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[2012] ZAECPEHC 60
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National Director of Public Prosecutions v West (Nee Ramasamy) (1992/2004) [2012] ZAECPEHC 60; 2013 (1) SACR 495 (ECP) (6 September 2012)
NOT REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
CASE NO. 1992/2004
In the matter
between
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
....................................................................
Applicant
and
PAVANIE
WEST (nee RAMASAMY)
..............................
Respondent/Defendant
JUDGMENT
HARTLE, J:
The applicant
applies for a “
realisation
order
”
pursuant
to the provisions of section 30 (2) (b) of the Prevention of
Organised Crime Act, No. 121 of 1998 (“
POCA
”
)
in respect of certain realisable property owned by the defendant
1
which is the
subject matter of a restraint order of this court against her made
final on 24 August 2004. The order prayed for
is set out in the
following terms:
“
1.
That in terms of section 30(2)(b) of POCA, the
curator
bonis
be authorised to realise the realisable property in such a manner as
will in his discretion, yield the highest market-related return
in
the most cost effective way;
2. That in terms of
section 31(1) of POCA, the
curator bonis
be authorised to
apply the proceeds of such realisation as follows:
To pay any
outstanding monies in terms of existing obligations on Erf 588,
Lorraine having regard to the bondholder ABSA’S
right and
title over such property;
To deduct the fees
and expenses (costs) of the
curator bonis
calculated in
accordance with section 28(3)(c) and Regulation 2 of POCA as well
as his costs incurred after the date of the
Order, as approved by
the Master;
To calculate the
amounts due to Hans Hermann Heiman in terms of the confiscation
order dated 27 July 2010 and to pay him accordingly;
To pay the balance
of the Defendant.
3. That the
curator
bonis
file his final report on the Master as soon as possible,
but not later than 90 days of the Order and serve a copy on the
Applicant
and the Defendant indicating:
The manner in
which he conducted the administration and realisation of the
property since his second report dated 28 July 2010;
The manner in
which he complied with the terms of the Order
4. Costs in the
event of the matter being opposed.”
Erf 588, Lorraine,
is the only property which has remained under restraint in terms of
the original order, the appointed curator
having released the other
restrained assets at the defendant’s request after she was
discharged on 6 October 2006 in terms
of
section 174
of the
Criminal
Procedure Act, No. 51 of 1977
on several counts yielding an
aggregate benefit value of approximately R281 000.00.
The applicant seeks
the order supposedly as a natural sequel to the restraint order
being the culmination of a three stage process
pursuant to the
provisions of Chapter 5 of the POCA. It is - so he alleges, to give
effect to paragraph 1.4.16 thereof which
provides as follows:
“
In
terms of section 28(3)(c) of the Act the fees and,
ex
post facto
,
the expenses and disbursements of the curator
bonis
reasonably
incurred by him in the execution of his duties which have not been
paid out of the estate in terms of paragraph 1.4.4
supra
,
shall be paid
from
the proceeds of any confiscation order that may be made against the
Defendant, failing which by the State
;
provided that the curator
bonis
is
entitled to recover interest not exceeding the prime lending rate of
the major financial institutions on such expenses and disbursements.
”
(Emphasis
added)
The expenses and
disbursements contemplated by paragraph 1.4.4 of the restraint order
relate to those incurred in managing and
maintaining the restrained
assets which would normally be carried by the estate out of
restrained assets. Provision is made for
these expenses to be
defrayed from the proceeds of the sale of the restrained assets with
a view to the curator properly administering
the assets under his
control in the event that no liquid assets are available towards
this end. These expenses are however not
in issue here, the
applicant’s concern being with the professional fees of the
curator.
The provisions of
section 28 (3) (c) of POCA pursuant to which paragraph 1.4.16 of the
restraint order was ostensibly made determines
that the high court
(which ordered the person against whom a restraint order was made to
surrender any property to the appointed
curator
bonis
)
“
may make such order relating to the
fees and expenditure of the curator bonis as it deems fit, including
an order for the payment
of the fees of the curator bonis-
from the
confiscated proceeds if a confiscation order is made; or
by the State
if no confiscation order is made.
