National Director of Public Prosecutions v Rebuzzi

• Jurisdiction: South Africa
• Judge: Vivier Adcj, Marais JA, Mthiyane JA, Cloete AJA and Nugent AJA
• Judgment Date: 23 November 2001
• Citation: 2002 (2) SA 1 (SCA)
• Docket Number: 94/2000
• Hearing Date: 08 November 2001
• Counsel: N Singh SC (with him D F Dorfling and R M Keightley) for the appellant. No appearance by the respondent, who abided the judgment of the Court.
• Court: Supreme Court of Appeal

Nugent AJA:

[1] This appeal concerns a provisional restraint order that was made in terms of s 26 of the Prevention of Organised Crime Act 121 of 1998 (as amended by the Prevention of Organised Crime Amendment Act 24 G of 1999 and the Prevention of Organised Crime Second Amendment Act 38 of 1999) and thereafter set aside. The appellant now appeals against the order setting it aside with leave granted by the Court a quo. The respondent has abided the judgment of this Court.

[2] Chapter 5 of the Act (which encompasses ss 12 - 36) is designed to enable a court to deprive a convicted person of the H proceeds of crime. Its foundation is s 18(1), which permits a court that has convicted a person of an offence to make what is referred to as a 'confiscation order'. The subsection reads as follows: I

'Whenever a defendant is convicted of an offence the court convicting the defendant may, on the application of the public prosecutor, enquire into any benefit which the defendant may have derived from -

(a)

that offence;

(b)

any other offence of which the defendant has been convicted at the same trial; and J

Nugent AJA

(c)

any criminal activity which the court finds to be sufficiently related to those offences, A

and, if the court finds that the defendant has so benefited, the court may, in addition to any punishment which it may impose in respect of the offence, make an order against the defendant for the payment to the State of any amount it considers appropriate and the court may make any further orders as it may deem fit to ensure the effectiveness and fairness of that order.' B

[3] The amount for which a confiscation order may be made is restricted to the lesser of (a) the monetary value of the proceeds of the offences or related criminal activity or (b) the net value of the sum of the defendant's property and certain defined gifts (called 'affected gifts') made by the defendant (s 18(2)). C

[4] Sections 25 and 26 (which fall within Part 3 of chap 5) allow for a 'restraint order' to be made in anticipation of the granting of a confiscation order. The purpose of a restraint order is to preserve property so that it might in due course be realised in satisfaction of a confiscation order. Section 26(1) authorises the National Director of Public Prosecutions to apply to a High Court, D ex parte, for an order 'prohibiting any person . . . from dealing in any manner with any property to which the order relates'. The remaining provisions of Part 3 confer wide powers upon the Court as to the terms of a restraint order. In particular, it may appoint a curator bonis to take charge of the property that has been E placed under restraint, order any person to surrender the property to the curator, authorise the police to seize the property and place restrictions upon encumbering or transferring immovable property. It may also make a provisional restraint order having immediate effect and simultaneously grant a rule nisi calling upon the defendant to show cause why the order should not be made final. F

[5] The circumstances in which a restraint order may be made are provided for in s 25(1) as follows:

'A High Court may exercise the powers conferred on it by s 26(1) [ie the powers to make restraint orders] - G

(a)

when -

(i)

a prosecution for an offence has been instituted against the defendant concerned;

(ii)

either a confiscation order has been made against that defendant or it appears to the Court that there are reasonable grounds for believing that a confiscation order may be made against that defendant; and

(iii)

the proceedings against that defendant have not been concluded; or H

(b)

when -

(i)

that court is satisfied that a person is to be charged with an offence; and

(ii)

it appears to the Court that there are reasonable grounds for believing that a confiscation order may be made against such person.'

[6] The restraint order that is now in issue was applied for by the appellant at the request of a company known as PG Bison Ltd I ('the company') which formerly employed the respondent. The application was supported by the evidence of, amongst others, Mr Flockton, the internal audit manager of the company, and Mr Van der Walt, a partner in the auditing firm KPMG. J

Nugent AJA

[7] The respondent was formerly employed at the company's Boksburg factory as a senior credit co-ordinator. Her duties included A receiving the proceeds of cash sales (a combination of cash and cheques) together with the relevant documentation and arranging for them to be deposited into the company's bank...