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[2021] ZAWCHC 121
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National Director of Public Prosecutions v Booysen and Others (6171/2021) [2021] ZAWCHC 121 (17 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 6171/2021
Before: The Hon. Mr Justice Binns-Ward
Hearing: 9 June 2021
Judgment: 17 June 2021
In the
matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
JEROME
BOOYSEN
First Defendant
AND
FIVE
OTHERS
Second
to Sixth Defendants
TINA
ADELE BOOYSEN
First Respondent
AND
THREE
OTHERS
Second to
Fourth Respondents
JUDGMENT
(Delivered by email to the parties’ legal representatives
and by release to SAFLII.
The judgment shall be deemed to have been handed down at 10h00 on
17 June 2021.)
BINNS-WARD J:
[1]
On 3 May 2021, the National Director of Public
Prosecutions (‘the NDPP’) obtained a restraint order in
terms of s 26
of the Prevention of Organised Crime Act 121 of 1998
(‘POCA’) against a number of persons, including the first
defendant,
[1]
Mr Jerome Booysen. The order was granted provisionally by
Steyn J, before whom an application for the order had been
brought
ex parte
,
as contemplated in s 26(1). It was a so-called ‘uncapped
order’ because it prohibited the defendants from
dealing with
any of their property, as distinct from one relating only to
specified items of property.
[2]
It bears mention that the first defendant is married in community of
property to the first respondent, and that consequently
the order
affects their common property. It is of course open to the
first respondent, independently of her husband, to apply
for the
amelioration of the effect of the order if it bears unduly harshly on
her.
[2]
This judgment concerns Mr Booysen’s
application, brought as a matter of urgency in terms of s 26(3)(c)
of POCA,
[3]
for the discharge or variation of the order insofar as it affects
him. The application in essence requires the court to
reconsider the order granted provisionally in the first defendant’s
absence. The NDPP is no better positioned
when the order
is reconsidered on the return day than she was when the application
for a restraint order was moved initially (
Pretoria Portland
Cement Co Ltd and Another v Competition Commission
and Others
2003 (2) SA 385
(SCA) at para 45-46 and
National Director of
Public Prosecutions v Rautenbach and Another
[2004] ZASCA 102
(22
November 2004);
[2005] 1 All SA 412
(SCA) at para 12-13). That
is what distinguishes the current proceedings from an application for
rescission or variation
brought in terms of s 26(10).
[4]
I accordingly invited counsel for the NDPP to address the court first
in support of the confirmation of the provisionally
made order.
[3]
POCA is directed at combatting organised
crime, money laundering and criminal gang activity. The
preamble to the Act records
that ‘
it
is usually very difficult to prove the direct involvement of
organised crime leaders in particular cases, because they do not
perform the actual criminal activities themselves
’.
The objects of the legislation therefore include the
criminalisation of ‘
the management
of, and related conduct in connection with enterprises which are
involved in a pattern of racketeering activity
’.
‘
Enterprise
’
is very widely defined, and includes ‘
any
individual
’ and any ‘
group
of individuals associated in fact
’.
[5]
‘
Pattern of racketeering activity
’
is defined to mean ‘
the planned,
ongoing, continuous or repeated participation in or involvement in
any offence referred to in Schedule 1 ...
’.
[6]
The offences referred to in s 13 of Drugs and Drug Trafficking
Act are included in the types of offences listed in Schedule
1 to
POCA. The restraint and confiscation order provisions in
POCA are there in recognition of the need ‘
to
provide for a civil remedy of preservation and seizure, and
forfeiture of property which is derived from unlawful activities
or
is concerned in the commission or suspected commission of an
offence
’.
[7]
[4]
The court may grant a restraint order when it is
satisfied that the person who is to be subject to it is to be charged
with an offence
and there are reasonable grounds for believing that a
confiscation order may be made against such person (s 25 of
POCA).
