National Director of Public Prosecutions v Phillips and Others

• Jurisdiction: South Africa
• Citation: 2002 (4) SA 60 (W)

National Director of Public Prosecutions v Phillips and Others
2002 (4) SA 60 (W)

2002 (4) SA p60

Citation	2002 (4) SA 60 (W)
Case No	2000/27885
Court	Witwatersrand Local Division
Judge	Heher J
Heard	February 22, 2001; February 23, 2001; February 24, 2001; February 25, 2001; February 26, 2001; February 27, 2001; February 28, 2001; March 1, 2001; March 2, 2001
Judgment	July 31, 2001
Counsel	C Z Cohen SC (with him W H Trengove SC and A P H Cockrell) for the applicant.; K J Kemp SC (with him M R Hellens SC and M D C Smithers) for the respondents

Flynote : Sleutelwoorde C

Criminal procedure — Search and seizure — Seizure — Restraint order in terms of s 26 of Prevention of Organised Crime Act 121 of D 1998 — Purpose of an order in terms of s 26 is to secure or reinforce eventual claim for confiscation order — Statute not requiring applicant to show threat to dispose of any of property with intention of E defeating applicant's claim — Legislature not, as jurisdictional prerequisite, requiring Court to examine likely intention of respondent in regard to retention or disposal of property nor expecting National Director of Public Prosecutions to adduce evidence of state of mind about which he would often possess no knowledge — However, absence of such intent may properly be taken into F consideration in exercise of discretion in formulation or appropriate condition attaching to order.

Criminal procedure — Search and seizure — Seizure — Restraint order in terms of s 26 of Prevention of Organised Crime Act 121 of 1998 — Section 25(1) of Act requiring only that application for restraint order establishes reasonable grounds for believing that G confiscation order may be made — Restraint order may relate to assets which, in their value, need bear no relation to amount which may ultimately be confiscated, extending as it may to all realisable property held by such person, whether specified in restraint or not. H

Criminal procedure — Search and seizure — Seizure — Restraint order in terms of s 26 of Prevention of Organised Crime Act 121 of 1998 — Burden of proof — Prima facie case required for order in terms of s 26 is proof of reasonable prospect of obtaining both conviction in respect of the charges levelled against respondent and subsequent confiscation order under s 18(1) — Appropriate in determining whether onus discharged to apply long accepted test of taking facts I set out by applicant together with any facts set out by respondent which applicant cannot dispute and to consider whether, having regard to innate probabilities, applicant should on those facts obtain final relief at trial (for this purpose, the confiscation hearing).

Administrative law — Decisions of functionary — Legitimate expectation doctrine — J

2002 (4) SA p61

Requirements for legitimacy of expectation include that (i) representation underlying expectation to be clear, unambiguous and A devoid of relevant qualification; (ii) expectation to be reasonable; (iii) representation to have been induced by decision-maker; (iv) representation to be one which is competent and lawful for decision-maker to make, without which reliance cannot be legitimate — Any extension of operation of legitimate expectation which relies upon conduct of unauthorised State official or one going beyond B his or her statutory power to bring about effect of nolle prosequi both unnecessary and undesirable.

Constitutional law — Legislation — Whether unconstitutional — Question whether provision in statute inconsistent with provisions of Constitution of the Republic of South Africa Act 108 of 1996 cannot simply be determined by comparison of text of the one with text of the C other because constitutionality of statutory provision may depend on qualitative assessment of its impact on those who are subject to it; provision of statute not invalid unless it is incapable of justification in terms of Constitution — Constitutionality may depend on evidence of fact in respect of importance and purpose of statutory D provision under attack, relation between its limitation of constitutional right and its purpose and whether there are less restricted means to achieve its purpose, as well as questions of fact relating to retrospectivity or suspension of declaration of invalidity.