”
The defendant was
ultimately convicted on 8 May 2008 in the commercial crimes court,
Port Elizabeth, of theft from her erstwhile
employer, Guage Tools
and Press CC, involving an amount of R216 424,29.
She appealed
against her conviction and sentence - partially succeeding, the
upshot being that her conviction of theft or attempted
theft still
in a sum of R157 651,92 was confirmed.
At the conclusion
of the appeal the applicant sought a confiscation order against the
defendant which was finalised on 27 July
2010.
The terms of the
order are repeated below:
“
1.
The Defendant has, in terms of section 18(1) of the Prevention of
Organised Crime Act 121 of 1998 (POCA) benefited from the offences
she has been convicted of.
In terms of section
19(1) of POCA the value of the Defendant’s proceeds of
unlawful activities is R66 566.92 being the capital
amount still
outstanding.
In terms of section
18(2) (a) of POCA, the appropriate amount for a confiscation order
against the Defendant is R133 133.84 which
is made up of the amount
…..
2
A Confiscation
Order is accordingly made in the amount of R133 133.84.
The Defendant must
pay the confiscation order to Pricewaterhouse Coopers, Port
Elizabeth:
Within 14 days of
the expiry of the period allowed for an appeal or review of this
order
If an appeal or
review is lodged, within 14 days of disposal or abandonment
thereof.
6. Should the
Defendant fail to satisfy this order interest from the 15
th
day at 15.5% per annum on the amount of this order shall be
calculated and capitalised daily in advance on the first date of each
calender month, from the date of this order until the full amount
plus interest has been paid.”
Despite the terms
of restraint order concerning the source of the curator’s fees
for administering the restrained assets
surrendered to him, regional
magistrate
Cooney
in his reasoned judgment pursuant to the
confiscation enquiry answered the question whether costs for the
curator
bonis
should be included in the “
appropriate
amount
” to be paid to the state pursuant to the provisions
of section 18(1)(c) as follows:
“
Section
18(1) of Act 121 of 1998
3
empowers
a court who makes a confiscation order to “make any further
orders as it may deem fit to ensure the effectiveness
and fairness of
that order”.
It seems that where
a
curator
bonis
has
therefore had a role to play in managing the defendant’s assets
under restraint that an appropriate amount for a confiscation
order
should also include the curator’s disbursements.
The applicant has
however failed to show exactly which disbursements or expenses should
be considered by this court.
4
In the consequences
I am unwilling to include any curator’s costs in the amount of
this order.”
Both the applicant
and the defendant sought to challenge the confiscation order on
various bases which I need not repeat here
except to note that in a
cross appeal launched by the applicant against the defendant’s
appeal, magistrate
Cooney’s
finding that the
appointed curator
bonis
was not entitled to
fees and disbursements passed without demur on the applicant’s
part.
5
Much was made of
the defendant’s failed attempts in various forums to set aside
or vary the confiscation order, but I am
satisfied that both parties
appear to have accepted ultimately – and indeed the applicant
has insisted that it is the position,
that the confiscation order is
definitive of the matter and final in effect. The defendant’s
last formal attempt to challenge
the order on appeal was scuttled
when the high court struck the matter from the roll on 4 November
2011.
On 23 November 2011
- and pointedly with regard to the period indicated in the
confiscation order relative to the conclusion of
the appeal in mind,
the defendant’s present husband,
Phil
West
,
paid a sum of R158 970.92
6
to the curator
bonis
in satisfaction of
the order. The amount paid included interest provided for in
paragraph 6 of the order which, on the applicant
or curator’s
calculation of when the 15
th
day was fixed in
time
7
amounted to
R25 837, 08. At the time
West
made the payment he
reserved the right - on the defendant’s behalf, to challenge
the amount which the applicant contended
was due in this regard.