A confiscation order may be made only after a person has
been convicted of having committed a criminal offence. It
follows
that a court that is asked to make a restraint order must
also be persuaded that there is a realistic prospect of the defendant
being convicted on the charge(s) he faces or is to face.
[5]
In terms of s 18 of POCA, a court convicting
a person of an offence may, on the application of the prosecutor,
enquire into
any benefit the defendant may have derived from that
offence, any other offence of which the defendant has been convicted
at the
same trial and any criminal activity which the court finds to
be sufficiently related to those offences. The purpose of the
confiscation would be to deprive the defendant of any benefits which
may have been derived by him or her from the offences upon
which he
or she might be convicted or any other criminal activity which the
trial court might find to be sufficiently related to
those
offences.
[8]
The statute casts the confiscation net widely.
[6]
The purpose of a restraint order is to preserve
property pending the
completion of the contemplated criminal proceedings against a
defendant so that it will be available to be
realised in satisfaction
of any confiscation order that might be made.
[9]
Section 18(2)(a) provides that the amount which a
court may order the defendant to pay in terms of a confiscation order
shall not
exceed the value of the defendant’s proceeds of the
offences or related criminal activities as determined by the court.
[7]
The proceedings are civil proceedings, and
any question of fact in the application proceedings falls to be
decided on a balance
of probabilities (s 13 of POCA).
[8]
In
Rautenbach
supra, Nugent JA summarised the approach to be adopted in the
adjudication of applications for restraint orders under Chapter 5
of
POCA as follows: ‘
It is plain from
the language of the Act that the court is not required to satisfy
itself that the defendant is probably guilty
of an offence, and that
he or she has probably benefited from the offence or from other
unlawful activity. What is required is
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 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 appellant’s
opinion (
National Director of
Public Prosecutions v Basson
2002 (1) SA 419
(SCA) para 19) 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 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. Moreover, once the criteria
laid down in the Act have been met, and the court is properly seized
of its discretion, it is not open to the court to then frustrate
those criteria when it purports to exercise its discretion (cf
Kyriacou
,
[
[10]
]
footnote 1, paras 9 and 10)
.’
[9]
In their joint concurring judgment in
Rautenbach
,
Navsa JA and Ponnan AJA emphasised that, whilst - differently from
the position with a confiscation order - there is no express
limitation on the ambit or extent of a restraint order, ‘
it
would be offensive to justice if the effect of a restraint order was
disproportionate to the contemplated future conviction and
confiscation order
’.
[11]
It follows that a court exercising its discretion to make a restraint
order must have regard to the proportionality between
the extent of
the restraint and that of the possible confiscation order the
satisfaction of which the restraint order is directed
at securing.
It is accepted, however, that an empirical correspondence in values
is not required, nor, indeed, practically
achievable in most cases.
[10]
The concurring judgment in
Rautenbach
acknowledged, with
reference to the observations of Heher J in
National Director
of Public Prosecutions v Phillips and Others
2002 (4) SA 60
(W)
at 78, that, realistically, it will often not be possible at the
restraint stage for the NDPP to predict or place before the
court
more than a limited portion of the material that is likely to
influence the court faced with the confiscation application.
It
might also be difficult at the restraint stage for the NDPP to be
able to identify the ‘
related criminal activities
’
referred to in s 18(1)(c) of POCA, which can have a bearing on
the determination of the extent of a confiscation order.
The
appeal court has indicated that a court seized of an application for
a restraint order should take these difficulties into
account in
making its decision. The objects of the legislation, and the
place of restraint and confiscation orders in the
statutory scheme,
must be kept in mind. A court should not approach an
application for a restraint order in a way that thwarts
or undermines
those objects.
