National Director of Public Prosecutions v Phillips and Others

• Jurisdiction: South Africa
• Judge: Heher J
• Judgment Date: 31 July 2001
• Counsel: C Z Cohen SC and W Trengove SC (with them A Cockrell) for the applicant. K J Kemp SC and M R Hellens SC (with them M Smithers) for the respondents.
• Citation: 2001 (2) SACR 542 (W)
• Court: Witwatersrand Local Division

Heher J:

[1] On 22 December 2000 the applicant applied ex parte for an order in terms of s 26 of the Prevention of Organised Crime Act 121 of 1998 against the 15 respondents. He was G granted an order in the following terms - I exclude reference to those which are not relevant to the dispute between the parties -

'Pending the return date of this order, and in terms of s 26 of Act 121 of 1998, as amended (''the Act''), the following provisional order is hereby issued with immediate effect - H

1.1 The property to be disclosed and surrendered (''the property'')

This order relates to realisable property as defined in ss 12 and 14 of the Act and extends to

(a)

the property specified in the schedule of assets attached hereto marked annexure ''A'';

(b)

all other property held by first respondent, whether in his name or not; I

(c)

all property which, if transferred to first respondent, or to any third person on behalf of first respondent, would be realisable property.

Provided that the following property, although bound to be disclosed and restrained, is excluded from the surrender provisions of this order: such clothing, bedding, ordinary household furniture, kitchen and laundry appliances and utensils and other articles (other than luxuries) as the curator bonis may consider J

Heher J

to be reasonably needed for the day-to-day use of the first respondent or pending A the return day of this order.

1.2 Restraint

Subject to para 2 below the respondents and any other person with knowledge of this order are hereby prohibited from dealing in any manner with the property, except as required or permitted by this order.

1.3 The curator bonis B

(a)

In terms of s 28(1)(a) of the Act, Theodor van den Heever, a partner at Deloitte & Touche is hereby appointed as curator bonis;

(b)

After obtaining letters of curatorship in terms of s 32(1) of the Act, the curator bonis is hereby authorised and required to take the property included in para 1.1 of this order, into his possession or under his control, take care of such property and administer it. He shall have such powers, duties and authority as C are provided for in the Act and such further powers as are specified in this order as set out in the paragraphs below:

(i)

The curator shall have the power and authority to act as shareholder, director or member, as the case may be, or in such other capacity as may be required in order for the curator bonis to exercise effective control of the assets of the first respondent, in the place and stead of the first respondent, with regard to: D

(aa)

the shareholdings or interests of the first respondent in the second to fifteenth respondents, or any other shareholdings or interests held by the first respondent;

(bb)

his functions, privileges and duties as director or member as the case may be of the second to twelfth respondents;

(ii)

The curator bonis is hereby authorised to take all reasonable and lawful steps to discover any fact relating to any of the E property included in para 1.1 above, and to locate such property with a view to achieving the objects of this order, read in the context of the Act and, in particular, s 33(1) thereof including:

(aa)

to inspect and analyse all data stored on first respondent's computers, software and hardware for the purposes of tracing further assets; F

(bb)

to make enquiries of the first respondent's accountants and pursuant to such enquiries inspect relevant documentation relating to the affairs of the first respondent and of any of the companies and close corporations in which the first respondent has shares or interests;

(cc)

to make contact with all financial institutions here and abroad known to the curator bonis to be holding G monies, interests or assets of the first respondent, and to inform such institutions of the existence and terms of this order, and to make arrangements for the repatriation of such monies, interests and assets;

(iii)

The curator bonis is further authorised to require any person obliged to make disclosure under para 1.8 or 1.9 of H this order to provide such further information as the curator bonis considers relevant to any fact that has been so disclosed or that should have been disclosed, which authority shall be exercised with a view to achieving the objects of this order, read in the context of the Act and, in particular, s 33(1) thereof;

(iv)

