Restraint order

Section 26 allows the prosecution to make an ex parte application to the High Court for a restraint order on a person’s property. The purpose of the restraint order as explained in the case of NDPP v Mcasa⁵⁴³ is to preserve the property “so that any confiscation order (under Part 2 of Chapter 5) which may be granted can be effective”.⁵⁴⁴ Another purpose as noted by the High Court in NDPP v Moronyane and Others⁵⁴⁵ is to safeguard the property “from dissipation so as to yield the greatest possible amount in the event of a confiscation order being issued later”.⁵⁴⁶

The High Court can, however, only make the order when: (a) a criminal case has been instituted against the defendant; (b) either a confiscation order has been made against that defendant or it appears to the court that there are reasonable grounds for believing that a confiscation order would be made against the defendant; and (c) the proceedings against the defendant has not been concluded. In case no criminal case has been instituted, the High Court may only make the order when: (a) the court is satisfied that the person is to be charged with an offence; and (b) it appears to the court that there are reasonable grounds for believing that a confiscation order would be made against the defendant.⁵⁴⁷ Thus, the

541 Instead of the words “shall accept these facts as prima facie evidence…” the words “it shall be presumed in the absence of evidence to the contrary…” were used in the Proceeds of Crimes Act of 1996.

542 This was influenced by a number of judgments by the Courts in which the reverse onus burden was declared unconstitutional. For example in S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), the Constitutional Court declared unconstitutional section 21(1)(a)(I) of the Drugs and Drug Trafficking Act 140 of 1992, which provided that a person in possession of an amount of dagga exceeding 115 grams would be considered a dealer unless he could prove otherwise.

543 NDPP v Mcasa 2000 (1) SACR 263 (Tk).

544 NDPP v Mcasa 2000 (1) SACR 263 (Tk), para 8.

545 NDPP v Moronyane and Others [2005] ZANCHC 91.

546 NDPP v Moronyane and Others [2005] ZANCHC 91, para 12.

547 POCA, s 25.

restraint order under Chapter 5 can be made either after an accused has been convicted or before. In interpreting this provision, the Courts have added that in cases where the criminal proceedings are pending a court issuing a restraint order must also satisfy itself that there is reasonable ground that a criminal proceeding against the defendant would lead to the conviction of the defendant. As explained by the Supreme Court of Appeal in NDPP v Mcasa:

A reading of sections 18(1), 25(1) and 26(1) and (2) leads to the following conclusion: in a case like the present (i.e. where the respondents are still facing charges), there may be a restraint order only if reasonable grounds exist for the grant of a confiscation order which, in turn, may only be granted if there has been a conviction. Put differently, it is our view that a restraint order is competent only if reasonable grounds exist for a court to believe that the defendant concerned may be convicted of an offence.⁵⁴⁸

In order to make the assessment on whether the conditions for the order have been met, the Supreme Court of Appeal has noted in NDPP v Basson⁵⁴⁹ that the court “must be apprised of at least the nature and tenor of the available evidence, and cannot rely merely upon the [prosecution’s] opinion”.⁵⁵⁰ However, this does not mean that the court is called upon to decide upon the veracity of the evidence. As the Supreme Court of Appeal noted in NDPP v Rautenbach and Another:⁵⁵¹

It (the court) need ask only whether there is evidence that might reasonably support a conviction and a consequent confiscation order (even if all that 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.⁵⁵²

The Courts have also said that it is not required of the National Prosecutor to show that the assets which are subject to the restraint order had been derived from illegitimate sources in order to obtain a restraint order. As noted by the Supreme Court of Appeal in NDPP v Rautenbach “the fact that some assets were acquired before the offences were committed, and were not themselves acquired from the proceeds of unlawful activity” is “immaterial when determining whether a confiscation order might be granted.”⁵⁵³ The reason for this is

“because the idea (behind Chapter 5) is to reverse whatever benefit was derived from criminal activity to which no legal entitlement can appropriately be claimed”.⁵⁵⁴ In other words, the aim of the restraint order is to ensure that there is enough property to satisfy any confiscation order that might be made by a Court in the criminal case against the defendant.