[11]
I refer to these considerations in some detail because it seems
to me
that the criticism levelled by the first defendant’s counsel at
the nature and quality of the evidence adduced by the
NDPP in support
of the prospects of a conviction the first defendant on the charges
faced by him set the bar too high. An
application for a
restraint order is not a preview of or dress rehearsal for the
criminal trial. This court does not have
to be satisfied that
the first defendant will probably be convicted, only that there is
apparently cogent evidence upon which he
might be convicted.
The place for testing such evidence will be in the criminal trial,
not in these proceedings. At
this stage, it is only the alleged
existence of the evidence and its apparent cogency that has to be
evaluated.
[12]
The learned judges nevertheless took care in the
concurring judgment in
Rautenbach
to stress that their acknowledgement of the inherent difficulties
confronting the NDPP in the formulation of applications for restraint
orders ‘
should
not
be construed as an invitation to laxity in the presentation of an
application for a provisional restraint order in terms of
s 26
of the Act
’. They proceeded ‘
Every effort
should be made to place sufficient information before the court to
enable it to properly engage in the judicial function
envisaged in
that section. Courts should be vigilant to ensure that the statutory
provisions in question are not used
in terrorem
.
On the other hand to insist at the provisional stage on a precise
correlation between the value of property restrained and the
value of
the alleged proceeds of criminal activity would be to render a vital
part of the scheme of the Act unworkable
’.
[12]
[13]
Mr Booysen has been or is to be indicted on numerous charges
including
managing an enterprise conducted through a pattern of
racketeering activity in contravention of s 2(1)(f) of POCA,
manufacturing
scheduled substances in contravention of the
Drugs and
Drug Trafficking Act 140 of 1992
, dealing in such substances, and
conspiracy to possess and deal in prohibited undesirable
dependence-producing substances.
A copy of the indictment was
annexed to the principal founding affidavit.
[14]
It appears from the information set out in
the supporting affidavits that Mr Booysen is the owner of numerous
immovable properties.
Eighteen properties are individually
identified in the papers as registered in his name. A senior
police officer, Lieutenant-Colonel
Barkhuizen, testified that,
consequent upon a report received from an informant that Mr Booysen
was engaged in drug dealing from
a property in the northern suburbs,
surveillance was maintained over certain properties registered in his
name. Subsequent
police raids found considerable quantities of
drug manufacturing material at three properties owned by Mr Booysen.
The nature
of the material that was found at these addresses was
indicative of the use of the properties for the manufacture and
distribution
of illegal narcotics on a commercial scale. The
first defendant claims that he had no knowledge of the use of his
properties
for unlawful purposes. His evidence was that he had
engaged the second defendant, one Kenneth Hansen, to manage the
properties,
which were used to generate a rental income.
[15]
The NDPP has indicated that use will also
be made in support of the prosecution of Mr Booysen of
transcripts of numerous authorised
telephone intercepts. An
annexure to the supporting affidavit of Captain Rossouw of the
Directorate of Priority Crimes purports
to provide a short precis of
the content of each of more than 400 intercepted telephone
conversations that took place between various
persons, including some
of the defendants, over a period of more than two years between
September 2015 and November 2017.
For the purposes of the
current application the NDPP focussed attention on the incriminatory
nature of the content of the telephone
conversations bearing on an
alleged transaction involving the sale of illicit drugs that
allegedly took place at the Zevenwacht
Mall in Kuils River on 3
November 2016. The evidence suggests that the second defendant
sold illicit drugs in the transaction
at a consideration of R95 000
in cash.
[16]
The transaction was effected at a time when
the defendants’ activities were under close police
surveillance. The second
defendant was arrested whilst driving
away from the Zevenwacht Mall, and the R95 000 in cash was found
on his person.
The first defendant’s counsel pointed out
that the telephone intercept summaries relied on by the NDPP in the
founding affidavit
to inculpate the first defendant did not bear out
the averments made in the affidavit concerning them. I agree.
It
was clear, however, that the NDPP relied on the entire summary,
and not just the items in the summary of intercepts specifically
referred to.
