National Director of Public Prosecutions v Braun and Another

• Jurisdiction: South Africa
• Judge: Traverso DJP
• Judgment Date: 20 September 2006
• Citation: 2007 (1) SA 189 (C)
• Hearing Date: 24 August 2006
• Docket Number: 220/2006
• Counsel: A Schippers SC (with E Baartman) for the applicant. D Melunsky for the first respondent. I J Muller SC for the second respondent.
• Court: Cape Provincial Division

Traverso DJP:

[1] In this application the respondents are applying in terms of Rule 6(12)(c) for the reconsideration of an G ex parte order in terms whereof the respondents were called upon to show cause why an interim preservation order of property should not be made under the Prevention of Organised Crime Act 121 of 1998. H

[2] The purpose of the application for an interim preservation of property order (the main application), in respect of which the said rule nisi was issued, is to obtain an order under the Act in terms of which the respondents would forfeit certain immovable property and a motor vehicle that the applicant alleges were the instrumentalities of crime. I

[3] The property that forms the subject-matter of the order is erf 1084, Bakkershoogte, situate in the Helderberg Municipality, Somerset West (the immovable property), as well as a BMW X5 with registration No CFM33751 (the vehicle). The applicant contends that there are reasonable grounds for believing that the immovable property and the J

Traverso DJP

vehicle were instrumentalities in the crime of attempted rape and numerous contraventions of the Sexual Offences Act 23 of 1957 A involving children.

[4] More specifically, the applicant contends that the first respondent used the immovable property extensively to commit unlawful carnal intercourse and other lewd acts with children. Seven of the children involved in the commission of these offences made B affidavits describing how the first respondent, on numerous occasions, made use of the property in order to commit those acts. They also described how the first respondent committed at least 23 lewd acts with them in the vehicle.

[5] On behalf of the applicant it was argued that the first respondent had unlawful carnal intercourse and committed lewd acts C because the property provided him with a secure private residence within which to exploit children sexually, without risking detection by law enforcement officers or concerned members of the public. It was further argued that the facts show that the first respondent evaded suspicion and detection by concealing the children in the vehicle. This D he did by lowering the seats and getting the children to lie down while he transported them in the vehicle to the house in order to commit indecent and obscene acts with them. On this basis it was argued that both the immovable property and the vehicle were instrumentalities in the crimes. E

[6] The first respondent has fled the country and is presently in Germany. He fled through Namibia. The vehicle which was allegedly used to entice the children, to transport them and to perform sexual acts with them, was left at the airport in Namibia.

[7] That is the factual background upon which the application was made. F

[8] The application was issued on Friday, 13 January 2006, and on the same day the applicant approached Goliath J, who was on duty in the 'fast lane' of the Third Division, and sought an ex parte in camera order in Chambers for the preservation of the immovable property registered in the name of the second respondent, G and the vehicle, of which the first respondent is the owner. Goliath J granted the order in terms of a draft order which had been prepared on behalf of the applicant. The effect of the order was to place the property in the hands of the curator bonis and to prohibit any interference with it of any sort. The rule nisi which was issued by Goliath J was returnable on 2 February 2006. H The matter was postponed on several occasions and eventually was set down for hearing on 24 August 2006 for reconsideration of the preservation order.

Rule 6(12)(c)

[9] The procedure for the reconsideration of an urgent order granted in the absence of a party is governed by Rule 6(12)(c), I which provides:

'(c)

A person against whom an order was granted in his absence in an urgent application may by notice set down the matter for reconsideration of the order.'

[10] This Rule was considered in ISDN Solutions (Pty) Ltd v CSDN J

Traverso DJP

Solutions CC and Others 1996 (4) SA 484 (W) ([1996] 4 All SA 58), where Faber AJ said the following at 486H - 487C (SA): A

'The Rule has been widely formulated. It permits an aggrieved person against whom an order was granted in an urgent application to have that order reconsidered, provided only that it was granted in his absence. The underlying pivot to which the exercise of the power is coupled is the absence of the aggrieved party at the time of the grant B of the order.

Given this, the dominant purpose of the Rule seems relatively plain. It affords to an aggrieved party a mechanism designed to redress imbalances in, and injustices and oppression flowing from, an order granted as a matter of urgency in his absence. In circumstances of urgency where an affected party is not present, factors which might conceivably impact on the content and form of an order may not be known C to either the applicant for urgent relief or the Judge required to determine it. The order in question may be either interim or final in its operation. Reconsideration may involve a deletion of the order, either in whole or in part, or the engraftment of additions thereto.

The framers of the Rule have not sought to delineate the factors which might legitimately be taken into reckoning in determining whether any particular order falls to be reconsidered. What is plain is that a D wide discretion is intended. Factors relating to the reasons for the absence, the nature of the order granted and the period during which it has remained operative will invariably fall to be considered in determining whether a discretion should be exercised in favour of the aggrieved party. So, too, will questions relating to whether an imbalance, oppression or injustice has resulted and, if so, the nature E and extent thereof, and whether redress is open to attainment by virtue of the existence of other or alternative remedies. The convenience of the protagonists must inevitably enter the equation. These factors are by no means exhaustive. Each case will turn on its facts and the peculiarities inherent therein.'

[11] Mr Schippers, who appeared for the applicant with Ms Baartman, argued in limine that Rule F 6(12)(c) cannot apply in an application made in terms of s 38(2) of POCA. He argued that Rule 6(12)(c) was in direct conflict with the provisions of POCA. Accordingly, he argued that the Rule may not be invoked to undo that which is authorised by the Act itself. G

[12] He argued that on its plain wording s 38(2) of POCA enjoins a High Court to make a preservation order of property if there are reasonable grounds for believing that the property concerned is an instrumentality of an offence referred to in Schedule 1 of the Act, or is the proceeds of unlawful activities. Section 38(2) of POCA provides: H

'38. . . .

(2) The High Court shall make an order referred to in ss (1) if there are reasonable grounds to believe that the property concerned -

(a)

is an instrumentality of an offence referred to in Schedule 1; or

(b)

is the proceeds of unlawful activities; . . . .'

...