referred back to the trial court. The applicants appealed to the Supreme Court of Appeal (SCA) against the dismissal of their application B for the setting-aside of the registration of the German restraint order and the consequent interdictory relief granted by the high court, but the appeal was dismissed. The applicants thereupon applied for leave to appeal to the Constitutional Court. The application for leave to appeal was granted. As to the appeal,

Held, that, as the applicants had conceded in the SCA that there was a real C possibility that the first applicant might dispose of the South African assets in question, there was ample reason, in the interests of justice as contemplated in s 26(1)(d) of ICCMA, for the registration of the German restraint order to stay in place while appeal proceedings were pending in Germany. To hold differently would defeat the very purpose of a restraint order. (Paragraph [65] at 285a–b.)

Held, further, that, in view of the fact that the prosecution in Germany had D appealed against the refusal of the confiscation order, the applicants had not shown that the enforcement of the registered order would be contrary to the interests of justice, as required by s 26(1)(d) of ICCMA. The application to set aside the registration could therefore not succeed. (Paragraph [71] read with para [93] at 286d and 290f–h.)

Held, further, that a proper contextual interpretation of the wording of s 26(8) of E POCA allows for the granting of ancillary relief subsequent to the registration of a foreign order. (Paragraph [85] at 289d.)

Held, further, on the facts, that a case had not been made out for the rescission of the interdictory order in terms of s 26(10) of POCA: to get rid of the ancillary relief, the applicants had to have the registration of the foreign F order under ICCMA set aside, which would necessarily have had the effect of nullifying the ancillary order. This they had failed to do. (Paragraph [91] read with para [94] at 290b...