548 NDPP v Mcasa 2000 (1) SACR 263 (Tk), para 42.

549 NDPP v Basson 2002 (1) SA 419 (SCA).

550 NDPP v Basson 2002 (1) SA 419 (SCA), para 19.

551 NDPP v Rautenbach and Another [2004] ZASCA 102.

552 NDPP v Rautenbach and Another [2004] ZASCA 102, para 27.

553 NDPP v Rautenbach and Another [2004] ZASCA 102, para 52.

554 NDPP v Mcasa 2000 (1) SACR 263 (Tk), 268 g-h.

It is also noteworthy that at the ex parte stage the court may only issue provisional restraint orders, which have immediate effect but simultaneously grant a “rule nisi”⁵⁵⁵ calling upon all interested parties to present a case for why the order should not be made final.⁵⁵⁶ The nature of these ex parte orders, as noted in MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd⁵⁵⁷ is that they are provisional in that they are “conditional upon confirmation by the same Court (albeit not the same Judge) in the same proceedings after having heard the other side”.⁵⁵⁸ When the interim restraint order comes for confirmation, the court is required to provide for reasonable living and legal expenses to the person whose property is subject to the restraint order if it is satisfied that he or she has disclosed under oath all his or her interests in property subject to a restraint order and that the person cannot meet the expenses concerned out of his or her unrestrained property.⁵⁵⁹ In addition, where the High Court has made a restraint order under s 25(1)(b) (where it is satisfied that a person is to be charged with an offence and that there are reasonable grounds for believing that a confiscation order may be made) the court is required to rescind the order if the person is not charged within a reasonable period.⁵⁶⁰

The effect of a restraint order, interim or final, on a person’s property is that the person cannot deal with the property in any way. Pursuant to the amendment introduced to section 26(8) by Prevention of Organised Crime Second Amendment Act 38 of 1999, the Court is now obligated when making a restraint order to simultaneously authorise seizure of all movable property “concerned” by a police official.⁵⁶¹ Section 27(1) also gives police officers the power to seize any realizable property if they have reasonable grounds to believe that such property will be so disposed of or removed.⁵⁶² The Supreme Court of Appeal in NDPP v Mcasa has held, with regard to section 27(1), that it is a stand-alone section and “does not flow from the authorisation of a police official by the court to seize property in terms of

555 On rule nisi in the South African context, see, for example, Erasmus Superior Court Practice (2002) 17 B1-52-3:

“The term ‘rule nisi’ is derived from English law and practice, and the rule may be defined as an order by a court issued at the instance of the applicant and calling upon another party to show cause before the court on a particular day why the relief applied for should not be granted. Our common law knew the temporary interdict and, as Van Zyl points out, a ‘curious mixture of our practice with the practice of England’ took place and the practice arose of asking the court for a rule returnable on a certain day, but in the meantime to operate as a temporary interdict.”

556 POCA, s 26(3).

557 MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd 2000 (4) 746 (SCA).

558 MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd 2000 (4) 746 (SCA), para 6.

559 POCA, s 26(6).

560 POCA, s 25(2).

561 POCA, s 26(8). Prior to the amendment the Court had discretion to make ancillary orders it considered appropriate for the proper, fair and effective execution of the order, including an order authorising the seizure of the property concerned by a police official”.

562 POCA, s 27(1).

section 26(8)”.⁵⁶³ The two subsections, however, provide that property seized in terms of each shall be dealt with in accordance with the directions of the court which made the relevant restraint order.⁵⁶⁴

A court which has made a restraint order may on application by a person affected by that order vary or rescind a restraint order or an order which authorizes the seizure of the property concerned or may make any other ancillary order provided it is satisfied that the operation of the order would: (1) deprive the applicant the means to provide for living expenses or cause undue hardship to the applicant; and (2) the hardship the applicant will suffer outweighs the risk that the property concerned may be destroyed, lost, damaged, concealed or transferred.⁵⁶⁵