[17]
It is evident, if one has broader regard to
the relevant summaries, that there were apparently communications
between the first
and second defendants concerning what the second
defendant should give as his explanation for having such a large sum
in cash on
his person. The second defendant telephoned the
first defendant after his arrest to inform the latter that he had
been taken
into custody and apparently to arrange for the first
defendant to take pre-emptive measures to prevent incriminating
material being
discovered in any search by the police while the
second defendant was in custody. Furthermore, the summary
suggests that
the intercepted conversations indicated that the first
defendant was aware ahead of the time that the second defendant was
to be
at the Mall at the appointed time and had an interest in what
the latter was to be doing there. Captain Rossouw’s
summary
indicates that in a telephone discussion with an unidentified
third person on 9 November 2016 concerning how the police could have
obtained the information to effect his arrest in connection with the
Zevenwacht Mall transaction, the second defendant stated that
it was
only he and the first defendant (apparently referred to as ‘Jonas’)
‘
who knew’
.
[18]
It also appears from the summary of
telephone intercepts that the first defendant showed an interest in
obtaining the release of
the money impounded by the police.
Item 230 in the summary relates to a conversation between the first
and second defendants
on the morning of 9 November 2016. It
reads as follows: ‘
Kenneth Hansen
phoned Jerome Booysen. Jerome tells Kenneth to try and get that
money back (seized R95 000). Kenneth
say
(sic)
Jerome must make statement that he
borrowed the money. Jerome says he will state he borrowed
Kenneth 70 000. Jerome
then says Kenneth can say the rest
is money he saved.
’ (The
context suggests that the word ‘borrow’ should be
construed as ‘lend’ or ‘lent’.)
[19]
The first defendant’s counsel
complained about the hearsay nature of the evidence concerning the
telephone intercepts, whilst
acknowledging that regard might validly
be had to such evidence in applications in terms of
s 26.
The defendant claimed that the evidence was ‘
difficult
to deal with
’ because it amounted
‘
to
opinion
evidence, founded on edited and translated versions of hearsay
evidence. In particular it is apparent that the evidence
of telephone
recordings are not transcripts, but translated, and edited versions
of telephone calls
’
.
[20]
In my view, there was nothing objectionable
about the NDPP’s use of hearsay evidence. The evidence
falls to be evaluated
in the context of the case assessed as a whole,
and the weight to be attached to it determined accordingly. The
passages
in
Rautenbach
to which reference was made earlier in this judgment confirm that it
was not incumbent on the NDPP in the current proceedings to
adduce
the evidence that will be led at the criminal trial or to try to
prove the charges. It is sufficient for her to indicate
what
evidence is available for that purpose and to give this court
sufficient insight into its nature to be able to evaluate whether
there is a reasonable possibility that the defendant might be
convicted at trial.
[21]
There was in any event nothing to prevent
the first defendant, if he wished, obtaining the transcripts or
recordings referred to
by Captain Rossouw and placing them before the
court if he believed that they would show up a fatal weakness in the
state’s
case against him or indicate that the prospect of the
prosecution succeeding was illusory. These being civil
proceedings,
the mechanism afforded by Uniform
Rule 35(12)
was
available to him.
[22]
In my judgment, the evidence identified by
the NDPP in her supporting papers is of a nature that might support
the first defendant’s
conviction on at least some of the
charges that he faces in the criminal proceedings. The
circumstances also support the
likelihood that if he is convicted, a
confiscation order may be granted after due enquiry in terms of
s 18
of POCA.
[23]
The question then is whether the uncapped
order provisionally granted by Steyn J should be confirmed, or varied
so as make it relate
only to specified property. The first
defendant sought a variation in the event of my concluding, as I have
done, that a
case for some form of restraint order has been made
out. He made a contingent tender to submit an immovable
property in Wellington
that is owned by a company that he controls
(Albatross Isle Trade (Pty) Ltd, cited as the second respondent in
these proceedings)
to a restraint order and put in from the bar
(without objection) an appraised valuation of the property at
R8,6 million, although
it is evident from the appraisal that the
building on the property, which is currently in disuse, would require
significant conversion
work in order to be realised at the appraisal
price. (The municipal valuation of the property is
R2,915 million.)
