National Director of Public Prosecutions v Rautenbach and Others

• Jurisdiction: South Africa
• Judge: Mpati DP, Navsa JA, Nugent JA, Erasmus AJA and Ponnan AJA
• Judgment Date: 22 November 2004
• Citation: 2005 (4) SA 603 (SCA)
• Docket Number: 146/2003
• Hearing Date: 19 August 2004
• Counsel: M D Kuper SC (with A Cockrell) for the appellant. M C Maritz SC (with L W de Koning and M Veldsman) for the respondents.
• Court: Supreme Court of Appeal

Nugent JA:

[1] There are two appeals before us, both of which originate from a provisional restraint order that was made by the Johannesburg High Court (Blieden J) in the exercise of the powers conferred upon it by s 26 of the Prevention of Organised Crime Act 121 of 1998. The B provisional order is lengthy and its detailed provisions are not material for present purposes. It is sufficient to say that the order placed under restraint, and appointed a curator bonis to take charge of, certain property, excluding 'such realisable C property as the curator, after determining the value that the property disclosed to him is likely to yield when realised, may certify in writing that he considers to be in excess of the value of R60 million'. The property that was encompassed by the order included property held by the first respondent (who I will refer to as Rautenbach) or by relatives to whom he allegedly made affected gifts, which in turn included a house and six flats in Sandhurst, a farm in D KwaZulu-Natal, a farm in the Western Cape, a Falcon Jet aircraft, a Bell Ranger helicopter, and furniture, fittings, equipment and other moveable items (subject to certain exclusions) that were in or on the properties. The order was later extended to include moneys held in certain bank accounts. The only property that was taken into the control of the curator pursuant to the order was the E specified property to which I have referred and there is no indication that any other property exists that might also be subject to the terms of the order. The value of that property does not appear from the evidence but we were told from the bar that it amounts to about R20 million. F

[2] Another 22 respondents were cited in the proceedings but only one of them (Rautenbach's father, who was cited as the third respondent) has joined with Rautenbach to oppose these appeals.

[3] The provisional restraint order was discharged by Rabie J on the return day and the main appeal, which is before us with the G leave of the Court a quo, is against that decision. The ancillary appeal raises the question whether the initiation of the main appeal had the effect of keeping the provisional restraint order in place. In separate proceedings that were brought by the two respondents, Rabie J declared that it did not have that effect and he ordered the curator to return the property that had H been placed under restraint. The appellant appeals against that decision with leave granted by this Court.

[4] Before turning to the merits of the appeals there are certain preliminary matters that need to be dealt with. The prosecution of the appeals was irregular in three respects - the notice of appeal in both cases, and the appellant's heads of argument, I were all filed out of time - for which the appellant sought condonation. Those applications were opposed but the explanation that was tendered by the State Attorney, the importance of the issues that arise in these appeals, and the lack of material prejudice that was caused to the respondents, together provide J

Nugent JA

sufficient grounds for condoning the irregularities. Furthermore, the respondents A launched an application to submit further evidence to this Court, but that application has now been abandoned and I need say no more about it. I will deal with the costs relating to those matters later in this judgment.

The ancillary appeal B

[5] The provisional restraint order was made on 18 September 2000 on the ex parte application of the appellant. In due course Rautenbach filed answering affidavits, which were replied to by the appellant, and Rautenbach filed a further affidavit and applied to strike out portions of the replying affidavits. On the extended return day the matter came before Heher J who struck out some of the material C that had been objected to and extended the return day. Further affidavits were then filed by Rautenbach and replied to by the appellant.

[6] On the extended return day the matter came before Rabie J, who discharged the provisional order with costs. (That order is the subject of the main appeal.) Shortly after the provisional order was D discharged the appellant lodged an application for leave to appeal. The appellant took the view that the effect of that application was to revive the provisional restraint order until the outcome of the application for leave to appeal (and any consequent appeal) and the restrained property was not released. That prompted the respondents E to apply to the High Court, as a matter of urgency, for an order compelling the curator to secure the release of the property. The appellant opposed the application and applied in the same proceedings, conditionally upon it being found that the restraint order was no longer in force, for an order permitting the curator to remain in possession of the property pending the outcome of the main F appeal.