Criminal procedure — Search and seizure — Seizure — Restraint order in terms of s 26 of Prevention of Organised Crime Act 121 of E 1998 — Whether proceedings criminal or civil in nature — Mere fact that application for confiscation order follows upon criminal conviction and culmination in judgment against defendant for payment to State of amount based on benefit derived from crimes not sufficient in itself to constitute proceedings criminal and render confiscation order criminal punishment or render defendant an 'accused person' within the F meaning of s 35(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Application for confiscation order properly characterised as civil proceedings.

Constitutional law — Human rights — Right to fair public hearing in court — Application for restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Although Act permits applicant to G apply for restraint order by ex parte application, this not rendering proceedings unfair, as (i) it is limited to application for restraint order and not applying to application for confiscation order; (ii) for practical purposes it is necessary to prevent respondent from transfering funds to defeat purposes of restraint; and (iii) Act including number of safeguards to ensure that remedy not operating H unfairly — Presumptions and deeming provision in ss 15, 19, 20 and 22 of Act not rendering proceedings unfair, as (i) ss 15, 19 and 20 not creating evidential presumptions or deeming provisions in favour of State, but rather laying down substantive rules of law for quantification of values and amounts; (ii) prima facie presumptions created by s 22 relating to matters of which State would I ordinarily have little or no information but of which respondent likely to possess intimate knowledge and not shifting burden of proof to respondent; (iii) High Court vested with wide discretionary powers to ensure that proceedings are fairly conducted — Constitution of the Republic of South Africa Act 108 of 1996, s 34. J

2002 (4) SA p62

Constitutional law — Human rights — Right to fair public hearing — Enquiry A in terms of s 18(1) of Prevention of Organised Crime Act 121 of 1998 related to benefit derived from offences charged — Application for confiscation order cannot be granted until Court has decided that source is criminal activity which is sufficiently related to offences of which respondent convicted — Precisely how determination made left to discretion of Court — Term 'any criminal activity' in section presupposing that all elements of crime attached to it and that all B defences which would be available in criminal trial may equally be raised in answer — Each application to be decided on facts proved to satisfaction of the Court — Expression 'related criminal activity', therefore, ordinarily has to have fairly limited range — Usually time period would be within or close to period of charge and possess some C connection to it (other than simply being an offence of the same nature) — Constitution of the Republic of South Africa Act 108 of 1996, s 34.

Constitutional law — Human rights — Right to fair public hearing in court — Restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Property realisable in terms of s 14 of Act — Primary concern of Legislature is not title, registered or otherwise — One major D evil which Legislature contemplated and set out to neutralise is concealment by criminals of their interest in proceeds of crime — That suggesting that 'holding' of property should be given meaning wide enough to further that end — When person exercises power of disposal over property or has exclusive use of or control over properties and is E real beneficiary (albeit through shareholding) of income from those properties or any proceeds of disposal of them, then she or he 'holds' such properties within meaning of s 14(1) of Act and it is unnecessary to invoke doctrine of lifting corporate veil — Constitution of the Republic of South Africa Act 108 of 1996, s 34. F

Headnote : Kopnota

The purpose of an order in terms of s 26 of the Prevention of Organised Crime Act 121 of 1998 is to secure or reinforce the National Director of Public Prosecution's eventual claim for a confiscation order in terms of the Act. The statute does not require the applicant to show a threat to dispose of any of respondent's property with the intention of defeating the applicant's claim. That such a threat G exists seems to be inherent in the nature of the statutory remedy, dependent as it is upon proof of reasonable grounds for believing that a conviction may follow and that the respondent may thereafter be found to have benefited from the proceeds of the crime or crimes of which he has been convicted or any sufficiently related criminal activity. The Legislature did not, as a jurisdictional prerequisite, require the Court to examine the likely intention of a respondent H in regard to the retention or disposal of the property nor did it expect the National Director to adduce evidence of a state of mind about which she or he would often possess no knowledge. However, the absence of such an intent may properly be taken into consideration in the exercise of the discretion in the formulation or appropriate condition attaching to the order. (Paragraph [7] at 76J - 77D/E.) I

Section 25(1) of the Act requires only that an application for a restraint order establishes reasonable grounds for believing that a confiscation order may be made. Had it been the...