It seems to me that the tender should
more appropriately have been formulated as one of the first
defendant’s shares in the
company and the registration of a
caveat against its immovable property, but in view of the conclusion
I have reached on the outcome
of the application that is by the by.
[24]
The evidence suggests that the first
defendant might be shown at the criminal trial to have participated
or been involved in dealings
involving narcotics with an estimated
value of between about R7,8 million and R10 million. It is
evident that the tender
was formulated with the estimated value of
the identified drug transactions in mind on a basis that the first
defendant believes
would afford an appropriately proportionate
relationship between the value of property restrained and the likely
amount of any
confiscation order that might be made.
[25]
In my judgment the first defendant’s
tender is based on too narrow a view of the effect of the evidence.
The fact that
three of his properties were found to be places at
which illicit drugs were manufactured on a commercial scale gives an
indication
that the dealings in which the first defendant may have
been involved, and from which he might have benefitted, very
conceivably
extended well beyond the transactions identified by the
applicant. Whether this was in fact the case, and if so, the
extent
of the benefit he may have derived would be established in the
enquiry that the court seized of an enquiry in terms of
s 18
of
POCA will undertake if the first defendant is convicted and the
applicant then applies for a confiscation order.
[26]
The defendant may in such enquiry, which
can potentially be far-ranging, be directed to submit a written
statement as provided for
in s 21(3) of the Act, wherein he
could be required to set forth with substantiating particularity how
he acquired the numerous
immovable properties registered in his name
or those of any corporate entity controlled by him. It is
significant to bear
in mind that the evidential presumptions in s 22
of POCA apply against a defendant at an enquiry in terms of s 18.
[13]
[27]
In the current matter, the first defendant
has testified that his property holdings were initially amassed from
his earnings as
a municipal building inspector for 21 years and from
the investment of his wife’s pension pay-out of R400 000
after
a period more than 20 years’ employment by Yellow Pages.
The first defendant said that he retired in 2006 and had commenced
buying and selling immovable properties from around 2003 ‘
borrowing
against
[his] (undisclosed)
pension
interest
’. I think that the
court is entitled to take judicial notice that the income of a
building inspector is relatively
modest. The first defendant
said that his experience empowered him to acquire properties on
auction and renovate them for
the purpose of profitable resale or
generating a rental income. He implied (without providing any
particularity) that these
sources of capital growth and supplemental
income had funded further acquisitions. It appears from the Deeds
Registry information
attached to the first defendant’s
answering affidavit
[14]
that in the period since the beginning of 2015 he has acquired
immovable property that is still registered in his name for a total
purchase consideration of more than R5,5 million. The
first defendant has also accumulated a collection of nine motor
vehicles of assorted vintage and value estimated to be worth nearly
R1,7 million.
[28]
The first defendant has also pointed out
that he has been subjected to a tax audit by the South African
Revenue Service (SARS) that
covered the period between the 2003 and
2018 tax years (both included). He complains that the curator
appointed to the property
restrained in terms of the order made by
Steyn J is an employee of PriceWaterhouseCoopers, whom he says
was involved under
the auspices of SARS in the investigations
associated with the tax audit. He claims that this gives rise
to a conflict of
interest and asserts that the failure by the
applicant or the curator to disclose it amounted to a breach of the
duty of utmost
good faith owed by anybody seeking relief against a
respondent in an
ex parte
application. He also claimed that it was inconceivable that the
deponents to the supporting affidavits in the current proceedings
could have been unaware of his previous employment or the tax audit
and concluded ‘(t)
heir failure to
disclose the fact of the audit, and the obviously legitimate origins
of my assets is indicative of their coyness
in making full
disclosure
’.
