National Director of Public Prosecutions v Rautenbach and Others

• Jurisdiction: South Africa
• Citation: 2005 (4) SA 603 (SCA)

National Director of Public Prosecutions v Rautenbach and Others
2005 (4) SA 603 (SCA)

2005 (4) SA p603

Citation	2005 (4) SA 603 (SCA)
Case No	146/2003
Court	Supreme Court of Appeal
Judge	Mpati DP, Navsa JA, Nugent JA, Erasmus AJA and Ponnan AJA
Heard	August 19, 2004
Judgment	November 22, 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.

Flynote : Sleutelwoorde H

Criminal procedure — Appeal — Effect of — Whether provisional order revived pending appeal against discharge of order on return day — When appeal I sought to be brought against discharge of provisional order there is nothing to revive for it is as if no order were made in first place — Prevention of Organised Crime Act 121 of 1998 contemplates that restraint order is only provisional until it is confirmed on return day and in that respect it is no different to order made in ordinary civil proceedings. J

2005 (4) SA p604

Criminal procedure — Search and seizure — Restraint order in terms of Prevention of A Organised Crime Act 121 of 1998 — Application for — Consideration of — When considering application for restraint order, only required that it must appear to Court on reasonable grounds that there might be conviction and confiscation order — While Court must be apprised of at least nature and tenor of available evidence, and cannot rely merely upon National Director of Public Prosecutions' opinion, it is nevertheless not called upon to decide upon veracity of B evidence — It need ask only whether there is evidence that might reasonably support conviction and consequent confiscation order and whether that evidence might reasonably be believed — Clearly that will not be so where evidence relied upon is manifestly false or unreliable and to that extent it C requires evaluation — But Court not required to determine whether evidence probably true — Once criteria laid down in Act met, and Court is properly seized of its discretion, it is not open to Court to then frustrate those criteria when it purports to exercise its discretion.

Criminal procedure — Search and seizure — Confiscation order in terms of Prevention of D Organised Crime Act 121 of 1998 — Offences committed before commencement of Act — Court that convicts person of offence committed after Act took effect, and that finds that she or he benefited from offence or from any criminal activity found to be sufficiently related to offence, may make order against that person for payment to State of any amount it considers appropriate — Such order is referred to in Act as E 'confiscation order' but name might be misleading — Such order is directed at confiscating benefit that accrued to offender whether or not offender still in possession of particular proceeds — Once it is shown that material benefit accrued, offender may be ordered to pay to State monetary equivalent of that benefit even if that means that it must be paid from assets that were legitimately acquired. F

Criminal procedure — Search and seizure — Restraint order in terms of Prevention of Organised Crime Act 121 of 1998 — Application for — Requirements — Act not requiring as prerequisite to making of restraint order that amount in which anticipated confiscation order might be made must be capable of being ascertained, nor does it require that value of property placed under G restraint shouldn't exceed amount of anticipated confiscation order — Where there is good reason to believe that value of property sought to be placed under restraint materially exceeds amount in which anticipated confiscation order might be granted then clearly Court properly exercising its discretion will limit scope of restraint, if it grants an order at all, for otherwise apparent absence H of appropriate connection between interference with property rights and purpose that is sought to be achieved, will render interference arbitrary and in conflict with Bill of Rights.

Headnote : Kopnota

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 I having heard the other side, which is why a litigant who secures such an order is not better positioned when the order is reconsidered on the return day. 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. The reason for permitting restraint orders to be sought ex parte is not to ease the burden J

2005 (4) SA p605

upon the National Director of Public Prosecutions by ensuring that she or he can obtain such orders without opposition: It A is to ensure that the property concerned is not disposed of or concealed in anticipation of such proceedings. The Prevention of Organised Crime Act 121 of 1998 contemplates that such an order is only provisional until it is confirmed on the return day and in that respect it is no different to an order made in ordinary civil proceedings. If that means that property will not be under restraint where a Court B erroneously refuses to make such an order (either provisionally at the outset or finally on the return day), that is the inevitable consequence of insisting upon an order of a Court before property is placed under restraint. (Paragraphs [12] and [13] at 610E/F - 611B.)

When considering an application for a restraint order, it is required only that it must appear to the Court on reasonable grounds that there might be a conviction and a confiscation order. While the Court, in C order to make that assessment, must be apprised of at least the nature and tenor of the available evidence, and cannot rely merely upon the National Director of Public Prosecutions' opinion, it is nevertheless not called upon to decide upon the veracity of the evidence. It need ask only whether there is evidence that might reasonably support a conviction and a consequent confiscation order (even if all that D evidence has not been placed before it) and whether that evidence might reasonably be believed. Clearly that will not be so where the evidence that is sought to be relied upon is manifestly false or unreliable and to that extent it requires evaluation, but it could not have been intended that a Court in such proceedings is required to determine whether the evidence is probably true. Once the criteria laid down in the Act have been met, and the Court is properly seized of its E discretion, it is not open to the Court to then frustrate those criteria when it purports to exercise its discretion. (Paragraph [27] at 614C/D - G.)

A court that convicts a person of an offence that was committed after the Act took effect, and that finds that she or he has benefited from the offence or from any criminal activity that is found to be sufficiently related to the offence, may make an order against that F person for the payment to the State of any amount it considers appropriate. Such an order is referred to in the Act as a 'confiscation order' but the name might be misleading. Such an order is directed at confiscating the benefit that accrued to the offender whether or not the offender is still in possession of the particular proceeds. Once it is shown that a material benefit accrued, the offender may be ordered to pay to the State the monetary equivalent of that benefit even if that means that it must be paid from assets that G were legitimately acquired. (Paragraph [52] at 620C - E.)

(Per Nugent JA, Navsa JA and Ponnan AJA concurring; Mpati AP and Erasmus AJA dissenting): The Act does not require as a prerequisite to the making of a restraint order that the amount in which the anticipated confiscation order might be made must be capable of being ascertained, nor does it require that the value of property that is placed under restraint should not exceed the amount of the anticipated confiscation order. Where there is good reason to believe H that the value of the property that is sought to be placed under restraint materially exceeds the amount in which an anticipated confiscation order might be granted, then clearly a Court properly exercising its discretion will limit the scope of the restraint (if it I grants an order at all) for otherwise the apparent absence of an appropriate connection between the interference with property rights and the purpose that is sought to be achieved - the absence of an appropriate relationship between means and ends, between the sacrifice the individual is asked to make and the public purpose that it is intended to serve - will render the J

2005 (4) SA p606

interference arbitrary and in conflict with the Bill of Rights. (Paragraph [56] at 621B/C - E.) A

Where it appeared from the evidence before the Court that there were reasonable grounds for believing that the first respondent may be convicted of an offence referred to in the Act and that any confiscation order that could be made consequent thereto would not be less than the value of property which the appellant sought to place under restraint, the Court on appeal set aside a decision of a High B Court to discharge a provisional restraint order and confirmed the provisional order. The Court, however, confirmed the decision of the High Court, which held that the provisional order was not revived after the noting of the appeal pending the hearing thereof.

Cases Considered

Annotations C

Reported cases

Chrome Circuit Audiotronics (Pty) Ltd v Recoton European Holdings Inc and Another 2000 (2) SA 188 (W): applied

Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Others 2001 (2) SA 872 (SCA): referred to D

Du Randt v Du Randt 1992 (3) SA 281 (E): referred to

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