Other than the
additional amount in lieu of interest calculated by the curator -
which the applicant accepted stopped interest
from running from the
date on which
West
paid it, it has not
otherwise been suggested that the amount paid on the defendant’s
behalf was short of the capital or
interest specified in the order.
However, the applicant persists in applying for realisation of the
defendant’s property
still held by the curator
bonis
under restraint in
order “
to
pay the curator bonis
costs
(fees and expenses) as approved by the Master as envisaged in
section 28(3)(c) read with regulation 2 of the POCA
”
which includes not
only fees incurred to date in administering the surrendered property
held under restraint, but also such further
costs as will be
incurred in the process of realisation. In effect therefore this
application is for the leave of this court
to permit the defendant’s
property to be realised strictly for purposes of defraying the
curator’s costs which were
not made provision for in the
confiscation order.
8
The defendant –
who is unrepresented, raises two objections
in limine
to the
applicant’s application.
The first is that,
since by the applicant’s own admission in the founding
affidavit the confiscation order was satisfied,
this brought a
conclusion to the proceedings within the meaning referred to in
section 17(d), thus precluding the grant of a
realisation order by
virtue of the provisions of section 30(1)(c) of POCA.
In addition, so she
contends, the rescission of the restraint order by the High Court
“
became peremptory
” in terms of section 26 (10)
(b) of POCA once the confiscation order was satisfied and the
proceedings thus concluded.
The order which the applicant seeks is
therefore “
defective
”. Both objections were
dismissed out of hand by Mr
Kingsley
appearing on behalf of
the applicant as “
red herrings
” and bad in law.
On the merits the
defendant claims that the application is an abuse of process and
vexatious because the applicant is disingenuously
seeking to claim
the curator’s costs which were “
excluded in terms of
the restraint order paragraph 1.4.16 in conjunction with paragraph
1.4.4 as well as excluded in the judgment
and order of Magistrate
Cooney
.” The applicant persists in reply that the property
under restraint is realisable thus entitling him to obtain an order
towards this end.
The defendant also
counterclaims for a rescission of the restraint order and for a
further order directing the applicant, alternatively
the curator
bonis
, to repay the sum of R25 837.08 overpaid as “
interest
upon the confiscation order and 15.5% interest on the quantum paid
as interest
”.
In his replying
affidavit the applicant purports to reverse the admission made in
the founding affidavit that
West
paid what was due in terms
of the confiscation order by creating what is in my view an
artificial dispute of fact,
viz.
that the payment could not
have been made in “
satisfaction
” thereof because
of the tentative nature of the tender by him on the defendant’s
behalf. In this regard it is contended
that the wording of the
letter giving cover to the cheques comprising the total payment is
“
ambiguous at the very least
”. It is further, as
the applicant avers, an “
ostensible conditional payment
.”
He adds his denial that the defendant has satisfied the confiscation
order “
in the light of the fact that she is bringing a
counter claim for part of monies paid to the curator bonis
.”
It is in my view
however of no moment that
West
appeared tentative when making
the payments on his wife’s behalf. The objective fact is that
the appeal/review process
ran its course and the payment was made
before the 15
th
court day after the appeal was struck
from the roll. The applicant accepted that the amount advanced
comprised the capital and
in duplum
interest component, and
further that the additional payment (specifically asked for) stopped
further interest from running. That
West
protested against
the curator’s calculations concerning the interest arising
from the confiscation order does not in my
view operate to negate
the payment. It certainly did not influence the applicant’s
acceptance of the amounts paid by him.
If he had any reservation in
this regard it was not so expressed in the founding affidavit but
was raised for the first time
in reply to counter the suggestion
that the effect thereof was to have brought a conclusion to the
proceedings.
Also the
applicant’s appreciation of the payment as an
ex
gratia
one
– and the failure of
West
to clarify whether
he was making it on the defendant’s behalf as a gift or loan,
are similarly in my view of no significance.