[29]
The local head of the Asset Forfeiture Unit
testified in reply that the applicant had been unaware of PWC’s
involvement in
a tax audit of the first defendant’s income.
I have no reason to doubt that. The first defendant moreover
did
not disclose any particulars of the tax audit. The mere
fact that a person has been subject to a tax audit does not tell one
anything, not even that the person has been found to have been tax
compliant. It also does not warrant that any income of
the
taxpayer identified or verified in the course of the audit had been
legitimately generated. The extent to which SARS
is permitted
to divulge taxpayer information is strictly limited in terms of
Chapter 6 of the
Tax Administration Act 28 of 2011
. It does not
appear from the indictment that Mr Booysen faces any tax-related
charges, and it seems to me that it would only
be in relation to such
charges, if they were preferred, that SARS would be permitted to
disclose the first defendant’s taxpayer
information to the
NDPP.
[30]
By contrast, it is open to a taxpayer to
obtain from SARS information relating to the taxpayer’s tax
affairs or information
submitted to SARS by the taxpayer or by a
person on the taxpayer’s behalf.
[15]
Accordingly, if the first defendant sought, as he appears to have
done by his opaque reference to the tax audit, to establish
that his
tax records bore out his claim that his property acquisitions were
accumulated using legitimately derived income and borrowings,
he
could have done so by producing the records. It is significant
that he failed to do so. I say that because it is
obvious in
the context of the allegations in the supporting papers that the
funding of the first defendant’s accumulation
of assets called
out for more detailed explanation if he were to persuade this court
that it was legitimate, and thereby show that
the NDPP’s
prospect of obtaining a confiscation order was doubtful.
[31]
There may not have been an onus on the
first defendant, but in undertaking the required exercise of
postulating, as best it is able,
the likely extent of a possible
confiscation order, this court cannot overlook the effect of the
presumptions in
s 22
of POCA mentioned above. Whilst those
presumptions are not applicable in the current proceedings, the
predictive character
of the enquiry entailed in the restraint order
proceedings means that their likely effect cannot be ignored, for it
bears on the
extent of the security to be provided in terms of the
restraint order if the object of
s 26
is to be adequately
sustained. The scantier the information provided by a defendant
opposing a restraint order, the more
probable it is, absent an
acceptable explanation for its meagreness, that the presumptions will
operate against that defendant
at any eventual enquiry in terms of
s 18.
[32]
Nothing that the first defendant has said
about the involvement of PWC in his tax audit persuades me that the
appointed curator
has a conflict of interest. I am able to take
judicial notice that PWC is one of the world’s most prominent
firms of
accountants and auditors. It is a large organisation.
It is not clear from the answering affidavit that the appointed
curator was personally involved in the first defendant’s tax
audit or even that he would have known about it. If he
was
involved, he would be subject to the same confidentiality obligations
that SARS is. The terms of the restraint order
require the
first defendant to make disclosure of his assets to the curator.
He claims to have been complying with the order
in this respect.
I fail to see the alleged conflict of interest.
[33]
As far as I can discern from the papers,
the curator has not yet reported on the market valuation of the first
defendant’s
immovable properties. The terms of the
provisional order required him to have done so by 3 June 2021.
The NDPP has,
however, listed in the supporting papers (in the
affidavit of Detective Warrant Officer Pieter Louw) the values of 18
immovable
properties registered in the first defendant’s name
and that registered in the name of Albatross Isle Trade (Pty) Ltd.
As mentioned above,
[16]
the first defendant has listed other properties that belong to him.
He contends that the information provided by DW/O Louw
understates
the market value of the properties concerned, but points out that the
provided information demonstrates that the value
of his equity in the
properties amounts to over R21,35 million.