[7] Rabie J found in the respondents' favour and issued an order declaring that the lodging of the application for leave to appeal did not revive the provisional order and that the property concerned G was accordingly not subject to any restraint, directing the curator to release the property, and dismissing the counter-application for conditional relief. Leave to appeal against the whole of that order was refused by the Court a quo but was granted by this Court.

[8] The appeal against the dismissal of the counter-application has been abandoned by the appellant. Thus the only issue that arises in H this appeal is whether the Court a quo correctly found that the provisional restraint order was not revived by the lodgment of the I application for leave to appeal in the main proceedings.

[9] Because the ancillary appeal concerns the status of the provisional restraint order only until such time as the main appeal is disposed of it will be apparent that, as between the parties, the outcome of the ancillary appeal will have no practical effect or result. Section 21A(1) of the Supreme Court Act 59 of 1959 gives this Court a discretion, in those circumstances, to dismiss the appeal on those grounds alone. While this J

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Court will generally not entertain appeals that do not concern concrete controversies (Coin Security A Group (Pty) Ltd v SA National Union for Security Officers and Others 2001 (2) SA 872 (SCA)) the issue that arises in this appeal nevertheless relates to an important question of law that is not only the subject of some uncertainty [1] but it also arises frequently in practice and, in my view, we should exercise our discretion to resolve it (cf The Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4) SA 273 (SCA) B para 4).

[10] Rule 49(11) of the Uniform Rules provides that

'where an appeal has been noted or an application for leave to appeal against . . . an order of a Court has been made, the operation and execution of the order in question shall be suspended, C pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs'.

[11] The appellant submitted that in the present case two separate orders were made - first, the provisional order that was made by Blieden J and secondly, the order by Rabie J D discharging it - and that the effect of initiating an appeal against the second order was to suspend only that order, with the logical result that the first order remained extant.

[12] That is to misconstrue the true nature of the orders. As pointed out by Goldblatt J in Chrome Circuit Audiotronics (Pty) Ltd v Recoton European Holdings Inc and Another 2000 (2) SA 188 (W) E at 190B - E, orders of this kind are not independent of one another. An interim order that is made ex parte is by its nature provisional - it is 'conditional upon confirmation by the same Court (albeit not the same Judge) in the same proceedings after having heard the other side' (per Harms JA in MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 746 (SCA) in para [6]), which is why a litigant who F secures such an order is not better positioned when the order is reconsidered on the return day (Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others 2003 (2) SA 385 (SCA) in para [45]). It follows that when an appeal is sought to be brought against the discharge of such an order there is nothing to revive for it is as if no order were made in the first place. G

[13] The appellant submitted that even if that is so in relation to ordinary civil practice a distinction should be made in relation to an order of the kind that is now before us, otherwise the purpose and intent of the Act will be undermined. I see no grounds upon which to make that distinction. The reason for permitting restraint orders to be H sought ex parte is not to ease the burden upon the appellant by ensuring that he can obtain such orders without opposition: It is to ensure that the property concerned is not disposed of or concealed in anticipation of such proceedings. The Act contemplates that such an order is only provisional until it is confirmed on the return day (s 26(3)(a)) and in that respect it I

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is no different to an order made in ordinary civil proceedings. If that means that property will A not be under restraint where a Court erroneously refuses to make such an order (either provisionally at the outset or finally on the return day) - and in my view it does - that is the inevitable consequence of insisting upon an order of a Court before property is placed under restraint. B

[14] For those reasons the ancillary appeal must fail. I have considered apportioning the costs between the two appeals but on reflection that is best left to the discretion of the Taxing Master. For the guidance of the Taxing Master I record that the time that was taken...