A confiscation order –
despite what is suggested by its label, is not made for the
confiscation of a specific object but
is a civil judgment for the
payment of an amount of money to the State.
9
Of course if a
defendant who has been convicted at the stage of the enquiry still
possesses criminally acquired goods those will
be confiscated but,
conversely, if he is no longer so possessed he will be deprived of
assets of equivalent value if he has any.
10
A confiscation
order is directed at confiscating the
benefit
that accrued to a
defendant and depriving him of it. The object therefore is not to
penalise a defendant in the sense that it
is only he or she who can
satisfy the order although Mr
Kingsley
sought to suggest
in argument that it was the defendant - being the person involved in
the crime,
who
ought to bear the brunt of making good the value of the benefit
received by her.
Evidently in this
instance the defendant had access to the restrained asset from which
she could comfortably meet payment of the
judgment, but perhaps the
difficulty was that she was prevailed upon in a very short space of
time,
after
it was accepted that there was no longer going to be an appeal or
review of the confiscation order,
to
come up with the monies from a source outside of the realisation of
the very property held as security to satisfy the anticipated
judgment. The cooperation of the applicant at the time might have
allowed the defendant to resort to the security rather than
accepting
West’s
assistance on her
behalf. But in any event I find nothing remarkable or unnatural
about the fact that the payment ultimately came
from the defendant’s
spouse. Even by the payment on her behalf the defendant remained
deprived of her ill-gotten gains
11
and the objective
of the confiscation order was thereby adequately achieved.
The question for
determination in this matter is whether - given the peculiar turn of
events, the applicant is entitled still
to pursue a realisation
order; or indeed to have this court redress the issue of the
curator’s entitlement to costs which
the regional magistrate
declined to allow as providing a basis for a realisation order.
On both accounts
the answer must be a resounding “
No
”
.
On the first part, the purpose of a restraint order is to preserve
property in the interim pending a reasonably anticipated
conviction
and confiscation order being issued, so that the property restrained
thereby will be available to be realised in satisfaction
of such an
order.
12
It is by its very
nature a temporary interdict. Once the confiscation order has been
satisfied (by whatever means in my view if
the applicant accepts the
payment), the basis for the security falls away and hence also the
raison
d’être
for
a subsequent realisation order - which is in effect an order for
execution in respect of the property restrained in order
to meet
payment of the confiscation order. That this was intended by the
scheme of POCA is made clearer by the provisions of
section 30 (1)
which requires among its jurisdictional facts for the issue of a
realisation order that “
the
proceedings against (
the)
defendant
have not been concluded
”
.
“
Proceedings
”
in this regard is a
reference to those contemplated by Chapter 5.
13
Section 17 in turn
provides that proceedings against a defendant shall be concluded,
inter
alia
,
when “
the
defendant satisfies the confiscation order made against him or her”
.
Section 26 (10) (b) further provides that a final restraint order
stands until the proceedings against the defendant are concluded.
By
the applicant’s own admission the order has been satisfied. To
argue that it has not because it does not take account
of curator’s
fees which were expressly disallowed is an artificial one.
On the second part,
although it was certainly envisaged by the restraint order that the
curator’s fees would be sourced
from the proceeds of the
confiscation order, the order that was ultimately granted by the
regional court pointedly put paid to
that eventuality. If the
applicant was unhappy with this unexpected consequence he ought to
have challenged this aspect of the
order on appeal or review but was
particularly selective regarding the features thereof which troubled
him. Therefore the order
stands, and is final and definitive of the
matter.