[34]
Having had careful regard to the evidence,
assessed in accordance with the approach endorsed by the appeal court
in
Rautenbach
supra, I have concluded, notwithstanding the diffidence I exhibited
during the argument of the case about the proportionality of
the
order, that the balance of considerations weighs in favour of
confirming the provisional order.
[35]
The following order is made:
1.
The provisional order incorporated in
paragraph 1 of the order made by the Honourable Mrs Justice
Steyn in this matter on 3
May 2021 is hereby confirmed pending the
outcome of the trial of the first defendant on the relevant charges
and further pending
the outcome of any proceedings that may follow
upon his conviction for a confiscation order in terms of
s 18
of
the
Prevention of Organised Crime Act 121 of 1998
.
2.
The first defendant shall pay the
applicant’s costs of suit occasioned by his opposition to the
application.
3.
The rule
nisi
issued in terms of paragraph 2 of the forementioned order of 3 May
2021 remains returnable on 3 August 2021 in respect of the second
to
sixth defendants.
A.G. BINNS-WARD
Judge of the High Court
[1]
The term ‘
defendant
’
is used in the sense defined in
s 12(1)
of POCA.
[2]
Provision is expressly made for such orders in
s 26(2)(b)
and (c) of POCA.
[3]
Section 26(3)(c)
provides that ‘
Upon
application by the defendant, the court may anticipate the return
day [of a rule nisi issued when a provisional restraint
order is
made] for the purpose of discharging the provisional restraint order
if 24 hours’ notice of such application has
been given to the
applicant ...
’.
[4]
Section 26(10)
provides: ‘
A
High Court which made a restraint order –
(a)
may on application by a person
affected by that order vary or rescind the restraint order or an
order authorizing the seizure
of the property concerned or other
ancillary order if it is satisfied –
(i)
that the operation of the order
concerned will deprive the applicant of the means to provide for his
or her reasonable living
expenses and cause undue hardship for the
applicant; and
(ii)
that the hardship that the
applicant will suffer as a result of the order outweighs the risk
that the property concerned may be
destroyed, last, damaged,
concealed or transferred; and
(b)
show rescind the restraint order when
the proceedings against the defendant all concluded.
’
[5]
Section 1
of POCA.
[6]
Id.
[7]
Id.
[8]
Phillips and Others v National Director of
Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC) at para 10.
[9]
NDPP v Rautenbach
supra,
in para 24.
[10]
National Director of Public Prosecutions v Kyriacou
2004
(1) SA 379
(SCA).
[11]
In para 85-87.
[12]
Id, in para 87.
[13]
Section 22(3)
provides: ‘
For
the purposes of determining the value of a defendant’s
proceeds of unlawful activities in an enquiry under
section 18
(1) –
(a)
if the court finds that he or she
has benefited (sic) from an offence and that –
(i)
he or she held property at any time
at, or since, his or her conviction; or
(ii)
property was transferred to him or
her at any time since the beginning of a period of seven years
before the fixed date,
the court shall accept these facts as prima facie evidence that
the property was received by him or her at the earliest time at
which he or she held it, as an advantage, payment, service or reward
in connection with the offences or related criminal activities
referred to in
section 18(1)
;
(b)
if the court finds that he or she has
benefited (sic) from an offence and that expenditure had been
incurred by him or her since
the beginning of the period
contemplated in paragraph (a), the court shall accept these facts as
prima facie evidence that any
such expenditure was met out of the
advantages, payments, services or rewards, including any property
received by him or her
in connection with the offences or related
criminal activities referred to in
section 18(1)
committed by him or
her.
’
[14]
Annexure AA2 to the answering affidavit.
Properties 2, 3, 4, 5, 6, 9, 10, 11, 12 and 15. The immovable
properties
identified in the answering affidavit do not correspond
in certain respects with those identified in the supporting
affidavit
of Detective Warrant Officer Pieter Louw.
[15]
Section 73
of the
Tax Administration Act 28 of
2011
.
[16]
In note 14.