If the curator bonis should at any time have reasonable grounds for believing that any person other than any of the respondents (''the donee'') has received an affected gift, as I defined in ss 12(1) and 16 of the Act, he may apply to this Court ex parte and on these papers, supplemented so far as need be, for the joinder of the donee as a respondent and for the extension of this order to the donee and to the affected gift or other property held by the donee to the value of such gift, so far as may be appropriate; J

Heher J

(v)

The curator bonis is required and directed by noon on Tuesday 16 January 2001 to serve on the applicant's attorney, A and on all the respondents, if such parties have delivered notice of intention to oppose the confirmation of this order, at the address given by them for service of documents, and to file with the registrar of this court, together with a copy for delivery to the Master of the High Court, an interim report in which he shall set out: B

(aa)

a description and a sworn valuation (market value as well as forced sale value) of each item of property of which he has taken possession or control in terms of this order;

(bb)

in respect of any item that the curator bonis may have obtained from any person other than the respondents (a ''third party''), or over which he may have assumed control whilst leaving it in the possession of a third party, C the name and address of the third party, together with a description of the item and a statement of the grounds upon which he took possession or control of it;

(cc)

the manner in which he has dealt with or intended to deal with the property taken into his possession or under this control;

(dd)

any other recommendation that he may see fit to make with regard to any realisable property of which he has not by then D obtained possession or control; or in respect of the definition or enlargement of his powers and duties; or in respect of any other aspects of this matter directed to achieving the objects of this order.

The curator bonis is further directed to file supplementary reports containing additional relevant information as and E when such reports become necessary;

(c)

In terms of s 28(3)(c) of the Act the fees and expenditure of the curator bonis shall be paid from the proceeds of any property realised in pursuance of any confiscation order that may be made against the first respondent, failing which, by the State. F

1.4 Surrender of assets

(a)

Such of the first to fifteenth respondents as are in possession or control of any of the property are hereby ordered in terms of s 28(1)(b) of the Act to surrender the property into the custody of the curator bonis forthwith after the curator bonis has identified himself by displaying a copy of this order and his letters of curatorship; G

(b)

Any other person (''a third party'') who is in possession or control of any of the property and who in any manner receives notice or acquires knowledge of this order is hereby ordered to surrender such property, within 24 hours after receiving notice or acquiring knowledge of this order, as the case may be, to the curator bonis;

(c)

Any person or entity who, in terms of this order, is required to surrender any of the property to the curator H bonis, shall, where any such property is held or is situated outside of the Republic of South Africa, repatriate the property concerned for purposes of complying with the said obligation to surrender, at the expense of the curator bonis;

(d)

The curator bonis shall have the discretion to release any of the property to which the order relates into the custody of the person or entity who held such property, under I such conditions as the curator bonis deems appropriate for the proper administration and preservation thereof, and subject to the curator bonis:

(i)

retaining sufficient control over such property;

(ii)

ensuring the preservation of the value and/or physical state of such property. J

Heher J

1.5 Search and seizure A

If the curator bonis should at any time have reasonable grounds for believing that any of the respondents or a third party, on whom this order has been served or who has acquired knowledge of this order, and who has become obliged to surrender any property in accordance with this order, has failed to do so, the curator bonis may give any member of the South African Police Services B (''SAPS'') the particulars of the property concerned, the name of the respondent or third party suspected of being in possession of it, and the address at which he suspects the property may be found; and the member of the SAPS will thereupon be authorised by this order, without further inquiry, but subject to the safeguards in para 1.6 below, to enter the premises indicated by the curator bonis, to search for the property concerned, and, on finding such property, to seize it and place it in the custody of the curator bonis. C

1.6 Safeguards

(a)

Before any search or seizure takes place, the first respondent, and any other respondent or third party whose premises are to be searched, or for whose possession property is to be seized, shall be afforded a reasonable opportunity under the surveillance of D the curator bonis, an attorney, and/or any member of the SAPS who may be present, to summon a legal representative to be present during the search...