The applicant
appears further to have overlooked the fact that the curator’s
powers (and the basis for his entitlement to
payment of his
professional fees and disbursements) had already been provided for
in par 1.4.16 of the restraint order in clear
and peremptory terms
which, as it turned out was subverted somewhat by the magistrate
making the confiscation order but refusing
the curator’s
costs. Although a high court may in terms of section 28 (3) (c) of
the POCA “
at any time
” make an order relating to
the fees and disbursements of a curator after his appointment (and
indeed vary or rescind such
order) a proper reading of section 28 as
a whole indicates that the cut-off date by when such relief can be
entertained is up
to the point of the issue of the confiscation
order because subsection 3 (a) envisages that such an order will
make allowance
for the curator’s costs to be paid from the
expected proceeds. Additional costs post realisation may seemingly
be authorized
by the provisions of section 30 (2) (b) when a
realisation order is sought, but that presupposes that the court is
entitled to
issue a realisation order in the first instance. Further
there are only two sources for the payment of such fees: They are
either
payable from the confiscation proceeds if such order is made,
alternatively they are payable by the state where no confiscation
order is made.
In this particular
instance - and given that a basis exists in my view for the
restraint order to be discharged (I return to deal
with this aspect
below), it appears proper that the state ought to be ordered to pay
the costs of the curator
bonis
.
14
To
insist in the circumstances on extracting them from the defendant
(who is incidentally entitled to finality) when they were
expressly
disallowed - simply because the tenor of the POCA is that they ought
properly to be borne from the estate of the restrained
realisable
property, cannot be countenanced.
The curator in this
instance has no authority to keep a hold over the restrained assets
with a view only to ensuring that the
property is realised to defray
his costs, provision for which was expressly disallowed by the
magistrate.
15
Likewise any bid by
the applicant to realise the property strictly in order to
accommodate the payment of such refused fees would
be in contempt of
the confiscation order and against the purpose of the POCA and the
restraining order (which in effect no longer
has any efficacy).
Although I should
have dealt with this first, the next issue for determination is
whether there is any merit in the defendant’s
preliminary
arguments and whether or not she had made out a case for a
rescission of the order.
I have already to
an extent dealt with all of these questions above. The satisfaction
of the confiscation order by the defendant
(or on her behalf in
circumstances where the payment was accepted) had an important
consequence in the customary progression
of the three stage process
envisaged by Chapter 5 of the POCA which has as its apex the issue
of a realisation order. It rendered
nugatory the need for what the
applicant termed the “
next procedural step
”. This
is because the proceedings against the defendant have been concluded
on the objective facts and by virtue of the
deeming provisions of
section 17.
Self evidently the
purpose for which the restrained property was being held fell away
once the proceeding against the defendant
were concluded. Once this
stage is reached, section 26 (10) (b) provides a peremptory basis
for this court to rescind the restraint
order. The reason for this
is in my view to guard against the infringement of a defendant’s
property interests where no
lawful basis exists any longer for a
restraint to be in place. Our courts have warned of the draconian
nature of restraint orders
and the need for these to be strictly
circumscribed and, by necessary extension, only for so long as a
rational need is served
thereby.
16
Since the defendant
has succeeded in establishing on a preponderance of probabilities
that the proceedings against her in terms
of Chapter 5 have been
concluded within the meaning envisaged by section 17 I am under the
circumstances obliged to immediately
release the her remaining
property from under the restraint,
The final issue for
consideration is whether she has established her entitlement to the
second order prayed for in the counter-application.
In this regard she
pleads that the difference in approach between her and the
applicant/curator concerning the additional payment
which is was
contended was necessary to stop the running of the interest
contemplated by paragraph 6 of the confiscation order
relates to the
peculiar interpretation accorded by them to the phrase in paragraph
5.2 “...
if
an appeal or review is lodged
”
.
The applicant argues that only a legitimate appeal or review was
contemplated thereby. Accordingly he fixed the running of interest
from the 15
th
day after the
period allowed for an appeal or review, i.e. from 10 August 2010
(
sic
)
17
,
which was a date fourteen days after the grant of the confiscation
order. The applicant expressly disavows that the running
of interest
was meant to be suspended during the intervening period when
according to him the defendant pursued an abortive appeal.
The
defendant on the other hand claims that interest would only have run
from a date fourteen days after the appeal was struck
from the roll
on 4 November 2011, which eventuality did not arise since payment of
the capital was effected within the grace
period of fourteen days.
