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[2011] ZAECPEHC 18
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Mansoor and Another v National Director of Public Prosecutions and Another (3494/2010) [2011] ZAECPEHC 18 (12 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE – PORT ELIZABETH) CASE NO.: 3494/2010
In the matter between:
FAHMIDA MANSOOR
…....................................................................
First
Applicant
KRITH SINGH
…............................................................................
Second
Applicant
And
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
….....................
First
Respondent
MR. JACQUES EYBERS N.O.
…..............................................
Second
Respondent
THE MASTER OF THE HIGH COURT /
EASTERN
CAPE HIGH COURT / PORT ELIZABETH
…...............................
Third
Respondent
JUDGMENT
BESHE J:
[1] The first applicant, an adult
female physiotherapist and the second applicant who is her practice
manager are charged in the
Port Elizabeth Special Crimes Court with
several counts of fraud alternatively theft.
[2] First respondent is the National
Director of Public Prosecutions, second respondent is a Director of
Advisory Services with
the firm Price Water House Coopers and
curator
bonis
having been appointed by the third respondent, who is the
Master of Eastern Cape High Court, pursuant to an order of court.
[3] In this application, the
applicants seek the release of their property which was restrained
pursuant to a Provisional Restraint
Order that was issued on the 10
th
of November 2009. In terms of that order the applicants were
prohibited from dealing with their realisable property as provided
for in sections 12 and 14 of the Prevention of Organised Crime Act
121 of 1998 (POCA).
[4] The Provisional Restraint Order
was however discharged on the merits by
Dambuza J
on the 6
th
of July 2010.
[5] The first respondent filed an
application for leave to appeal against
Dambuza J’s
ruling of the 6 July 2010. Upon request by the applicants, the second
respondent refused to release the restrained property pending
the
outcome of appeal procedures.
[6] The application for leave to
appeal was dismissed with costs on the 14
th
of September
2010.
[7] Once again the release of the
restrained property was refused on the basis that the State Attorney
acting for the respondents,
intended petitioning for leave to appeal.
It is common cause that leave to appeal to the Full Bench of the
Eastern Cape High Court
was granted in November 2010.
[8] This application which is for the
immediate release of first applicant’s property which was
attached pursuant to the Provisional
Restraint Order is premised on
the ground that the Provisional Restraint Order is no longer in place
following the discharge of
the rule that sustained it.
[9] The refusal by the respondents to
release the restrained property pending the outcome of firstly, the
application for leave
to appeal and later the petition to the
President of the Supreme Court of Appeal seems to have been motivated
by a misconception
that the noting of an appeal against
Dambuza
J’s
discharge of the provisional order had the effect of
suspending her ruling pending the decision of the appeal. The
respondents
also suggest that applicants were prepared to remain
subject to the restraint pending the finalisation of the appeal
procedure.
I however do not understand how the respondents may have
gained this impression when applicants have consistently sought the
release
of the restrained property.
[10] The first respondent concedes
that the position as set out in
Erasmus’ Commentary on
the Superior Court Practice B1-370 on Rule 49
reflects the
legal position; which is namely that: The noting of an appeal against
the refusal of a final order where interim interdictory
relief was
granted (but final relief refused) does not revive the interim order
unless the parties have specifically agreed to
the continued
existence of the interdict pending the appeal. See also
National
Director of Public Prosecutions v Rautenbach
2005 (4) SA 603
(SCA) at
610 C-G
.
[11] As indicated there does not seem
to be any basis for believing that the applicants agreed to the
continued existence of the
interdict.
[12] The first respondent now seeks,
by way of a counter-application an order that “
The
interim Restraint Order granted by the above honourable court on the
11
th
of December 2009 under case
number 3197/09 remain effective pending the determination of the
appeal against the entire judgment
and costs order in that matter
handed down by her Ladyship Dambuza J on the 6
th
of July 2010”
.
[13] The counter-application is based
on the same grounds and facts as was the case in the initial
application by the first respondent,
which resulted in the issuing of
the Provisional Restraint Order in question.
[14] It appears to be a rehashing of
the initial application by the first respondent which was considered
by
Dambuza J
and dismissed on the merits. In the penultimate
paragraph of her judgment
Dambuza J
states that: “
In
the end I am not satisfied that the applicant has made out a proper
case that there is evidence on which a court faced with an
application for confiscation would be reasonably persuaded to grant
the application”
.
[15] In
M V Snow Delta: Serva
Ship Ltd v Discount Tonnage Ltd
2000 (4) SA 746
SCA at 751 I-J and
752 A-B
Harms JA
commenting on two decisions had this
to say “
The essence of
these judgments was that Cobertt J had failed to have regard to the
common law rule as received by our courts that
an appeal suspends the
execution – or in the words of Rule 14 (II) the operation and
execution of an order.
(Cf
Reid and Another v Godart and Another
1938 AD 511
)
Unfortunately the criticism was based upon a misunderstanding of the
concept suspension of execution for instance, an order of
absolution
from the instance or dismissal of a claim or application is not
suspended pending an appeal, simply because there is
nothing that can
operate or upon which the execution can be levied. Where an interim
order is not confirmed, irrespective of the
wording used, the
application is effectively dismissed and there is likewise nothing
that can be suspended. An interim order has
no independent existence
but is conditional upon confirmation by the same court (albeit not
the same Judge) in the same proceedings
after hearing the other
side”
.
[16] In my view there is no order that
should be ordered to remain in place, and that the
counter-application should fail.
[17] I am not persuaded that there is
any good reason in law why the property of the applicants should not
be released.
[18] Accordingly the following
order is made that:
(1) The second respondent be and is
hereby ordered to:
1.1 Return the original letters of
curatorship No MC 32/09 to the third respondent.
1.2 Uplift the attachment in the
first and second applicant’s property and to restore and or
return the property to the applicants.
(2) In the event the second
respondent fails to comply with paragraph 1.1 of this order within 2
days of service of this order on
the second respondent, the sheriff
of this court be and is hereby authorised to uplift the original
letters of curatorship No MC
32/09 from the second respondent and to
deliver the letters to the third respondent.
(3) The third respondent be and is
hereby ordered, immediately upon receipt of the letters of
curatorship No MC 32/09, to revoke
and cancel the letters.
(4) The counter-application is
dismissed.
(5) First respondent is ordered to
pay the costs of this application.
_____________
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For Applicant ADV: J E Howse
Instructed by KEERAN BHAGWAN ATTORNEYS
For Respondent ADV: H Van der Linde
Instructed by THE STATE ATTORNEY
Date Heard 10 December 2010
Date Reserved 10 December 2010
Date Delivered 12 May 2011