National Director of Public Prosecutions v Mohamed and Others

• Jurisdiction: South Africa
• Citation: 2003 (2) SACR 258 (C)

National Director of Public Prosecutions v Mohamed and Others
2003 (2) SACR 258 (C)

2003 (2) SACR p258

Citation	2003 (2) SACR 258 (C)
Case No	6325, 9551/01
Court	Cape Provincial Division
Judge	Van Zyl J, Griesel J and N C Erasmus J
Heard	January 27, 2003; January 28, 2003
Judgment	May 8, 2003
Counsel	M Seligson SC (with H Cronje) for the applicant.; A Katz (with M F Osborne) for the defendant and respondents.

Flynote : Sleutelwoorde F

Search and seizure — Restraint order in terms of Prevention of Organised Crime Act 121 of G 1998 — Offences committed before commencement of Act — Clear from wording of s 1(5) of Act that Legislature intended to exclude operation of retrospectivity and also preclude interpretation of s 18 whereby provisions limited so as to apply solely in relation to offences or unlawful activities occurring subsequent to coming into operation of Act. H

Search and seizure — Restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Confirmation of provisional order — Respondent claiming provision of provisional order final in effect and not subject to confirmation — Fact that interim order for attachment or disclosure might have irreversible consequences not rendering such order a final order — Test not whether order might have some final effect, but whether I it involves final determination of rights of parties or affects such final determination — In casu substance of original order clearly provisional and not amounting to any final determination of facts.

Search and seizure — Restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Discretion of Court — Purpose of order to secure J

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or reinforce applicant's eventual claim for confiscation order — Statute not requiring applicant to show threat to A dispose of any property with intention of defeating claim — Such threat inherent in nature of statutory remedy — Legislature accepting that person who faces those prospects not one in whom any confidence can be reposed — Public policy behind legislation therefore demonstrating that Legislature not, as jurisdictional requisite, requiring Court to examine likely intention of respondent in regard to retention or disposal of property, nor expecting National Director B of Public Prosecutions to adduce evidence of state of mind about which she or he will often possess no knowledge.

Search and seizure — Restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Access to funds for living and legal expenses — Interim order C authorising curator to release such of property as might be required for defendant and his family or household's reasonable living expenses, as well as reasonable legal expenses in connection with proceedings, subject to proviso that respondents disclose under oath to satisfaction of Court all of their interests in property to which order related and that they couldn't meet such expenses out of unrestrained property — Respondent contending that order D and s 26(6) of Act inconsistent with right to access to court and right to have adequate facilities to prepare defence — Guarantee in s 34 of Constitution of the Republic of South Africa Act 108 of 1996 that any constraint upon person or property exercised by another only after recourse to Court recognised by laws of land, is precisely what s 26 of Act sets out to E achieve — Far from denying respondent access to Court, provision in question in fact requires access to Court — Application for restraint order can only be made in High Court, to which s 26(1) affords wide discretion in granting restraining orders, which it will exercise in manner that avoids unfairness and unconstitutionality — Respondent against whom provisional restraint order with immediate effect made can F anticipate return day on 24 hours' notice — High Court can vary or rescind restraint order on application of any person affected by it so as to avoid undue hardship.

Search and seizure — Restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Access to funds for living and legal expenses — In exercising G discretion in terms of s 26(6) Court will approach matter in constitutionally sensitive manner, bearing in mind rights enshrined in ss 34 and 35 of Constitution of the Republic of South Africa Act 108 of 1996 — Court required to weigh two competing considerations against each other — Court has to bear in mind that there are reasonable grounds to believe that assets under H restraint are proceeds of crime, or assets representing such assets, and that primary purpose of restraint order to preserve assets under restraint — On other hand, Court has to consider that confiscation order yet to be made and that it has obligation to ensure that restraint order not operating unfairly against respondent.

Search and seizure — Restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Access I to funds for living and legal expenses — Section 26(6) not having effect of denying respondent access to her or his funds — It makes access to funds subject to potestative condition, namely disclosure under oath of interests in property subject to restraint order — Nothing wrong with that requirement — Second requirement imposed by J

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proviso in s 26(6) equally unobjectionable — Respondent has to satisfy Court that she or he cannot meet expenses concerned out of A unrestrained property — Proviso operating to ensure that objects of restraint order, preserving sufficient assets to satisfy confiscation order, not frustrated by requiring respondent first to exhaust all other assets before allowing her or him to draw on assets under restraint to pay living and legal expenses.

Search and seizure — Restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Access B to funds for living and legal expenses — Proviso to s 26(6) not infringing respondent's right to silence and against self-incrimination — Respondent not being compelled to give up right to silence or against self-incrimination; simply confronted with legitimate choice — Disclosure ordered by Court in context of restraint proceedings aimed at securing sufficient C property against which ultimate confiscation order might operate — It is manifestly not aimed at obtaining self-incriminating testimony for purpose of securing conviction against arrested or accused person — Safeguard which accused person has in ensuring that right to fair trial not prejudiced by restraint order is use immunity conferred upon such person in relation D to responses in terms of restraint order — Regarding direct evidence there is complete use immunity — In relation to derivative evidence, court ultimately hearing criminal trial has discretion to disallow such evidence if accused person's right to fair trial compromised should such evidence be allowed.

Headnote : Kopnota

A provisional restraint order had been granted against the defendant and five respondents (the respondents) in terms of E s 26(3)(a) of the Prevention of Organised Crime Act 121 of 1998 (the Act). The order inter alia sought to prohibit the respondents from dealing with any realisable property held or controlled by them, to restrain the respondents from dealing with certain identified property, to cause information to be disclosed pertaining to realisable property held or controlled, or not held by the respondents, and to cause a curator bonis to take F possession of realisable property to secure its preservation pending the granting and finalisation of an intended application for a confiscation order in terms of the Act. The provision for disclosure under oath by the respondents was contained in paras 1.16 - 1.18 of the order. In para 1.20 thereof the order provided for indemnity from use in a criminal trial of the information required to be disclosed by G the respondents in terms of the aforementioned provisions, unless the person who made such disclosure was charged with perjury in relation to such disclosure. The curator was authorised in terms of para 1.21 of the order to release such of the property to which the order related as might be required for the defendant and his family or household's reasonable living expenses, as well as the H respondents' reasonable legal expenses in connection with the proceedings, subject to the proviso, however, that the respondents had disclosed under oath to the satisfaction of the Court all of their interests in the property to which the order related; and that they could not meet such expenses out of unrestrained property. Section 1(5) of the Act, which had been inserted by an amendment to the Act, provided that nothing in the Act or any other law should be construed I as to exclude the application of any provision of chap 5 or 6 of the Act on account of the fact that any offence or unlawful activity concerned had occurred; or any proceeds of unlawful activities had been derived, received or retained, before the commencement of the Act.

On the return day the defendant opposed the relief claimed on three main J

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grounds, viz (a) that no restraining order should be granted, because, under s 18 of the Act, a confiscation order could A not be made with regard to offences committed before the commencement of the Act, and that in the present case, the bulk of the charges pre-dated the commencement of the Act (the retrospectivity argument); (b) that certain paragraphs of the interim order were not susceptible to confirmation, because some of its provisions were final in their effect; and (c) that the Court should, in the exercise of its discretion, refuse to confirm the interim order. It was B submitted by the defendant that the discretion which the Court had as to what property in the hands of a defendant should be...