18
It is not otherwise
in contention that the additional amount paid was in the exact
amount directed by the curator which favoured
the applicant’s
interpretation that the interest in terms of paragraph 6 commenced
running on 10 August 2010.
An appeal was
“
lodged
”
by the defendant
albeit she ostensibly failed to comply with the rules of court in
this regard thus resulting in her being non
suited when the appeal
was argued. The applicant himself pursued a cross appeal and it was
on the basis of a set down by him
that the defendant ultimately
found herself before the high court when the matter was struck from
the roll on 4 November 2011.
On a clear reading of paragraph 5.2 of
the order however it was not contemplated that only an appeal lodged
by the defendant
could suspend the running of interest. Further and
in any event the applicant gave the impression by his conduct in
noting the
cross appeal that he considered the allegedly defective
appeal lodged by the defendant to be alive and justiciable. In fact
he
believed the issues raised by him on appeal to be of considerable
importance
19
worthy
of keeping the appeal process alive, albeit it was eventually
accepted that it was in the interests of finality to dispense
with
it after the matter was struck from the roll on 4 November 2011. It
would therefore in my view be absurd to conclude that
no appeal was
lodged within the meaning contemplated by paragraph 5.2.
I find in the
circumstances that the interest contemplated by paragraph 6 did not
commence to run and that payment of the amount
referred to in
paragraph 4 was timeously effected within the grace period for
payment to be made after the “
disposal
”
or “
abandonment
”
of the appeal.
The amount paid on
the defendant’s behalf by
West
in lieu of interest is
separate and over and above the capital amount indicated in the
confiscation order which it is common
cause will be paid to Mr Hans
Heimann Herman, the founding member of Gauge Tools. It fairly
represents what the defendant is
entitled to recover from the
curator arising from this court’s interpretation of clause 5.2
of the confiscation order.
It appears to me proper that the
defendant should be reimbursed as there was no basis for the curator
to retain the payment beyond
the defendant’s preparedness to
advance the amount to secure a conclusion of the proceedings at
least on the applicant’s
interpretation of what amount would
be required to achieve this effect. There further appears to be no
reason why, having been
deprived of the loss of the monies advanced
on the basis that she hoped to be refunded upon the prospect that
the monies were
found not to be due, she should not be entitled to
recover
mora
interest from the date that the payment was
made.
In the result I
issue the following order:
the restraint
order is hereby rescinded;
the curator
bonis
appointed pursuant to the restraint order is discharged;
the state is
ordered to pay the fees and expenses of the
curator bonis
arising from his control of the restrained assets in respect of
which he was appointed;
the
applicant/curator is ordered to pay to the defendant, within
fourteen days of the date of this order the sum of R25 837.08
representing the amount overpaid in lieu of interest specified in
paragraph 6 on the confiscation order;
the amount of R25
837,08 aforesaid shall bear interest at the legal rate of 15.5% per
annum calculated from 23 November 2010
to date of final payment;
and
there will be no
order as to costs.
________________________
B C HARTLE
JUDGE OF THE HIGH
COURT
Date of hearing : 31
May 2012
Date judgment
delivered : 6 September 2012
Appearances:
For applicant: Mr
W Kingsley together with Mrs F Hack
Instructed by:
The State Attorney, 29 Western Road, Central, Port Elizabeth, Ref.
1247/2004/Y (Mr Myburgh)
For defendant: In
person
1
The
respondent is referred to in this judgment as “
the
defendant
” within the meaning contemplated by the
definition of that appellation in section 12 (1) of the POCA.
2
This
paragraph of the order ends abruptly there, but the judgment
clarifies how the amount was calculated as follows: “
It is
common cause that she benefited from the theft in the amount of
R157 651, 92 and that of this R91 085, 00 was
repaid to
Gauge Tools. This leaves an amount of R66 566, 92 of the stolen
money still to be repaid to Gauge Tools
”. Further in the
judgment he finds the
in duplum
rule to be of application and
thus doubles the amount payable: “
An appropriate amount
would therefore include interest from the
mora
dates but the total interest will, by operation of the
in
duplum
rule, be limited to the total capital amount being
R 66 566. 92. The
total amount
therefore
capital R66 566. 92 plus interest R66 566. 92 =
R
133 133.84
.
”
3
The
full text of this provision is as follows:
“
18(1) Whenever a defendant
is convicted of an offence the court convicting the defendant may,
on the application of the public
prosecutor, enquire into any
benefit which 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,
and, if the court finds that the defendant has so
benefited, the court may, in addition to any punishment which it may
impose
in respect of the offence, make an order against the
defendant for the payment to the State of any amount it considers
appropriate
and the court may make any further orders as it may deem
fit to ensure the effectiveness and fairness of that order.
”
4
It
is not clear why this presented an obstacle to the inclusion of the
curator’s
fees in the amount to be paid in terms of
section 18(1) since the ambit of these is determined with reference
to the provisions
of Regulation 2 promulgated under the POCA. It
would have been sufficient to have referred to such costs as are
allowable in
terms of the Regulations. Seemingly the magistrate’s
unwillingness to include the curator’s fees had less to do
with
the question of his entitlement to these under the POCA than
with his unwarranted concern that they should be absolutely
quantified.
The notion that a curator ought to be reimbursed for his
professional fees and disbursements in caring for and managing
assets
under a restraint order from the confiscated proceeds if a
confiscation order is granted appears to be consistent with the
provisions
of section 28 (3) (c) and the general scheme of the POCA.
5
In
the notice of cross appeal delivered by the applicant he sought to
challenge only the finding that the
in duplum
rule applied to
the determination of the appropriate amount; and the court’s
failure to have awarded costs to him, including
the increased costs
of counsel employed at the confiscation hearing.
6
The
defendant paid a further amount of R25 837.08 over and above the
capital amount referred to in the confiscation order. This
further
amount represented interest upon the quantum of the order as
calculated by the curator
bonis
and was paid to satisfy the
order upon the applicant’s interpretation thereof.
7
On
the applicant’s argument the appeal lapsed on 9 November 2010
in terms of Rule 50 (4) (a) of the Uniform Court Rules.
8
That
this was the manifest purpose of the application was confirmed by Mr
Kingsley
who appeared for the applicant during argument. When
I queried what, if any amount was still due in terms of the
confiscation
order, he clarified that what was still needed was the
curator’s costs which had not being addressed by the regional
court.
9
Shaik
v S
[2008] ZACC 7
;
2008 (5) SA 354
CC at para [24].
10
Organized
Crime and Proceeds of Crime Law in South Africa
, Albert Kruger
at p75
11
National
Director of Public Prosecutions v Rebuzzi
2002 (2) SA 1
(SCA) at
par [19].
12
National
Director of Public Prosecutions v Rebuzzi
2001 (1) SACR 128
(SCA) at par [4].
13
See
the introductory paragraph to section 17.
14
NDPP
v Tam and Others
2004 (1) SACR 126
(W) at 131 b
15
See
Phillips & Another v Van Der Heever N.O. & Others
[2005]
2 All SA 417
(W) generally concerning the exercise of the curator’s
powers within the strict confines of the powers permitted by the
restraint order. This matter is
inter alia
authority for the
proposition that until such time as a confiscation order is granted
a curator may not recover any fees or expenditure
however
legitimately incurred from the restrained assets. How much more so
must this be the case where the confiscation order
expressly
disallows the recovery of these by the curator from the confiscated
proceeds?
16
National
Director of Public Prosecutions v Walsh
& Others
2009
(1) SACR 603
(T) at par [24].
17
This
date should be 16 August 2010 with due regard to court days
18
In
this regard see the definition of “court day” in
relation to court orders in both the Uniform Court Rules and the
Rules promulgated under the Magistrate’s Court Act, no 32 of
1944.
19
This
is evident from a transcript of the appeal proceedings attached to
the applicant’s replying affidavit.